Capital Requirements (Amendment) (EU Exit) Regulations 2018

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 19th December 2018 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister says that this is essential good responsible planning from a Government in case there is no deal. Would it not then have been more helpful to Parliament as a whole had the Prime Minister not pulled the expected votes last week, so that Parliament could have voted on whether it considered no deal an acceptable option at all?

[Lord Bates]

The responsible thing to do would have been for Her Majesty’s Opposition to support the deal on the table. Then we would not need these no-deal statutory instruments.

Police: Cuts

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 28th October 2015 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what assessment they have made of the potential impact on national security of the cuts in police numbers.

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, the Government are committed to providing the resources needed to protect our national security. In the summer Budget this year, the Chancellor announced that counterterrorism spending would be protected in real terms over the next spending review period. The size and make-up of the police workforce is a matter for chief constables to take locally in conjunction with the democratically elected police and crime commissioners.

[Baroness Smith of Basildon (Lab)]

My Lords, crime today is very different from crime 40 or 50 years ago. We have serious threats from counterterrorism, as the noble Lord identified, and, as we have seen this week, from cybercrime. I am sure that the Minister appreciates that security and counterterrorism are not just about new legislation but also about mainstream policing. Local knowledge is vital to that work, as has been pointed out by the head of counterterrorism, Mark Rowley, Peter Clarke, the head of specialist operations, and the Met commissioner, Sir Bernard Hogan-Howe. Because of the further cuts, not in the counterterrorism area but in local policing—the eyes and ears on the ground—Sir Bernard Hogan-Howe has said:

“I genuinely worry about the safety of London”.

Does the Minister share the concerns of those professionals or does he think that they are wrong?

[Lord Bates]

The noble Baroness is right when she talks about crime changing. It is changing and policing must change in response to it. On the specific comment made by Sir Bernard Hogan-Howe, earlier this year we had Operation Strong Tower, which tested the resilience of the capital to terrorist attacks. Following that, Sir Bernard said:

“With events like today we are committing around 1,000 people to exercise our plans and make sure that should the worst happen we are ready. And we will be”.

In other words, he was saying that he felt that there was a resource available to protect the capital. Of course, we are in the midst of a very difficult spending round and set of discussions. There is a new policing formula on which we are consulting at this very moment. The outcome of that will be known in November and we will respond further then.

Hunting Act 2004

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 15th July 2015 Lords Chamber

[Lord Bates]

My noble friend makes me grateful for that provision in the manifesto which the noble Lord, Lord Dubs, referred to, that it is a free vote on these matters.

[Baroness Smith of Basildon (Lab)]

My Lords, is not a pattern emerging regarding the Government’s attitude to legislation and the role of Parliament? Both the Delegated Legislation Committee and the Constitution Committee have expressed concerns about a worrying trend to limit scrutiny in this House. We have the absurdity of the Government’s trying to rush through English votes for English laws with a multi-page amendment to the Standing Orders of the House of Commons with no reference to or debate in the House of Lords. Then, with the fox hunting legislation, we have a pantomime of trying to change—whatever the noble Lord says, it would change—the intent and the purpose of primary legislation through an amendment in secondary legislation. Are these examples the amateurish, foolish mistakes of inexperienced Ministers, or are the Government now frightened of sensible scrutiny?

[Lord Bates]

They might be, but the question is: which Ministers? The power to vary the exemptions was in the Act introduced by the Labour Government in 2004. Section 2(2) provides for the ability to amend Schedule 1 to the Act. We are simply taking the opportunity and advantage of the provision that they wisely put into the legislation.

Undercover Policing

Debate between Baroness Smith of Basildon and Lord Bates

Thursday 26th March 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for repeating that Answer. He will be aware that this is not the first time that we have debated these issues in your Lordships’ House. He may recall the debates about the women who had children in what they believed were genuine, long-term stable relationships, yet had been conned by undercover officers who cast them off at the same time as they cast off their assumed identity. We also recall that my noble friend Lady Lawrence and her family were spied on with no justification whatever.

Today’s allegations are equally shocking, and quite chilling. People have been investigated not for any wrongdoing or alleged crimes but for their political beliefs. I recall taking part in a very peaceful protest. If I tell noble Lords that it was on Boxing Day, they might guess the reason why I was there: it was a protest against the local hunt. I felt a sense of injustice in being followed and filmed with a police camera in my face while those who were abusing and threatening me were just ignored. Clearly, changes must be made.

I welcome the commitment that the Minister has just made regarding Lord Justice Pitchford’s inquiry, which, as I understand what he said, will be wide. Although the terms of reference have not yet been set, it is intended to include the allegations that have been made in the press today. Getting to the bottom of that will be very welcome, and I thank him for that commitment.

I agree about the importance of undercover policing. We all recognise that it is an essential evidence-gathering tool for some of the most serious crimes, and I pay tribute to those officers who, behaving completely appropriately, put themselves in very dangerous situations to protect others from serious and harmful crime. However, it is clear that new safeguards are needed.

The Minister may recall that we proposed, during the passage of a Home Office Bill in this Session of Parliament, that there should be independent pre-authorisation of undercover work, perhaps by the Office of Surveillance Commissioners. Here I am thinking about long-term covert operations; short-term for a couple of hours is a different matter, but for long-term covert operations there has to be some kind of independent prior authorisation. The Government previously rejected that but, in the light of their response on the Lord Justice Pitchford’s inquiry, I hope this is something that they will reconsider

[Lord Bates]

I thank the noble Baroness for her welcome. I totally agree with her in paying tribute to the work of undercover police officers, who by and large do an incredibly important job in keeping us safe from terrorist threats and from serious and organised crime. It is a vital tool in policing, giving us an opportunity to bring forward evidence that can be used in court to ensure that prosecutions are made.

The noble Baroness rightly referred back to some of the cases that we have had in the past of inappropriate relationships during undercover policing. That was of course one of the reasons why the National College of Policing introduced a code of ethics that all undercover police officers must abide by. It is important that the review looks at this. Historically, there have been failings. There have been a number of investigations by the police themselves into a whole series of allegations, but we recognise that there have been failings and that is the reason why we need to go further.

On the specifics about the Office of Surveillance Commissioners, it is a fair point. Sir Christopher Rose is widely respected, and that is something that we could look at. At the moment, deployments lasting longer than 12 months must get prior approval from the Surveillance Commissioner and be authorised by a chief constable or equivalent.

Police: Reduction in Numbers

Debate between Baroness Smith of Basildon and Lord Bates

Thursday 26th March 2015 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what assessment has been made of the impact on community safety of the reduction in police numbers, including the reduction in traffic police.

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

I am realising the disadvantage of immediately following on when the previous Question went short on time. Decisions on the size, composition and deployment of the police force’s workforce are for individual chief officers and police and crime commissioners to take. They have clearly demonstrated that, with reform, it is possible to deliver more for less. Crime has fallen by more than a fifth under this Government according to the independent Crime Survey for England and Wales, making our communities the safest they have been since records began.

[Baroness Smith of Basildon (Lab)]

My Lords, chief constables can act only within the budget given to them by the Government. The stock response is that crime is falling. But, having lost 17,000 police officers, does the Minister regret that, of 100,000 crimes last year, fewer than 28% were solved? That is less than one in three. Reported rapes are up by 30% but there is a 14% fall in prosecutions under this Government. Violent crime is up by 16%. Overall prosecutions are down and 9,000 fewer crimes have been solved. Does he not consider that the police and the public deserve better if we are really serious about having safer communities?

[Lord Bates]

I certainly agree about the importance of having safer communities. That is why it is not a stock answer to point out that fewer crimes are happening than at any time since that survey came into being in 1981. It is not something to be complacent about. It is due to the tremendous efforts which the police are making. Nor are we simply saying that reductions in budgets are not a serious matter. We are saying that there needs to be those reductions. As the Police Federation recognised, there needed to be reductions to make sure that we balance the economy. We have reduced bureaucracy by 4.5 million hours, which is the equivalent of 2,100 police officers. Also, we have said that we do not want police officers in back offices but on the front line. We have increased the proportion of police officers who are now serving on the front line. The combination of those two things is why crime is falling.

Private Investigators

Debate between Baroness Smith of Basildon and Lord Bates

Thursday 26th March 2015 Lords Chamber

[Lord Bates]

My Lords, I know that, as a former chair of the Security Industry Authority, the noble Baroness feels passionately and cares deeply about this. Of course, that is one of the points. The Security Industry Authority was introduced in the 2001 Act and set up then. If it was such a no-brainer, of course it could have been done a little earlier than 2010. However, we have gone out to consultation on this and the Home Secretary has made it abundantly clear that in both the instances that the noble Baroness mentioned we intend to legislate. We have not had time to do so but it will be done early in the next Parliament. That is a commitment which we have given and which I am sure the noble Baroness opposite will want to echo.

[Baroness Smith of Basildon (Lab)]

My Lords, I find the Minister’s answer incredible. The consultation that he referred to was nearly three years ago and it had the highest number of responses of any consultation except that on gay marriage. In fact, the responses were unanimous on that occasion. Does the Minister realise that fewer police officers means that private security is replacing and working alongside the police, and often the public do not know who are the police and who are private security. The Government promised to regulate the companies but have refused to do so. We have an industry whose members are united in wanting regulation to protect the public and to protect their businesses from rogue traders, dodgy companies and criminals—so in whose interests are the Government refusing to act?

[Lord Bates]

We are not refusing to act. In case it has escaped the noble Baroness, lots of other pieces of legislation have been going through during this Parliament. We have not managed to get this regulation in. It is a priority, it is something that we are committed to and it will happen early in the next Parliament.

Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015

Debate between Baroness Smith of Basildon and Lord Bates

Monday 23rd March 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, this is a larger number of instruments but a shorter debate than usual. We support the regulations and order, but it would be helpful if the noble Lord were able to answer a few questions. To take the last one first, paragraph 8 of the Explanatory Memorandum for the Civil Procedure (Amendment) Rules, on “Consultation outcome”, says:

“The Lord Chief Justice was consulted … Due to the urgency … there has been no public consultation”.

But that is not the outcome; it just says that he was consulted, without saying what the response was. If there was an outcome to the consultation, it would be helpful to know what it was, otherwise there does not seem much point in calling it an “outcome”.

The points made by the noble Baroness, Lady Humphreys, on the Counter-Terrorism and Security Act regulations are interesting and valid ones to look at. I would also have thought that in many cases the officers concerned would not want, in their own interests, to be searching a child, whether of the same sex or of the opposite sex, on their own. If I was their trade union representative, I would probably advise them not to. There are dangers to the child, but there are also dangers to the officers concerned. That is something that perhaps should be examined and considered. Our staff do a very difficult job in difficult circumstances and we would not want them to be in a position where they could face accusations; nor would we want a child to feel uncomfortable and even more frightened than they would already be in such cases. I hope the noble Lord is able to give some reassurance and clarification on those points.

The other point I would like to make concerns the risks identified in the impact assessment. It says:

“Possible risks will be mitigated by monitoring and reviewing the use of the powers”.

The powers will be used by Border Force officers and the police but they are the very people who will also be monitoring the use of the powers, or they will at least be collecting the data to monitor the use of the powers. This has been quite a sensitive issue and has had a lot of discussion. Clearly, I am confident that the Government do not want mistakes; they want to get this right. Can the Minister say anything about how the powers will be monitored? Data will be provided by the officers implementing this provision but the monitoring of it will be quite important so that we can assess how effective it is and how appropriately it is being used, to ensure that it is not used for anything other than the purposes for which it is intended.

The authority to carry scheme regulations and the explanatory memorandums—I am sure that is not the correct plural—all referred to the fact that 28 people or organisations responded to the consultations. Was there one consultation or will 28 bodies respond? Was there one, overarching consultation or separate ones? I think it will be helpful to look at the ones relating to the authority to carry schemes together. It was quite clear that the majority of carriers welcomed the extension of the scope and that was widely supported, although a majority were also concerned that the maximum fine of £50,000 was excessive. I have seen the Government’s response to that. What is important is when that will be implemented. Looking at the Explanatory Note, I am not 100% clear about “best endeavours”; one of the impact assessments also refers to the Secretary of State taking into account how co-operative someone has been. It would be helpful to have a little more guidance on the circumstances in which the Government would pursue action that could lead to a maximum fine. I know that the maximum fine is used only rarely and is intended to be a deterrent but I would like to know the circumstances that would mistake against prosecution in the first place and, secondly, the level of the fine.

The guidance for these regulations has not been published. A lot will depend on what exactly is in the guidance. Is the Minister able to say when we will see it, what the process will be for scrutinising it, whether there will be consultation with the carriers themselves and when it will be brought to your Lordships’ House?

I also picked up the strange issue about mistaken identity. The Explanatory Memorandum says:

“Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.

Surely we should have far more robust processes in place if we want to have confidence in the procedure. If mistaken identity occurs once, it surely should not happen to the same individual a second time, or perhaps I am misunderstanding something here. I would like to know what administrative arrangements are in place to ensure that we do not have a second mistaken identity. Really, what are we doing to ensure that we do not have the first mistaken identity? The issue of identification is crucial to providing confidence in this. I am slightly worried.

I understand that there will be some discussions with the industry about the guidance. I would feel happier to see a willingness to make practical changes in how things work. Quite often we can look at something in theory and know where we want to get to, but the industry may have suggestions on how that works practically rather than just in theory. I would like an assurance from the Minister that the Government will consider changes if the industry comes up with ways in which to make this scheme more effective without undermining the basis for it in the first place.

I have similar points to make on the Passenger, Crew and Service Information (Civil Penalties) Regulations, as similar things have arisen. The Explanatory Memorandum states that:

“The Government’s position however remains that carriers must provide accurate, complete and timely information. Not only is this a legal requirement but they also have a responsibility to ensure adequate steps are taken to protect against threats to their assets, passengers and crew”—

and indeed to the country. If a mistake has occurred, what evidence will the Government require from carriers to ensure that they have used best endeavours? Is there some way of monitoring the processes, procedures and protocols that they have in place? That will be absolutely crucial to ensuring that it works in practice.

On the fifth and sixth statutory instruments, the Minister knows that we have supported the power for passport retention and think that it is appropriate. We still take the view that there should be a power of appeal; that is extremely important. Again, the detail of the code of practice will be crucial and we look forward to more information on that. Can the Minister make clear—just to put it on the record—what changes have been made to the code of practice and any guidance as a result of the feedback on the issues? That feedback is mentioned in the Explanatory Memorandum on these regulations and includes,

“specifying the availability of legal aid and clarifying whether family members may access temporary support arrangements”.

Those issues were raised in previous debates that we have had, and by the Joint Committee on Human Rights. If the Minister can give further clarification on that, that would be very helpful.

That is the extent of my questions to the Minister. If he is unable to address those today, he can write to me, which would be extremely helpful.

[Lord Bates]

My Lords, I am grateful for the contributions that have been made in the debate. I am deeply conscious that there are a large number of orders and regulations before your Lordships this afternoon. The detail of the questioning is very welcome and important—we are talking about very serious issues—and I guess that it will not be possible for me to answer every particular question today. However, I will certainly undertake to write, and copy it to all noble Lords who have been involved in this debate so far.

I will make one general point about the authority to carry scheme and how it operates—this covers the point that was raised about identity and the possibility of mistakes and, in many ways, touches on the point made by my noble friend Lord Marlesford. This is information that the airlines are currently required to send to the National Border Targeting Centre based in Manchester. The information comes in a particular format: it has the passport as one identifier and the date of birth as another identifier, along with the name. It is hoped that through triangulating those three bits of important information the possibility of a mistake can be eliminated.

My noble friend Lady Hamwee asked what changes we are making as a result of this order. Effectively, the changes that we are making in relation to that area are that, in the past, it was for inbound flights. The information on people coming into the UK had to be submitted in advance, cleared and checked against the no-fly list. We are now saying that, where inbound journeys are taking place through certain ports or rail terminals and where UK citizens are travelling abroad for obvious reasons—for instance, if there are flights from London to Istanbul or via Barcelona with an end point in Istanbul—that would raise certain questions. Therefore, we are now asking for that additional information to be provided.

--- Later in debate ---

[Baroness Smith of Basildon]

I asked whether there was one consultation on all the statutory instruments grouped together, or one consultation on each statutory instrument.

[Lord Bates]

There was one consultation on all the statutory instruments together. If that is not correct in some way, I will set that out in writing.

The intention is to work with carriers, not to fine them £50,000. The UK Border Force already works with carriers, and this will continue. Fifty thousand pounds is for the worst-case breaches. Of course, carrying somebody who we consider to be a sufficient threat to be on a no-fly list is not only a foolish thing to do but a very dangerous thing to do, not only for the airline but for the other passengers and the crew of that airline. Therefore it is right that the penalty is strong, but we hope that it will not be necessary.

I think that I have touched on most of the points raised. The noble Baroness asked about monitoring the use of the power and whether the code explains how to use the power. The code includes a section on monitoring the use of the power, which confirms that the police must consider whether there is any evidence that the power is being used on the basis of stereotyped images or inappropriate generalisations. It must review whether the records reveal any trends or patterns that give cause for concern, and, if they do, take appropriate action to address this. Monitoring records should, where possible, include age, disability, gender, race, religion and beliefs, and sexuality. It also confirms that the power is subject to review by the Independent Reviewer of Terrorism Legislation.

In what circumstances would a maximum fine be given? I have covered that already.

On engagement with NGOs, we undertook a six-week public consultation to raise awareness of the consultation. We notified key stakeholders, including law enforcement, community and regulatory organisations, that consultation had begun, and invited their views. The code focuses on disrupting travel for terrorist-related purposes and on wider safeguarding children issues that are routinely considered by the police.

My noble friend Lady Humphreys asked whether civil liberties organisations in particular had been consulted. I think that the answer is that the stakeholders that we consult include civil liberties organisations; I would expect that to be the case. If that is not the correct answer, of course I will write to her.

With the answers that I have given thus far and the assurances that I have given on continuing the dialogue, particularly in relation to children, I commend the statutory instrument to the House.

Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015

Debate between Baroness Smith of Basildon and Lord Bates

Monday 23rd March 2015 Lords Chamber

[Baroness Smith of Basildon]

The noble Lord refers to one issue, but the Home Secretary raised several today, and I assume that this guidance forms part of it. I hope that it is not a delaying tactic for the order before us today. On a rare occasion, I disagree with my noble friend Lady Lister, who said that it was “regrettable” that it was not with us. Although it is in some ways, it is also an opportunity. The noble Lord was very helpful, and when we had our discussions previously he said that he would engage—or that there would be engagement, if not with him personally—with those who would be responsible for implementing such guidance. I always think that guidance and legislation are effective only if they can be implemented in practice—the workability test that was spoken about so often with regard to other legislation. It cannot just be a theory; it has to be something that works. I hope that this will be an opportunity for the Government to engage with the universities and those who will have responsibility for implementing the guidance on who has responsibility for the duty so that they can discuss with the Government—I hope that those discussions are taking place now—how to make this sensible, practical and effective.

One final point, which has been raised by other noble Lords, is the relationship between HEFCE, as a monitoring body, with other bodies. It is not a funding body; I share the concerns of the noble Lord, Lord Butler, that it is to be hoped that the Government are not planning to set up a completely new quango to monitor that. However, I understand that meetings were due to take place last week, on 20 March, with HEFCE and other bodies to discuss how that could work. It would be helpful if the Minister could enlighten us on any progress that was made at those meetings.

A number of questions have come out of this debate, but I hope that the noble Lord will take away with him our gratitude for having seen significant changes; we are grateful to him for listening, because that is not always the case. I hope that we have not wrecked his career by thanking him too much. The guidance we have now is certainly better than what was presented to your Lordships’ House and discussed in Committee.

[Lord Bates]

My Lords, I am very grateful to all noble Lords who have spoken in this debate. It has generated a flurry of notes from the Box and I will try to cover most of the questions that were raised. However, as I try to respond to the points that were raised, it will be worth trying not to lose sight of the general agreement on the journey on which we have travelled, which the noble and learned Lord, Lord Hope, helpfully set out at the beginning, and which I think noble Lords on all sides of the House have broadly welcomed.

We began the journey because Prevent was already in place—the noble Baroness, Lady Smith of Basildon, made the point that it was introduced by the previous Government. We found, through the regional co-ordinators of Prevent, who had a good working relationship with many universities, that the quality of the way in which the Prevent programme was delivered in higher education institutions varied widely, and that often the level of compliance was best where perhaps it was needed least, and worst where it was needed most. For that reason, having given the matter very careful consideration, the decision was made to put it on a statutory footing to try to get some consistency in the way in which it was delivered. That is the context behind this.

I am conscious of the point made by the noble Lords, Lord Morgan and Lord Judd, in talking about how precious our higher education institutions are as a bulwark against extremism. That was one of the finest debates that we had on the Bill. Early on, the noble Lord, Lord Deben, talked about bringing areas of contention out into the open and said that having a debate about them was critically important. That was why, as part of that, we put in place in the Bill and reiterated in the guidance that institutions should have particular regard to academic freedom duties in the 1988 Act and freedom of speech issues in the 1986 Act. Without getting into specific issues that the noble Baroness raised about Imperial and my noble friend raised about Southampton, that is what needs to be taken back to those authorities, to remind them that that is what the guidance states, rather than what it does not—and sometimes how it is interpreted.

I was grateful to many noble Lords who welcomed the fact that we now have a glossary. Those who went through the detailed passage of the Bill will realise that Appendix F was designed for the Minister’s benefit rather than necessarily for those who are participating. I at least found it very helpful, even if, in certain areas, it does not quite go far enough. I shall come to some of those points.

The noble Lord, Lord Butler, with his experienced eye, spotted the nebula for quangos that could be there in the absence of HEFCE—but we should not take it that not specifying HEFCE is saying that it is not going to be that organisation. We consulted on that, and clearly there needs to be a discussion and an agreement that HEFCE will be prepared to take that on. But I can state—and I hope that this will reassure noble Lords—that it is certainly not the Government’s intention to establish a new body to carry this out.

On the point raised by my noble friend Lady Brinton about whether guidance will be withdrawn if further guidance is not agreed, that will be for the next Government—and we could be coming back to that a few times in the course of my remarks. But it is a serious point because it will, of course, have to be brought forward. It is not our intention that the duty should commence for the further and higher education sectors until guidance on managing speakers and events has been published and approved by Parliament. The noble Baroness, Lady Smith of Newnham, made the point that it would require another affirmative statutory instrument to come before your Lordships' House and that there would be a debate on that. Without that debate and that order, it would not be anticipated that we could give commencement to the wider provision, because there would be a very large hole in the guidance that would be implemented.

I will pick up on a few points. Noble Lords referred to recording meetings of organisations. I do not have anything official on that but, intuitively, that would seem to be exactly the type of thing that would be a good way in which to ensure that, when there are speakers of this nature who may give rise to contention, they are reviewed—and that could be part of the internal review. That is exactly the type of innovative idea that I would like higher education institutions to take advantage of.

The noble Lord, Lord Hannay, welcomed a large part of what is in the guidance, but he also asked for the definition of “non-violent extremism”. It means simply that extremism is not accompanied by violence or a threat of violence. The Prevent strategy is clear that it includes challenging non-violent ideas that are part of a terrorist ideology and that risk drawing people into terrorism. In that context, I would add that, although we are talking about acts of terrorism, we are also talking about radicalisation. The Prime Minister’s task force on tackling extremism and radicalisation felt that there should be a provision to capture that which is radical and extreme but does not directly incite acts of violence—although it could, of course, lead that way.

A number of noble Lords asked about training. That may sound rather grander than it is. I have flashbacks of exchanges with the noble Lord, Lord Phillips of Sudbury, on this subject. I do not want to tempt him to come into the Chamber and engage me on this issue again, but I remember him going through the effect of the impact assessment, quantifying how many co-ordinators it would require and extrapolating the cost of that across all institutions.

I come back to the point that we are talking about, which is what the noble and learned Lord, Lord Hope, mentioned in the Scottish context—a light-touch approach. Initially there would be a workshop to raise awareness of Prevent: there is a DVD-led training tool to teach front-line workers how to identify and support those at risk of radicalisation. The DVD course is half an hour or an hour long, and is designed simply to introduce people to the key themes that they ought to be aware of. When we talk about training we are not anticipating that great swathes of trainers, and those being trained, would be required in organisations.

The noble and learned Lord, Lord Hope, also asked about the differences between the Scottish guidance and the English and Welsh guidance. Universities in Scotland will be under the same Prevent duty in law as universities in England and Wales. There are some relatively minor differences in the drafting of the Scottish version of the guidance. On the whole, these reflect the particular circumstances in Scotland. The Scottish version of the guidance makes it clear in the introductory section that being drawn into terrorism includes not just violent extremism but non-violent extremism, which can create an atmosphere conducive to terrorism and popularise views that terrorists then go on to exploit.

The noble Baroness, Lady Lister, asked about the position of student unions. They are not subject to the Prevent duty, but whatever procedures apply to university premises will apply no matter what body is using them. This will be a matter for university governing bodies. Also on the subject of students, the noble Baroness welcomed the fact that in the guidance we had introduced a requirement to consult. That reflects the contents of the letter that I sent out on 9 February, and also the intervention, to which I pay tribute, of the noble Baroness, Lady Williams, who asked for an undertaking that students would be engaged in the process. I said at the time that that was very sensible and that we ought to include it in the guidance—and it is now in the guidance, in the section on partnerships.

--- Later in debate ---

[Baroness Smith of Basildon]

I am grateful to the noble Lord for his comments on nurseries, although I am not 100% sure that I fully understand what nursery staff could do in response to something that a three year-old says or does that would be beyond what they currently do in ensuring that three year-olds behave appropriately. However, I asked the noble Lord specifically about the training for nursery staff. He has spoken about training generally. Is the training for nursery staff the same as it would be for staff at schools or universities or will there be specific training for those who deal with much younger children?

[Lord Bates]

That is a good point. Procedures need to be set out to ensure that the nursery has guidance in place detailing how it will implement Prevent and what it would do if a three year-old said, “My sister is going off to Syria”, or something of that nature. What would it do if a child made such a comment? Does it have a procedure for dealing with that? To whom would it report that and what action would it take? That is probably not the best example as I have just thought of it and I am sure that the officials will probably send me 10 far better examples. However, I am just trying to appeal to the common-sense elements of this. If such an incident should happen, do nursery staff have a procedure in place to deal with it? I think that is all that would be required of nurseries. The noble Baroness raised a very fair point about Ofsted. I am afraid that I do not have the answer at this stage but it is a good point and I will ensure that I write to her on it. I have tried to address as many of the points as possible—

Water Cannon

Debate between Baroness Smith of Basildon and Lord Bates

Tuesday 17th March 2015 Lords Chamber

[Lord Bates]

The noble Lord is absolutely right that we should take our time, and that is what the Home Secretary is doing. That is why she commissioned the report and that is why she wrote to ask for further information. Of course, this came to the Home Secretary from the Chief Constables’ Council—from the operational side—last year and we are giving very serious consideration to it.

[Baroness Smith of Basildon (Lab)]

My Lords, we are not talking about a gentle spray from a garden hose here. Is the Minister aware that water has to be heated before it can be fired from a water cannon? Does he agree with the comments from ACPO that water cannon could be justified because of the need to police protests against the Government’s austerity programme, or does he agree with the late Bob Jones, the police and crime commissioner for the West Midlands, who said that water cannon would be,

“as much use as a chocolate teapot”?

[Lord Bates]

There is a well established procedure for considering these things, as happened with Tasers under the previous Government. A proposal comes forward—a request is made—and consideration is given to the scientific and medical implications of deploying the particular model. That is also placed in the context of a decision by the Home Secretary on the nature of policing and public consent.

Immigration: Regulations

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 11th March 2015 Lords Chamber

[Lord Bates]

A number of issues were raised in that very distressing report by Channel 4 which we are investigating. Stephen Shaw will also be investigating them as part of his independent review.

[Baroness Smith of Basildon (Lab)]

My Lords, I also raise the Channel 4 documentary, which, as the noble Lord said, shocked and distressed us all. On 8 March, my noble friend Lady Bakewell asked about female staffing levels in Yarl’s Wood. The Minister reminded your Lordships’ House that Serco was contractually committed to delivering a level of 66% by 2015—that is, now. Following that debate, the chief executive of Serco, Rupert Soames OBE, wrote to me to say that the number of female officers was being increased. His letter says that Serco is working to increase this to 60%—not 66%—and “aim to achieve it” by the end of 2015. Will the noble Lord confirm the correct figure? Is it a contractual and therefore legal obligation to increase the number of women officers and what happens to Serco if it fails?

[Lord Bates]

Serco was offered that contract. One of the principal concerns which many people have had, and which the Women for Refugee Women report also identified, was that there were insufficient female detention officers in that facility and that their numbers needed to be increased. One of the conditions put out before renewing the contract to the tender organisation was that it needed to increase the proportion of female officers. The figure I gave was 65% or 66%; the chief executive may now be saying 60%. I will certainly look into that; I will speak with him and of course will write to the noble Baroness and ensure that she gets the right information. However, the principle is that we need more female detention staff to look after female inmates.

Sexual Violence against Girls and Women

Debate between Baroness Smith of Basildon and Lord Bates

Thursday 5th March 2015 Lords Chamber

[Lord Bates]

My noble friend is absolutely right in that regard. Of course, that is the purpose of the website, “This is Abuse”, which is targeted at young people. It has been viewed by some 2 million young people. That is the purpose behind the new campaign, What is Consent?, which sets out what is involved: the capacity to consent, the freedom to consent and the steps taken to obtain consent, which must be present in all relations of a sexual nature. The noble Baroness is also absolutely right that more needs to be done.

[Baroness Smith of Basildon (Lab)]

My Lords, part of the problem is that young girls who are manipulated and sexually abused have been groomed to believe that they are in a consensual relationship. While there can be legal arguments about what consent is when a case gets to court, surely it is even more important to protect those young girls before any such abuse takes place. Let me press the Government again: given that the value of sex and relationship education is widely understood and known to be effective, why are the Government refusing to ensure that it is compulsory in all schools?

[Lord Bates]

I think that best practice is happening in most schools. It is certainly compulsory in all state schools. There was a case related to certain freedoms being given to academies, which covered this. However, the expectation is not that academies can somehow disregard this, but that they will use their freedom to improve on the minimum standards for the teaching of sex and relationship education that were set out by the Secretary of State in 2001.

Yarl’s Wood Immigration Removal Centre

Debate between Baroness Smith of Basildon and Lord Bates

Tuesday 3rd March 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I listened to the Government’s Answer with great care. We are told again that the most recent inspection found Yarl’s Wood to be,

“a safe and respectful centre which is continuing to improve”.

The Minister said, in repeating today’s response:

“As soon as we were made aware of the recent allegations, Home Office officials visited Yarl’s Wood to provide assurances that all detainees were being treated in a safe and dignified manner”.

How could they provide such assurances without an investigation? What was the evidence on which they based such assurances? Serious allegations of abuse are well documented, such as those from women who have had male staff enter their rooms when they are naked, in bed or even on the toilet. We have heard that a pregnant woman suffered a miscarriage without medical treatment and of guards referring to women as “animals”.

The Government’s response today refers to Serco’s response. What about the Government’s response? Yarl’s Wood is the Government’s responsibility. On 28 January, when I raised this issue in your Lordships’ House, the Minister said of the allegations about Yarl’s Wood that,

“if the information is supplied to us, it will be investigated very thoroughly indeed”.—[Official Report, 28/1/15; col. 197.]

Has such a thorough investigation—which must be independent and specific to the allegation at Yarl’s Wood—started? If not, why not?

[Lord Bates]

The noble Baroness is right to be concerned and shocked about this. I watched that documentary on Channel 4, and quite frankly I was sickened. I think most decent people will have been sickened by the attitudes that were on display there. That is the reason why we have had that immediate reaction to this, and why there is the Stephen Shaw review into the entire detention estate.

I have to say that this is a story which is not going to go away. There are a number of things coming. The first is the Stephen Shaw inquiry, which is coming down the path. The independent monitoring board will be publishing its latest report, and Her Majesty’s Inspectorate of Prisons will be visiting again for an independent review. We have had the very thought-provoking report from the all-party group published just today by Sarah Teather, and there is also the work being done for women refugees, which raises a great deal of concern. So we are very conscious that there is a lot of evidence building, and pressure is mounting on Serco. We are very much on their case and watching them like a hawk. I have to say to the noble Baroness that we are following a process here. Evidence has been produced; we will be acting; and we expect Serco to act in the interim.

Police: Complaints

Debate between Baroness Smith of Basildon and Lord Bates

Tuesday 3rd March 2015 Lords Chamber

[Lord Bates]

I could not agree with the noble Lord more.

[Baroness Smith of Basildon (Lab)]

My Lords, following on from those two questions, there is another point to be made. The Minister will know that we are concerned about the sharp rise in the number of complaints being made to the IPCC and he will also be aware of our view that a more effective police standards authority is needed to tackle the most serious cases involving corruption and force integrity. Have the Government undertaken any research to understand why the greatest number of complaints that have been made are about police neglect and failure of duty as well as about individual police officers being rude or intolerant? The points that have been made by my noble friends reinforce that. Since this Government took office, in my county of Essex alone, we have lost almost 600 police officers, with even more cuts planned of around 200 officers. When the Government planned such a dramatic cut in police numbers, was any assessment made of the impact that that would have on the quality of service that the police would be able to provide to the public?

[Lord Bates]

A couple of issues underline those questions. One is that some very high-profile, major systemic failures have been uncovered, not least the one raised by my noble friend Lord Scriven in his supplementary question. But we have two bits of evidence. One is that crime has fallen by 20% since 2010 while at the same time we have seen the level of complaints against the police go up. That is why we are having a review: to understand why that is and what more can be done while at the same time recognising the incredible job that our police forces do in keeping us safe.

Serious Crime Bill [HL]

Debate between Baroness Smith of Basildon and Lord Bates

Monday 2nd March 2015 Lords Chamber

[Lord Bates]

My Lords, I shall speak also to Commons Amendments 17 and 21.

We can all agree that domestic abuse is a serious and pervasive crime; a point well made by the noble Lord, Lord Wigley, on Report. It is shocking that in the past year more than 2 million people in England and Wales were abused by those closest to them, and even more shocking that 85 women were murdered by a current or former partner.

However, comparing those figures to the number of people who reach out for help and access the criminal justice system shows that, despite prosecution and conviction figures reaching their highest ever levels under this Government, domestic abuse is still vastly underreported. A stark comparison of crime survey and Crown Prosecution Service figures suggests that just one in 20 of those abused by their families and partners have access to justice.

The sad fact is that we are still grappling with a reality where many people think a crime has been committed in a relationship only if violence is involved. Even the courts have taken the view that stalking and harassment legislation does not apply in ongoing relationships where abuse is interspersed with periods of affection. That rules out those cases of domestic abuse where controlling and manipulative perpetrators play on the affection of their partners or family members to avoid detection.

The Government understand that coercive and controlling behaviour can be harder to recognise, but can be every bit as damaging to its victims as physical violence. To quote one victim of domestic abuse who responded to our consultation,

“my bruises faded, but the psychological scars didn’t”.

In recognition of the harm that coercive and controlling behaviour can do, the Government have expanded the non-statutory definition of domestic violence and abuse to send a clear message that abuse is more than just physical. Last summer, we ran a consultation to ask whether the law also needs to be strengthened to provide better protection to victims of domestic abuse. Eighty-five per cent of respondents told us that the law needs to be strengthened; 55% highlighted the need for a new offence to make sure that a person causing someone they are in a relationship with to live in constant fear faces justice for their actions.

Commons Amendment 7 provides for just such an offence. The new offence makes it clear that abusing someone in a relationship is every bit as serious as stalking or harassing a stranger. It applies to repeated or continuous behaviour in relationships which, when incidents are viewed in isolation, may appear unexceptional, but has a significant cumulative impact on the victim’s everyday life. It causes them to feel fear, alarm or distress.

When I first spoke on this issue in the House last year, I said that legislation on this issue must be approached judiciously. I stand by that. There is a balance to be struck. Every relationship has its own power dynamics and this is not about outlawing arguments or saying that couples cannot disagree. It must be clear that the new offence does not apply to volatile relationships which stop short of being abusive. To capture this balance, key elements of the new offence are the need to establish the repeated or continuous nature of the behaviour and the ability of a reasonable person, whether part of or external to the relationship, to appreciate that the behaviour will have a serious effect on its victim.

We have made sure that the new offence does not duplicate existing criminal law. Child abuse does not fall into the ambit of the new offence because it is covered by existing offences. Nor does the new offence apply to extended family members who have never lived with the victim, because stalking legislation would capture those circumstances.

We must also be on our guard against the application of the new offence in circumstances where control may be necessary to secure a loved one’s safety. For example, I am sure that none of us would want to see the spouse of a person struck by mental illness imprisoned for medicating them or protecting them from situations which may cause them harm. I am equally sure that we would not want to see the parents of an unruly teenager convicted for proportionately curbing the behaviour of their wayward child. That is why we have included a defence in the framework.

Of course, we also need to be sure that manipulative perpetrators cannot use the defence to escape justice. To address this, the defence will not be available where the victim has been caused to fear violence. To rely on the defence, a defendant will need to show that a reasonable person would agree that their behaviour was reasonable in all the circumstances. This is not an easy test to meet if you have perpetrated a campaign of control against another person.

The maximum sentence of five years’ imprisonment for the new offence recognises the damage that coercive or controlling behaviour can do to its victims and is commensurate with the maximum penalty for stalking. Of course, the new offence cannot be implemented without an effective police response, so the work that the Home Secretary is doing to drive improvements through her national oversight group on domestic abuse remains as high a priority as ever.

The new offence, together with the guidance for investigators provided for in Commons Amendment 8, will make it easier for the police to protect victims and bring those who abuse them to justice. This will send a clear message that domestic abuse in all its forms will not be tolerated in our society. Commons Amendments 17 and 21 are consequential on Amendments 7 and 8. I beg to move.

[Baroness Smith of Basildon]

My Lords, I welcome these amendments. As a long-term patron of Basildon Women’s Aid, for over 20 years, I am very much aware that coercive and intimidating behaviour is often a precursor to violent behaviour. I have spoken to women and found that it can start with, “Oh, I like to see you in that dress”. In one case, it went from what somebody wore and whether they wore make-up through to, if they even washed, they were seen as trying to attract other men, and that then led to violence. It can start very simply with what somebody wears or make-up and end in violent behaviour.

Not only does the amendment recognise that controlling or coercive behaviour in such relationships is dangerous, it could also be a preventive measure, because it could nip the problem in the bud before it gets to violent and more abusive behaviour. The amendment recognises how dangerous such controlling behaviour is. Even if it does not lead to violent behaviour, controlling behaviour is dangerous and corrosive to the individual. That is recognised in the courts already. Ongoing, day-in, day-out controlling behaviour has led to cases where the woman being victimised has turned on and been violent towards the perpetrator of such behaviour. The courts have now recognised that slow-burn behaviour. Intimidation has consequences, so the amendment is very welcome.

The Minister talked about the effective police response. Passing a law does not, on its own, make something happen, and he recognised that. In my area, the number of police officers and the pressure that they are under has an impact on the police’s ability to investigate and act on such issues. Too often, domestic violence can, as the noble Lord and the Home Secretary have recognised, come further down the list of priorities. I hope that, when the Government examine how successful this is, they also look at the resources that are available for the police to take the action that is needed.

Counterterrorism Policy: Syria and Iraq

Debate between Baroness Smith of Basildon and Lord Bates

Monday 2nd March 2015 Lords Chamber

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

My Lords, with the leave of the House, I will repeat a Statement made by my right honourable friend the Home Secretary in answer to an Urgent Question in the other place.

“Mr Speaker, as the Government have made clear repeatedly, the threat we face from terrorism is grave and it is growing. The House will appreciate that I cannot comment on operational matters and individual cases, but the threat level in the United Kingdom, which is set by the independent Joint Terrorism Analysis Centre, is at severe. This means that a terrorist attack is highly likely and could occur without warning.

The Government have consistently and emphatically advised against all travel to Syria and parts of Iraq. Anyone who travels to those areas is putting themselves in considerable danger, and the impact that such a decision can have on families and communities can be devastating.

The serious nature of the threat we face is exactly why the Government have been determined to act. We have protected the counterterrorism policing budget, up to and including 2015-16, and increased the budget for the security and intelligence agencies. In addition, we have provided an additional £130 million to strengthen counterterrorism capabilities and help to address the specific threat from ISIL.

We have taken significant steps to ensure that the police and security services have the powers and capabilities that they need. Last year, we acted swiftly to protect vital capabilities which allow the police and security services to investigate serious crime and terrorism, and to clarify the law in respect of interception for communications service providers.

This year, we have introduced the Counter-Terrorism and Security Act. This has provided the police with a power to seize a passport at the border temporarily, during which time they will be able to investigate the individual concerned—and I can confirm that this power has been used. The Act has created a temporary exclusion order that allows for the managed return to the UK of a British citizen suspected of involvement in terrorist activity abroad. It has strengthened the existing TPIM regime so that, among other measures, subjects can be made to relocate to another part of the country, and it has enhanced our border security for aviation, maritime and rail travel, with provisions relating to passenger data, no-fly lists, and security and screening measures.

Since its national rollout in April 2012, over 2,000 people have been referred to Channel, the Government’s programme for people vulnerable to being drawn into terrorism, many of whom might have gone on to be radicalised or to fight in Syria. The Counter-Terrorism and Security Act has now placed Channel on a statutory basis, and it has also placed our Prevent work on a statutory basis, which will mean that schools, colleges, universities, prisons, local government and the police will have the duty to have due regard to the need to prevent people from being drawn into terrorism. Already, since 2012, local Prevent projects have reached over 55,000 people and helped young people and community groups understand and challenge extremist narratives, including those of ISIL.

In addition to this work, and alongside the checks that we have already conducted on a significant number of passengers leaving the UK, we have committed to reintroducing exit checks, and arrangements to do so will be in place by April 2015. These will extend our ability to identify persons of interest from a security, criminal, immigration or customs perspective. As the Prime Minister stated last week, the Transport Secretary and I will be working with airlines to put proportionate arrangements in place to ensure that children who are at risk are properly identified and questioned.

The Government are taking robust action. But we have been clear that tackling the extremist threat we face is not just the job of the Government, the police and the security services. It needs everyone to play their part. It requires educational institutions, social media companies, communities, religious leaders and families to help protect vulnerable people from being drawn into radicalisation and to confront this poisonous ideology. If we are to defeat this appalling threat and ideology, we must all work together”.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for repeating the answer to the shadow Home Secretary.

In our debates on the counterterrorism Bill, we referred on several occasions to the 600 or so British citizens who have travelled to Syria to join the conflict. Each of those 600 has somehow come into contact with extremists and been radicalised. When this Government came to power, they revoked the relocation orders that removed individuals from terrorist networks to disrupt those networks. They took that action against professional advice. Do the Government now accept that the removal of relocation orders made it harder to disrupt terrorist networks, particularly those in parts of London?

Given that the Government advice is not to travel to Syria, we all find it absolutely incredible that three 15 year-old schoolgirls were able to make that journey, taking over 30 hours, without any intervention. When were the authorities in Turkey notified? Was it really three days later and, if so, why did it take so long? What communications were there with the British embassy in Turkey and what action was taken by the embassy to try to locate the young girls? Did anyone think of just checking the bus station? What measures are now being put in place to prevent this happening again?

[Lord Bates]

My Lords, the noble Baroness asked about the control orders. She will be aware that they related to a different time. The threat which has come from people travelling to Syria has gathered pace over the past couple of years. The threat level has increased. There was also concern, which we discussed at length during the passage of the counterterrorism Bill, about the orders being whittled away by the courts. We felt that we needed to introduce a new measure, the TPIM, which is more effective and has a higher threshold. That has been more effective in the location element. On the noble Baroness’s point about the removal of the orders being against professional advice, the Home Secretary discussed the proposal with the authorities before the decision was taken. They accepted it at that point, just as they are now recommending that the measure is reintroduced given the renewed threat that we have faced.

I know that the issue of how on earth this could happen with the three young girls has caused immense distress to everyone. It is the subject of an ongoing investigation. The account of the series of events that is coming from the authorities in Istanbul is vigorously challenged by the Metropolitan Police. It informed the Turkish embassy on the very day that it was alerted to the children having gone missing. However, rather than my going further on that, I would be grateful if the noble Baroness could bear with me in allowing the investigation currently under way to take its course.

Counter-Terrorism and Security Bill

Debate between Baroness Smith of Basildon and Lord Bates

Monday 9th February 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister’s characteristically generous comments when he introduced these amendments illustrate his attitude to the whole Bill. I hope that the well-deserved praise that he has received so far does not damage his promotion prospects in the future, given where it is coming from. He said that the debate had lasted thirty-eight and a half hours. There were times when it flew by and there were times it did not, but it is a testament to your Lordships’ House—and I think noble Lords across the House, other than the noble Lord, Lord Phillips, have recognised this—that we have a substantially improved Bill from the one that we received, and with no votes, which is an interesting comment on the way we have proceeded in our discussions and debates both inside the Chamber and, as the noble Baroness, Lady Lister, referred to, outside the Chamber as well.

I thank the Minister for the number of occasions on which he has been willing to engage. We have all engaged with Ministers across parties in the past where we have engaged but have felt that they perhaps have not engaged in the same way. He has not been guilty of that on any occasion. He did engage properly. Even last Wednesday, I caught him at around midnight as he was leaving the Chamber, and he was willing to discuss the issue of academic freedom further. I think that says a lot about how we got to this substantially improved Bill.

My only question is to ask whether the Minister can place on the record the points that he made in his extremely helpful letter in that regard, as outlined by the noble Baroness, Lady Lister. I think that would be very important. I thank him and his Bill team, who have been available at all times for discussions and debate. I think that is what has led to the improvements.

Can I make one plea? I have also received emails and letters about this. There is some misunderstanding of the purpose of the Bill and how these measures will work. That is going to be very important. Legislation is one thing, but hearts and minds and understanding to make it work in practice in the way that it is supposed to—doing no less and no more than is intended—will be extremely important.

As well as the clarity that the Minister has given to the Bill as a whole, particularly on freedom of speech and academic freedom in Parts 1 and 2 of the Bill, the issues will now receive judicial review. That is extremely important. We pushed it to a vote in the Commons. We did not succeed, but we have succeeded in agreement across your Lordships’ House on that point during our debates.

On the issues of guidance, the fact that we have now increased parliamentary scrutiny by affirmative order is extremely important. I also recognise that during Committee, as the noble Baroness, Lady Buscombe, said, several changes were made to that guidance. She recognised that it would have to be changed before it was presented to your Lordships’ House through an SI.

We support these amendments. We are grateful to the Minister for putting them forward. We also welcome the spirit in which this Bill has been debated and discussed and the changes that have been made. It is a significant testament to your Lordships’ House that, as I said at the beginning, we have a much improved Bill in comparison to the one we received, and with no votes, by negotiation and discussion.

[Lord Bates]

My Lords, I am very grateful for the comments that have been made from around the House. There is no need for the noble Baroness to worry about damaging my career prospects. As I am reliably informed, I do not have many, having already exceeded my mother’s expectations for my career some years ago.

The noble Baroness made a very important point about the fact that we have considered 237 amendments and there has been no Division, but that is not to say that there has been no difference, change or argument, or really passionate debate. I think of some of the debates that we have had, particularly on academic freedom and communications data, to which my noble friend Lady Buscombe referred. We have had passionate debate all the way through, and as a result of that 40 amendments have been made to the Bill, which will now go on its journey to another place.

Counter-Terrorism and Security Bill

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 4th February 2015 Lords Chamber

[Baroness Smith of Basildon]

It is quite a leap to say that a challenge to the Government automatically becomes something extreme. We are challenging the Government here today in terms of the debate we are having but, from what the Minister has been saying during this debate, that challenge to the Government is not being seen as extremism at any point. However, my noble friend Lady Lister made the point about the perception among academics of their freedom being curtailed. My noble friend was very clear in her comments about what she was seeking: to be absolutely clear in the Bill, or if need be in guidance, about that academic freedom and about the need, as quoted in the Education Reform Act 1988,

“to ensure that academic staff have freedom within the law”—

as was said earlier, all freedom of speech is qualified within the law—

“to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.

I do not think, from what the Minister is saying, that he wants in any way to curtail that. This seems to be largely a technical point and one that, I hope, can be easily resolved. I hope he will address it in comments that he makes today. Perhaps he will be able to take it away and reflect on it or, indeed, ensure that it will be in guidance. However, some reflection on this point, which seems to me to be entirely compatible with his Amendment 15D, would be very helpful.

[Lord Bates]

My Lords, I will just deal with a few points from this debate. This group of amendments deals with Clauses 28 and 29. I will refer first to Clause 28, particularly the now amended subsection (4A). The point was raised by the noble Lord, Lord Phillips of Sudbury, who asked whether it would be possible for the affirmative resolution, which is coming forward on the guidance, to cover more than just the date when it will be brought in, which was one reading of the amendment. I confirm, of course, that it will cover both the date and the content of the guidance. We recognise that that is a very important part. It is not clever wording trying to curtail debate. We recognise that that is the intent and I wanted to take the opportunity before we leave Clause 28 to put that on the record.

The noble Baroness, Lady Lister, in moving her amendment, asked that the Secretary of State,

“have due regard to the principle of academic freedom”,

when issuing guidance or giving direction. We have already amended the Bill to ensure that particular regard is paid by the Secretary of State to the duty to secure freedom of speech in higher and further education, as set out in Section 43 of the Education (No. 2) Act 1986. The interplay between the duty in that Act and the principle of academic freedom set out in Section 202(2) of the Education Reform Act 1988 is an interesting one.

The Education Reform Act defines academic freedom as, in particular, the ability for academic staff to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or the privileges they may have at their institutions. I well acknowledge the remarks made by the noble Baroness, Lady O’Loan, who told us very powerfully in earlier stages of the Bill about the rigours of actually teaching constitutional government—I think it was—in Northern Ireland during the time of the Troubles. We accept that what is described here is effectively a subset of freedom of speech which higher and further education institutions have a duty to secure through Section 43 of the 1986 Act.

Furthermore, I note that the 1986 Act extends the duty to secure freedom of speech not only to academic staff but also to employees, students—to whom the noble Baroness, Lady Williams, referred—and visitors. It covers both higher and further education institutions, whereas the matters referred to in Section 202 of the 1988 Act are only pertinent to the academic staff of universities.

Without going any further at this stage, I would like to reflect on what the noble Baroness said, without saying anything binding. I certainly understand where she is coming from, if it is a matter of interpretation. We just need to check that with lawyers. If she is willing not to press that amendment, I will certainly give an undertaking to look at it again and perhaps come back with some comments at Third Reading.

I turn now to Amendment 15B in the name of my noble friend Lady Sharp, which would require the Secretary of State, prior to making a direction, to inform the authority of that intention and to give the authority the opportunity to make representations before the direction is made. Any decision made by the Secretary of State must be reasonable and proportionate. In most circumstances, this would require only the steps outlined; so in that sense, we believe that this amendment is not necessary. I can also assure the House once again that it is the Secretary of State’s intention, as a matter of policy, to use this power only as a last resort, when other means of securing compliance through discussions with the authorities—who will be at liberty to make representations at that stage—have been exhausted. I should also reiterate that both the Prevent oversight board, on which our noble friend Lord Carlile sits, and the courts—to answer the point made by the noble Lord, Lord Thomas of Gresford—will play a role in the process of giving and enforcing such a direction.

To clarify, we do not want, as it were, to run to the bottom line on this point of the direction. It is a necessary consequence of making statutory the requirement to have due regard that there must be some legal doorstop. If people refuse to abide by the law then, just as with any other law, ultimately it trickles down to the court and might end up in contempt of court. We recognise that we are treading on very sensitive ground here. I am sure that all Secretaries of State will weigh that very carefully. Also, they must have particular regard when issuing that direction to the freedoms outlined in the 1986 Act.

With that reassurance to my noble friend and the promise to reflect on the amendment moved by the noble Baroness, Lady Lister, I ask noble Lords to consider not pressing their amendments at this stage.

--- Later in debate ---

[Baroness Smith of Basildon]

I have a very brief comment. I listened with great interest to the noble Lord’s comments. I think he was right to ask those questions, and I am sure he shares my concern that the coalition Government cut substantial funding from Prevent, so fewer local authorities have benefited in the past couple of years. There are questions to be asked of the Minister because Prevent is very important. We recognise that by making it statutory, but I regret the cuts the coalition Government have made to the Prevent programme.

[Lord Bates]

My Lords, in considering these amendments, I defer to the extensive and detailed local government expertise of my noble friends Lady Hamwee and Lord Scriven. Before I respond to the specifics of the amendment, I repeat that in relation to the Channel guidance, we are consulting local authorities and specifically Channel panel chairs. We would be very happy to consult London Councils—Sutton was mentioned in particular—to take account of their views and concerns and to address them in any guidance that is issued. If other local authorities feel the same, that would be welcomed.

Amendment 15K concerns the costs of implementing the duties in Chapters 1 and 2 of Part 5. The amendment would require the Secretary of State to report to Parliament on the costs incurred by specified authorities and on the grant made to meet those costs. My right honourable friend the Prime Minister has already announced £130 million of extra resource over this year and next to meet the increased terrorist threat from Syria and Iraq. Some of this funding has been earmarked for the implementation of the duty in the chapter. I am not trying to suggest that it is all going there. The vast majority, I think, is heading towards the security services for technology capability.

Channel panels already exist in all areas of England and Wales. Under existing arrangements, which should not change in practice as a result of this legislation, the Home Office provides funding for Channel police practitioners who co-ordinate activity in organising cases and supporting panels. Each of the nine police regions receives funding to support the Channel programme. For national security reasons, we do not publicly provide a breakdown of police counterterrorism spend by individual projects, capabilities, work streams or police force areas. Disclosure could identify areas where the threat to the national security of the UK is greatest and where there are vulnerabilities in different regions and capabilities. I hope that that helps in some way to explain the reasons behind this.

The Home Office also funds theological and ideological interventions—so that which is not provided by the local authorities is provided by the Home Office. We therefore do not consider that local authorities should incur extra costs as a result of the implementation of this chapter. Any statutory services provided would be met through existing funding.

Counter-Terrorism and Security Bill

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 4th February 2015 Lords Chamber

[Baroness Smith of Basildon]

That clarification is helpful and I am grateful for that. I did not know that the noble Baroness was able to intervene on Report and was unsure whether to accept the intervention, but it was a very helpful clarification.

As the noble Baroness, Lady Hamwee, said, I first raised this issue about the impact on communities when talking about the Privacy and Civil Liberties Board. On this issue the Minister and other noble Lords have in numerous contributions made it clear that the views of communities and the impact on them must be taken into account. Looking again at the guidance we are debating—I sent out for copies—it goes some way to doing that but, given the comments that have been made, it may be that the guidance could be a little clearer and more explicit on this issue. I am sure that when exercising this duty under Prevent we will all be seeking the same objective, which is to prevent people turning to or being drawn into extremism that could lead to violent behaviour. The sentiments are exactly right and what every Member of your Lordships’ House has said since the beginning of the debate, but if the noble Lord could clarify that and put it on record, and perhaps consider how the guidance could be made more explicit in that regard, that would be helpful.

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

My Lords, this has been a good curtain-raiser debate because we will come back to this issue in five successive groups, looking at different aspects of the Prevent strategy. I was lulled into a slightly false sense of security by my noble friend Lady Hamwee when she said that the more she read, the more she felt that the clause made sense and her amendment was perhaps not necessary. She then elaborated on it in a way that provoked a very helpful debate.

I should say two things in the context of the remarks of the noble Lord, Lord Judd, and my noble friend Lady Buscombe. When we talk about communities here, it is helpful to start from the position that everyone is equal before the law. Everyone is of equal value and they have the same vote and the same rights. Everyone is equal in our society. That is part of what a democratic society is about and what we are seeking to protect and uphold through this strategy. In a sense, to overfocus on particular groups is sometimes not helpful. All these measures are about prevention of terrorism and extremism. As the noble Baroness, Lady Smith, mentioned, there is far-right extremism, such as the murder of Mohammed Saleem, an 82 year-old, and bombs being placed nearby. Some 25% of the people on the Channel programme at present are from extreme right organisations. We have faced a lot of violent threats such as violence in Northern Ireland. We fear violence from animal rights groups and far-right groups. There are a range of people who would seek to attack that central principle that all people are equal, and are of equal value and worth in our society. That is what is really under attack.

We must never be drawn into a situation where, for fear of offence, we are not able to speak that truth. I do not want to link too far back, but I am afraid my mind is still full of the horrors of what we were talking about before—

Independent Panel Inquiry into Child Sexual Abuse

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 4th February 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, we welcome the Home Secretary’s Statement, and I am grateful to the noble Lord for repeating it for us today. There can be few things worse for a child than to be sexually and violently abused by adults, but one of those things has to be not to be believed that it ever happened. However, the most shocking thing has to be for someone, somehow, to muster the courage to speak out, and when they are believed, to be ignored because of that belief, and for the crime to be covered up to protect the guilty. That this abuse and lack of justice has involved well known and establishment figures and institutions compounds the pain, horror and disgust.

In her Statement the Home Secretary said that,

“what we have seen so far … is only the tip of the iceberg”.

She added that it was,

“on a scale that we still cannot fully comprehend”.

She is absolutely right. What is emerging is a catalogue of serious, systematic abuse over decades and across the country by those who believed they were above the law. But however distressing, however uncomfortable and however shocking, we have to comprehend it, because only then will we be able to get to the truth, and justice, for the survivors of that abuse, and also for those who have not survived.

However, we need to do far more than just understand the truth. It was quite moving to hear the part of the Home Secretary’s Statement where she reported that the common goal, and one of the factors that motivates and drives survivors to relive the horror of their experiences, is, as she put it, to protect and save others. The challenge for the inquiry is not only to meet the expectations of the needed investigation but to make recommendations for the future.

We called for a full statutory inquiry more than two years ago. The Home Secretary announced an inquiry more than six months ago. The false starts, the confusion and the problems have been hugely damaging. There have been issues around personnel and about the remit and the purpose, and survivors have not felt fully engaged in the process. We want this inquiry to be as effective as possible and to have the confidence of survivors and the public. So we welcome that it will now be a statutory inquiry, and we welcome, as hinted in the Statement, the extension of the remit to cover pre-1970 offences. If the Minister could clarify that further, it would be helpful.

We welcome the discussions that the Home Secretary has now had with survivors prior to appointing Justice Lowell Goddard to chair the panel. We certainly welcome the agreement that the Home Affairs Select Committee should hold a pre-appointment hearing. I have just a few questions for the Minister. Clearly, the confidence of abuse survivors is absolutely essential. Will there be any consultation and engagement with survivors regarding the appointment of the new panel and the ongoing shape and work of the inquiry?

Noble Lords are well aware of the very serious and quite devastating allegations of cover-ups and conspiracies in Whitehall and Westminster regarding the most serious crimes of sexual and violent abuse. Even today, the Home Secretary has had to update Parliament and the Minister for the Cabinet Office on the continuing chaos of missing files, and possibly duplicated files, after a Cabinet Office file was accidentally found by the press in the National Archives. Can the Minister confirm that the files of all government agencies and departments, including Downing Street and the security services, will be searched, and that Justice Goddard will have all the access that she requests?

The Home Secretary was direct and robust when she was asked about a cover-up. What will be the investigative capacity of Justice Goddard’s inquiry? Will she be able to select her own advisers and counsel? I note from the Statement that Ben Emmerson has been reappointed. Was that done with the approval of the new chairman? We all want to see those who are responsible brought to justice wherever possible, but noble Lords will be aware, as it has been raised before, of those who are responsible for online sex abuse not being interviewed by the police quickly enough. I have raised this issue with the Minister before in Questions and debates. If in the past we have had the problem that the police have not acted quickly enough against those who are now abusing children or looking at online images, can he be confident that they have the resources they need fully to investigate and prosecute past crimes while still policing the present and protecting children from abuse today? Can he explain something about the relationship and co-operation with Simon Bailey’s work and that of the National Crime Agency and CEOP?

Finally, the Minister will be aware of the issues that can arise when an inquiry which, of necessity, is thorough and meticulous, takes a long time, even years, to complete its work. What monitoring and progress-reporting arrangements will be in place? Can he confirm that if evidence comes to light before the conclusion of the inquiry that could lead to a prosecution, that evidence will be acted on without delay?

We welcome the Statement, and I hope the noble Lord can clarify some of the points I have raised today.

[Lord Bates]

I am grateful to the noble Baroness for her characteristic bipartisan approach on this. I know from my right honourable friend the Home Secretary that one of the most important things for survivors, particularly as we approach the end of this Parliament, is confidence that we are acting in a cross-party way so that there will not be disruption thereafter. That will be welcomed by them.

I shall deal with a number of the points that the noble Baroness raised. In relation to the missing files, as I have said, my right honourable friend has been very clear that we do not know whether there was a cover-up. That is one of the things that we need to get clear. We need to focus on it and get to the bottom of it. The Home Secretary and the Cabinet Secretary have written round, and we expect early and full compliance with that inquiry, as should have been the case with the earlier Wanless and Whittam review.

The noble Baroness asked about Ben Emmerson QC as the counsel. That was discussed with Justice Goddard and she is content with that approach. The noble Baroness also asked about the important issue of timing. We have been hearing evidence lately about the Chilcot review dragging on. That is not something that we want to do. The Home Secretary has said that she is considering—but will first discuss with the chairman of the panel, of course—whether there might be a target date. However, we would certainly expect to get regular updates and for survivors to be kept updated about the progress being made. Any evidence that comes to light must be passed immediately. That is the crucial role which Chief Constable Simon Bailey will play. He will be the link, the conduit, and the link with the Director of Public Prosecution’s office, so that we ensure that any prosecutions and information are dealt with immediately.

I think those were the principal points that the noble Baroness raised. If there are other points, I will come back to them later. I am grateful for her support.

Counter-Terrorism and Security Bill

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 28th January 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I will speak briefly to these amendments, because the main debate on guidance will take place under the fourth group, where we have nine amendments relating to guidance and direction on Prevent. I noted the comment of the noble Baroness, Lady Sharp, that she did not intend it to be a perfect amendment. What she highlights—and what has come out of this debate—is the lack of clarity. I think that will come out through a number of debates today on the groups looking at the specified duties that the Government have placed on Prevent. There is a lack of clarity in how it works in practice and what the full implications are; that is where some of the confusion will lie. I think the Minister will respond to some comments now, but I think similar issues will be raised when we have the debate on guidance in the fourth group. I know it is difficult to arrange groupings, but I was sorry in many ways that the noble Baroness, Lady Hamwee, degrouped her amendment from that main one. I can understand that, because of the specifics of what is in effect a sunrise clause, although we have not perhaps discussed the reason for that in quite the same way.

I will make a brief comment on Prevent rather than speak in detail, because I want to speak about it in the later group, as I said. Criticisms have been raised of Prevent, but we need to be positive, see what works and ensure that we can make it better in the future. As the noble Baroness, Lady Uddin, said, in the point that I did agree with her on, it was a Labour Government who set up Prevent and we are committed to it. However, we are committed to making it successful and effective; there is no point in something that causes alienation in communities when the whole purpose of it is to have engagement with communities and cohesion across communities. I look forward to what the Minister has to say on these specific amendments. I am sure that our debate today, on a range of issues, will tease out a lot of the detail that is missing from the legislation and the Government’s explanations so far.

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

My Lords, I begin by apologising to my noble friend Lady Sharp for not being in my place for the first minute or two of her remarks. I am grateful also to my noble friend Lord Ashton for briefing me on the remarks that she made, which I will try to address. I will put some general comments on the record in relation to these amendments. As the noble Baroness, Lady Smith, has mentioned, I dare say we will return to this in subsequent groups, but there are some particular issues here which I take it are about trying to get definitions and workings on the record. I will then deal with some of the specific issues which have been raised.

I will outline the broad objectives of the Government’s Prevent programme. Prevent aims to stop people becoming terrorists or supporting terrorism, and deals with all kinds of terrorism. It targets not just violent extremism but non-violent extremism, which can create an atmosphere conducive to terrorism and popularise views which terrorists exploit. Prevent activity in local areas relies on the co-operation of many organisations to be effective, but currently co-operation is not consistent across the country. We have seen people being radicalised sufficiently to want to travel to Syria and Iraq from many places which did not realise that radicalisation was an issue for them. New threats can also emerge quickly, and the steps which authorities take to comply with this duty will enable them to be spotted, and acted on, quickly. The new duty created by Chapter 1 of Part 5 will improve the standard of work on the Prevent programme across the country. This is particularly important where terrorism is a concern, but all areas need to understand the local threat and take action to address it. We will issue guidance setting out the type of activity that specified authorities should consider in fulfilling this duty.

I turn now to the individual amendments. Amendment 103A is a probing amendment that seeks to focus the scope of the duty on preventing people from being drawn into “activities which may lead” to terrorism, rather than simply “into terrorism”. The process of radicalisation is complex, as a number of noble Lords have mentioned; it is not simply a case of taking part in certain activities. There will be background factors, such as an individual’s failure to integrate, disrupted childhoods or growing up in an extreme subculture. There could be influences which push an individual towards a terrorist group such as family, friends, extremist ideological material et cetera. Individuals need to be receptive to the terrorists’ messages: for example, they may be disillusioned with previous beliefs or be naive and lack ideological knowledge to counter the terrorist ideology that they are being exposed to.

The effect of the amendment would be to apply the duty only to activities which may lead people into terrorism. The duty, as currently drafted, includes these activities in its scope, but this amendment would limit it to cover only these activities. These activities would need to be defined, but this will be difficult, if not impossible, to do, because the activities themselves may not draw people into terrorism—as I have said, it is a combination of factors which draw people into terrorism. The Government are determined to make the implications of the Prevent duty as clear as possible for those affected. This includes being clear about what is expected of specific authorities under the duty, so comprehensive guidance, on which we are currently consulting, will set out how we expect authorities to comply with the duty. Amendment 103B would prevent the duty applying to specified authorities until a report on the operation of the duty had been laid before Parliament.

--- Later in debate ---

[Lord Bates]

My Lords, I am grateful to the noble Baroness for moving her amendment and to other noble Lords who have spoken in this debate. It may be helpful if I put on record a couple of points relating to the consultation on the guidance first.

The Bill was considered at Second Reading in the House of Commons on 2 December. It had three days in Committee—9, 15 and 16 December 2014—and then two days on Report, on 6 and 7 January. Third Reading also took place on 7 January. The draft guidance that we are considering today was deliberately published in mid-December so that it would be caught in part of that consultation process. It was certainly there, although as reflected in the Official Report in the other place, it was not given the same level of scrutiny that it has had in your Lordships’ House. That may have been to do with its availability, because people had not studied it in great detail or perhaps because other organisations and higher education institutions had not quite flagged up their concerns at that point, but that has been addressed now. Moreover, of course, subject to your Lordships granting the Bill a Third Reading, the amendments that there will be in this area will be considered in another place. I agree about the importance of parliamentary scrutiny, and this Bill has benefited immensely from it.

Before I go into the prepared remarks on the amendments themselves, I will just try to deal with a couple of issues. The noble Baroness, Lady Lister, asked whether the duty applies to the National Union of Students. The duty does not apply to student unions and societies, but institutions should have regard to the duty in the context of their relationships and interactions with student unions and societies. This requires clear policies about what activities are allowed to take place on campus. Policies should set out what institutions expect of student societies in relation to Prevent. We expect student unions and societies to work closely with their institution and to co-operate with the institution’s policies.

My noble friend Lady Berridge asked why the directions are private. The power to give directions will be subject to multiple layers of protection, including judicial oversight and that of the Prevent oversight board, on which my noble friend Lord Carlile provides independent representation. A direction would only be issued as a last resort and only after all other means of ensuring compliance with the duty had been exhausted. A decision to make a direction can be judicially reviewed, and if it is contested, it would come before a court to be enforced. All of these judicial processes are of course matters of public record. I also emphasise that the direction would only be likely to be made in order to ensure that the right policies and procedures are put in place according to the guidance in the institution. This is not designed to impose decisions in respect of individual cases and decisions that have been taken in those institutions. We do not feel the need for a level of transparency that requires all directions—of which there will be very few—to be made public in the way suggested.

As for definitions of extremism, we touched on this earlier, but, for the record, the definition that we are working with is,

“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”.

Calls for the death of British Armed Forces are also included.

The noble Baroness, Lady Smith, referred to the situation in nurseries and asked why they were covered. In the comprehensive list of the institutions covered, nurseries are included because they are public areas and the Government can inspect what happens in them as they are covered by certain government standards. There have, for example, been cases where individuals decided to travel to Syria and had actually taken children with them. That might be something. For example, a child might have mentioned that that was going to happen. That could be relevant to safeguarding the child. In all these things, I am conscious of something that the noble Lord, Lord Ramsbotham, was always fond of saying, which is that a failure of common sense is a failure of the rules, and we are expecting, in these circumstances, that common sense will prevail.

[Baroness Smith of Basildon]

I think that the noble Lord is making a good fist of it but it is not very convincing. He thinks there might have been a case or there could be a case where a child might let slip in a packed nursery that someone is going to Syria and that he or she could be taken with them. What we have here is a duty being placed on the staff of that nursery. Unless it is clear-cut what that duty is going to be and how it is to be undertaken by the staff, I struggle to find a good explanation for why it is in there. I hope that the paper arriving for him is enlightenment, and I will give him an opportunity to read it, but so far his explanation is not really very convincing. It is quite an onerous duty to be placed on staff, involving training, costs and so on. If he is able to offer any further enlightenment on why and how, I would be very grateful.

--- Later in debate ---

[Lord Bates]

That may be two different elements. It is certainly our intention to return to this issue, perhaps with a little bit more detail at that stage on how this is going to operate, whereas the full responses of the consultation will, of course, take a little longer to put in place and therefore the regulations that accompany them will also necessarily be a little bit later. It is right that in setting the board up we make clear how it will operate alongside the independent reviewer. The Government are giving careful consideration to this important point, and I hope we can return to this matter on Report, in order to deal with the substance of the concerns previously expressed by David Anderson and your Lordships on this specific issue.

David Anderson has been kept informed of the development of these proposals, and we take seriously his views on these matters. He will have a key role in determining what work the board will undertake and precisely how it will support his role. It is right that the board’s statutory remit be drawn in line with that of the role it is designed to support. Indeed, I want to assure your Lordships that, in making changes to this important area, the Government will not do anything to diminish the existing arrangements. We will, of course, continue to work closely with David Anderson in refining the details of how the board will operate. However, in my view, we should not unduly prescribe in this Bill the tasks that the board will carry out, so as to ensure that it is flexible and that it will be helpful to and genuinely enhance the capacity of the independent reviewer’s role.

I hope also that I can reassure my noble friend that Amendment 118K is not necessary. An important feature of Clause 36 is that it provides that the board will be chaired by the independent reviewer, ensuring that the reviewer role will continue to provide the vital scrutiny that it has done over the past 35 years. This will also ensure that the work of the board complements rather than duplicates—much less rivals—the very important work of the independent reviewer. I understand that David Anderson has welcomed this aspect of the clause.

I hope that I can deal swiftly with Amendment 118H, which proposes to change the board’s name. The name of the body must reflect its purpose—I appreciate the suggestion of a Ronseal test, if you like, so that it does what it says on the tin—and the Government would assert that this is very much the case here. We have been clear that the consideration of privacy and civil liberties interests in our counterterrorism legislation and policies will be a key object of the board. The board will seek to offer further assurance to the public that careful, independent scrutiny is being given to the UK’s counterterrorism powers to ensure that we are getting the balance right and that our legislation and policies have due regard for civil liberty and privacy concerns in the face of the threat to the UK. It is right therefore that the name of the board reflects this.

Finally, I turn to Amendments 118L and 118M, which stand in the name of my noble friend Lord Thomas of Gresford. The Bill very properly provides that the regulations to establish the Privacy and Civil Liberties Board should be subject to the affirmative resolution procedure. That is right and proper given the significance of the issues. However, if minor changes to those regulations were to be required in future—perhaps in the light of experience based on the initial operation of the board—it would seem unnecessary, and not a good use of Parliament’s time, for all such revisions to be subject to the full affirmative resolution procedure.

As your Lordships will be aware, the Delegated Powers and Regulatory Reform Committee considered this Bill, and published a report on 15 January. The committee, having considered all the issues carefully, did not make any recommendation for change in respect of Clause 36, and I suggest that this Committee should accept that position. In the light of that explanation, and with the assurances that we will return to this on Report, I invite the noble Baroness to consider withdrawing her amendment at this stage.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister. He says it gives us comfort that we will return to this on Report, but unless we know what we will return to on Report, there is not much comfort there. I will not detain the Committee at this late time, but he did not answer my question about why the recommendations of the independent reviewer were not considered when the Government were looking at what to do to support the reviewer. He also did not answer my question about the Government’s selective quotes from the independent reviewer in the consultation document or my question about the independent reviewer’s appointment to the board. Most importantly, I was hoping to hear from him, but did not, a justification for the role of the board. It still seems to me that an announcement was made about a title and a body without clarity of what that body was going to do. I have to say that I still find it difficult to believe that a Privacy and Civil Liberties Board will be there to support the Independent Reviewer of Terrorism Legislation—it seems a bit incongruous. However, I look forward—I hope—to seeing what is tabled on Report by the Minister and, at this stage, beg leave to withdraw my amendment.

Asylum Seekers: Women

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 28th January 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, the noble Lord has tried to be positive in his response but these allegations are extremely serious. As the noble Baroness said, they often concern women who are fleeing sexual violence. The Government’s response to the allegations was to expect contractors, in this case Serco, to maintain the highest standards. Will the Minister accept that saying it does not make it happen? When the UN investigators are not permitted to go into Yarl’s Wood to see for themselves, that is something of a disgrace. Will the Government commit to a thorough, fully independent investigation into the circumstances at Yarl’s Wood as a matter of the utmost urgency?

[Lord Bates]

Certainly, as we have said, if the information is supplied to us, it will be investigated very thoroughly indeed. The circumstances there have been subject to regular investigations by Her Majesty’s Chief Inspector of Prisons. In relation to the UN rapporteur who asked to visit, that was a very last-minute request. We had set up a very detailed programme, including meetings with the Chief Inspector of Prisons and the Home Secretary, and had offered other meetings. We are open to further approaches in due course in the future.

Counter-Terrorism and Security Bill

Debate between Baroness Smith of Basildon and Lord Bates

Monday 26th January 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, it is always with some trepidation that I rise to speak in a debate where I am the only non-lawyer to contribute, so I was particularly grateful to hear my noble friend speak, so I am not the only non-lawyer contributing to this debate. All noble Lords have made the point that relocation with a TPIM should be an exceptional provision. That has been the case. We were very disappointed when the Government removed the relocation part of TPIMs and the old control orders. Nobody likes the idea. As the independent reviewer said, this is something that has to be done in the interests of public safety. My understanding is that they are used only rarely. If my information is correct, currently only one person is subject to a TPIM provision.

Not being a lawyer, I have a couple of questions for the noble and learned Lord, Lord Brown. I think one of the reasons why the Government have made changes here is because they consider that substituting,

“is satisfied, on the balance of probabilities”,

for “reasonably believes” is a higher legal test. The noble and learned Lord, Lord Brown, said that is not the case. I am not a lawyer, so I leave it lawyers to have that debate, but it would be helpful to have some clarity about whether that is in law a higher legal test than “reasonably believes”. The noble Lord, Lord Carlile, said that in effect this is already happening and is how the courts see their role at present. If that is the case, it would be helpful to have some facts on that.

My other point was alluded to by the noble Baroness, Lady Hamwee. It is about individuals subject to the relocation part of a TPIM having no connection. My understanding is that part of the reason would, in some circumstances, be that the person would have no connection with the area they were going to to ensure that they were not associating with people they had engaged with in the past who had led them into terrorism-related activities or potential terrorism-related activities. That is not an easy thing for anybody, and nobody welcomes somebody being moved to an area where they have no connection, but if we were to rule that out in all circumstances, that might be quite difficult. I would be interested to know a bit more about this. I think there is widespread support for a very high test that should be used only in exceptional circumstances, but I am interested in the Minister’s comment and welcome further clarification from the noble and learned Lord, Lord Brown.

[Lord Bates]

My Lords, I am grateful to noble Lords for having spoken in this debate. I say that I am grateful as a general courtesy. It has not been an easy debate to speak to, and I ponder whether my response will be sufficient to ease noble Lords’ and the noble and learned Lord’s concerns. I shall just raise some points with the noble and learned Lord on his amendment, but I give advance notice that this is one issue on which we need to reflect more.

I am particularly cognisant of the support that the amendment has received from my noble friend Lord Carlile, as a former Independent Reviewer of Terrorism Legislation, as well as from my noble friend Lord Macdonald, who reviewed the legislation in 2011. He looked at its adequacy, which led in a way to the introduction of the more focused TPIM. Then, of course, there is the noble and learned Lord, Lord Hope. So there has been a range of voices. I shall put some points and answer some questions and then take it from there.

I am grateful to the noble and learned Lord for raising this matter; he has tremendous expertise in this area. Replacing the previous text at the point in the Bill does not amend the standard of evidence that the Home Secretary must apply when considering whether the person is or has been involved in terrorism. I underscore the point that all noble Lords have made—the noble Baronesses, Lady Smith and Lady Kennedy, made it—that this is a regrettable necessity. The amendment would therefore have the effect of requiring, for TPIMs that include relocation, the court and the Home Secretary to make independent judgments on whether the person is or has been involved in terrorism, but on different bases. It is therefore highly likely to lead to some confusion. It also removes the enhanced safeguard of raising the standard to that of the “balance of probabilities” for TPIMs which do not include relocation.

The Government recognise that the enhancements to the TPIM Act in the Counter-Terrorism and Security Bill were not part of the package of measures agreed by Parliament in 2011. It is therefore right that we consider whether the current legal threshold of reasonable belief continues to be the appropriate test for the imposition of a TPIM. We have concluded that the threshold should be increased for all TPIM notices to recognise the stringent preventive measures that may be imposed. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make the decision to impose a TPIM notice to protect the public from terrorism. It is therefore right and proper that it should continue to be for the Home Secretary to decide whether a TPIM notice should be imposed, as it has been since 2011 and as it was under the previous system of control orders established in 2005.

I well remember the noble and learned Lord’s speech at Second Reading. He apologised, but I think that we were all immensely helped when he talked about his experience of how control orders were often struck down by the courts when they were actually brought forward. The TPIMs were therefore an attempt to limit the incidents in which they could be introduced on that basis, by introducing time limits and raising the threshold test, as well as allowing them to have access under supervision to the internet and telephony.

The court will continue to be required to review the Home Secretary’s decision as to whether the conditions for imposition of a TPIM are met—and the court must now, as part of its review, satisfy itself that the Home Secretary could make that decision at the higher legal threshold. This comes to the point raised by the noble Baroness, Lady Smith, who asked whether it is a higher legal test to have a “balance of probabilities”.

Although I tread deferentially in the company of distinguished lawyers, certainly my understanding is that you have reasonable suspicion, then reasonable belief and then, above that, a higher threshold of the balance of probabilities, which is where we are heading now. The courts will continue to apply an intense level of scrutiny to the decision-making process on the issue.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, this has been a long debate with some powerful and informed speeches. I take issue with one thing that the noble Lord, Lord King of Bridgwater, said at the beginning of his comments. I think he was referring to something that had been said to him about this being an unacceptable use of parliamentary time. I totally disagree. In fact, my criticism is that we do not spend enough parliamentary time discussing issues that are of primary importance to both our security and our liberty and to finding the balance between them. Your Lordships’ House has enormous expertise, interest and experience on these issues, which this debate has shown very clearly.

Whatever one’s views on specific amendments, it has become clear that the general view is that legislation is being outpaced by the speed of change in technology. We have had a serious and very thoughtful debate today about the balance between security and privacy in what our security services and police require, and how we can legislate most effectively from an informed position, with public understanding and consent. Technology changes rapidly. That means that we, as parliamentarians, have to respond to those changes and ensure that legislation meets the challenges that those changes bring.

Last July we brought in emergency legislation, the Data Retention and Investigatory Powers Act. My noble friend Lord West referred to a six-year delay. Some of the points he was concerned about were brought forward in that legislation, which was due to a European Court ruling that struck down something that we had put in secondary legislation rather than primary legislation. We were able to address that in DRIPA—as it is affectionately known—and we supported that Bill to ensure that the existing capability was maintained. However, we were then highly critical of the Government's use of the fast-track procedure, as they had ample opportunity to bring that legislation before the House sooner. We said then—and it was very evident—that an ad hoc, piecemeal approach to such serious and important issues using fast-track processes was unacceptable.

At our instigation all parties agreed on a thorough statutory review, to be undertaken by the Independent Reviewer of Terrorism Legislation, David Anderson, into the capabilities needed to meet changing technology, and on the oversight and the safeguards that are necessary to ensure that any legislation is both necessary and proportionate. In addition, the Intelligence and Security Committee is examining how we can properly balance both security and liberty in online communications.

However, a theme of this debate since we started it is the question of where the Government's plans to tackle this issue are. Over two years ago the Government withdrew their Data Communications Bill following serious criticisms from the Joint Committee of both Houses which had been set up, and was chaired, as we have heard, by the noble Lord, Lord Blencathra—a highly qualified committee of parliamentarians, including future and former Ministers. I reread this report over the weekend. The committee’s criticisms of the Government’s Bill were serious and far-reaching: the Bill’s provisions were too sweeping and too broad, it paid insufficient attention to privacy issues, and it went much further than it needed to. The report criticised the safeguards and the definition of communications data, and it was highly critical of the Government’s analysis of the costs and benefits, describing some of the figures as “fanciful” and “misleading”. It was also critical of the additional personal powers provided to the Home Secretary. That is very serious criticism.

At the same time, the committee was explicit about its necessity. The noble Lord, Lord Blencathra, in his powerful contribution, quoted it. It said that,

“legislation which will provide the law enforcement agencies with some further access to communications is needed”.

The committee suggested a more balanced proposal to be brought forward for consideration and recommended improvements to the Bill. As the noble Lord, Lord Blencathra, said, that information would be presented to Parliament and it would be for Parliament to decide that balance and where the line must be drawn. But that was over two years ago, and the Government have not brought forward any further proposals to give Parliament that opportunity to decide. Last week the Home Secretary told the other place that she had accepted the recommendations, but we have had no explanation as to why she has not come forward with revised provisions other than the limited measures in this Bill and those in the 2014 DRIP Act.

Now, as the general election looms and despite the excellent work of the Joint Committee, the Prime Minister and the Home Secretary have started to speak out about the need for new powers but have not produced any evidence to Parliament, have not initiated a serious debate on the detail, and in more than two years have not produced, so far as I am aware, a new draft Bill. But we have heard today that there is a draft Bill. The noble Lords, Lord Blencathra and Lord Armstrong, have seen it, but has anyone else? Has the Minister seen the draft Bill, which apparently the Government have sitting on the shelf?

I say to those who want to characterise this debate as being about either those who care about security or those who care about liberty that they are doing the public a serious disservice. I really do not like the term “snooper’s charter”; the issue is bigger and far more serious than that. The police and our agencies need the capacity to capture intelligence information that will foil terrorist attacks. They need to be able to respond quickly to identify, for example, the last known location of a missing child or a murder victim. They need to know who sends abusive images of children, and they need to monitor potential terrorists. They also need to build their capability to tackle online fraud and cyberattacks, which are escalating all the time.

Some of the tools, particularly in relation to the retention of communications data, are controversial and cause concern. If we want the public to support such powers, we need to provide more information about why they are needed, how they will be used and how privacy will be protected. That is why we have to be prepared to have an open and honest public debate about the framework, the principles and the safeguards to ensure that these powers cannot be abused. Obviously such a debate has to be sensitive to the necessity of not exposing intelligence capabilities and should recognise the fact that some details must remain secure so as not to endanger national security or criminal investigations. Any legislation has to be necessary and proportionate, and it has to strike the balance between security and liberty. It is not an either/or. The public are entitled to expect both, and they are entitled to expect us to determine that balance from an informed position.

It is widely accepted that there has been a technical revolution in how we communicate and that the law and the oversight framework are now out of date. We need to understand how far and how quickly new technologies are outstripping the legal framework. We also need to understand how the use of new technologies has blurred the distinction between communications and content, as well as between domestic and international communications using mobile phone and tablet apps. The last debate we had on this in your Lordships’ House showed that many noble Lords are still confused about the difference when communicating through web apps. The noble Baroness, Lady Lane-Fox, referred to the challenges posed by the dark web. How many of us here today, apart from the noble Baroness, can claim to have the expertise that is needed to consider all the details of these issues? We need to understand not only the legal implications but the privacy and technical implications.

David Anderson’s report examined the details of issues such as authorisation, access, storage, technical capabilities, checks and balances, safeguards and so on. We are clear that following both that report and the report of the Intelligence and Security Committee, the Government must take action. Indeed, there is a time imperative to do so before the DRIPA provisions expire in 2016, at which point new legislation must be in place and fully operational. The Counter-Terrorism and Security Bill introduces further measures to address the issue of identification of a device that is used for communications at an IP address, given that in many circumstances multiple users will be sharing the same IP address. We support those changes. We have been clear that we are willing to work with the Government to discuss capabilities and safeguards, the powers that are needed, and the checks and balances that are required to ensure that the detail between protecting our liberty and protecting our security is right, and we want to engage the public in that debate.

But the Government have not initiated that debate. They have had the opportunity to do so, and apparently the legislation for that is on the shelf in the Home Office, gathering dust. That is why noble Lords have tabled their amendments today. However, what they have been unable to do in the time available and without access to the resources and information of government is what the Home Secretary has promised, and that is to adapt the original proposals to take account of the concerns and criticisms of the original Bill. I appreciate that the noble Lords have made the judgment, which is justified in part, that people are more accepting of measures that deal with terrorism and serious crime. However, when we look at some of the detail and examine the report of the committee, we can see that there are a number of other issues to which the attention of the Committee should be drawn.

Interestingly, one of the criticisms in the report was not of the purposes of the Bill, although the noble Lord, Lord Blencathra, did say that the number of organisations that can have access should be limited, but of something that goes much deeper. The Government’s view was that wider powers may be needed in the future, but the committee rejected the notion that Parliament should grant powers on the precautionary principle and thus without a current and pressing need.

I will not go into the detail about the individual clauses before us today because other noble Lords have spoken about them, but it is clear that they have not been able to take into account the recommendations for changes made by the Joint Committee. Perhaps I may mention just one because it raises a serious issue. In the detail of the amendment before the Committee today, no provision is made for the recommendation of the Joint Committee that any legislation should provide for the wilful or reckless misuse of communications data to become a specific offence that is punishable, in appropriate cases, by imprisonment. That is a recommendation of both the Justice and the Home Affairs Select Committees of the other place. Although if passed these amendments would be returned to the Commons, they have not been properly discussed and debated. This is complex and detailed legislation that requires proper scrutiny and expert advice. To have such clauses in fast-tracked legislation whose Report stage will be taken next week makes that difficult.

I have already referred to the assessment being undertaken by the independent reviewer, David Anderson. His review needs to address the serious points that have been raised by the noble Lords, Lord King, Lord Blair and Lord Carlile, and my noble friend Lord West. He also needs to deal with the points raised by the Joint Committee more than two years ago. We insisted on that statutory review and all three parties supported it. It is extremely unfortunate that we are in a position today where the Home Secretary has made no proper public or parliamentary response to the Joint Committee on the independent review, which was started just last summer at our instigation and where currently we have no proper process for consultation or the detailed scrutiny of proposals. That was yet another complaint of the Joint Committee.

The noble Lord, Lord Condon, talked about a road map. The Government need to set out a proper process for this. We need to see detailed legislative proposals from the Government, along with a summary of the capabilities and the safeguards to take account of the issues raised last time. We need to ensure that the measures are sustainable and enjoy broad public consent, otherwise we will undermine confidence in the vital work that the agencies do, and companies whose co-operation is needed will find themselves under pressure from their customers to find ways around the legislation. So although we do not think that these amendments are the right ones—I think this was acknowledged by the noble Lord, Lord King, who spoke of the amendments that he would be prepared to incorporate for the Joint Committee report—because they do not fit into a wider government process, we do think that this is an extremely serious debate. I look forward very much to the Minister’s response.

[Lord Bates]

My Lords, this has been an extremely good debate, and in that spirit the actual sequence of events here is worth considering for a moment.

The Government brought forward the Bill currently before the Committee seeking a broad, cross-party approach to these matters. I and the Home Secretary are grateful that the Opposition agreed to the semi-fast-tracked procedure and a shortening of the intervals between the various stages so that it could make its way on to the statute book and thus give the security services and the law enforcement agencies the extended powers which they have been seeking. These include the temporary seizure of passports, temporary exclusion orders, the right-to-carry schemes on the air side, the IP addresses that we have been talking about, as well as the Prevent strategy measures. Basically, in approaching this, we have tried to listen to the various bodies that have spoken to us. We have listened to the views of the Independent Reviewer of Terrorism Legislation, and we have brought forward the legislation which is now before your Lordships’ House.

Going further, we of course recognise that the Regulation of Investigatory Powers Act, as was mentioned by several noble Lords, is something that is desperately in need of review. People recognise that. The world has moved on since the year 2000. There is a real fear that the pace of technology, in the phrase of a number of noble Lords in this debate, is outstripping the legislative and security capabilities of our country to keep us safe. That is the context in which we find ourselves.

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[Lord Bates]

That is a more difficult question, which I am sure is why the noble Lord has pressed me on it. That is not something I feel able to give a commitment on at this stage. However, he is certainly right to put his finger on the point that we have someone there in David Anderson, the Independent Reviewer of Terrorism Legislation, whom we have charged in statute with a particular responsibility. Of course he should have sight of all information which would be relevant and pertinent to the requirements that we asked him to undertake on our behalf last year.

[Baroness Smith of Basildon]

I note the Minister’s response to the noble Lord, Lord Carlile. Can I ask for an assurance that the Official Opposition will also be given sight of the draft Bill? When we return after the election, whichever Government are in power, they will want to start work on this immediately. It would help if all sides of your Lordships’ House and the House of Commons had access to the detail of the draft Bill.

[Lord Bates]

The noble Baroness will perhaps understand if I need to just check with people on a slightly higher pay grade whether that is a commitment which I can make. I will certainly look at the issue with regard to the independent reviewer. I will certainly give an answer by Report to the very reasonable question which has been put forward.

A number of questions have been addressed in this debate, but I am conscious that we have spent considerable time on it. I will give an undertaking and say that this is not something that we want in any way to be seen to be distancing ourselves from. We want to put it under active review, and it is under active review. The contributions which have been made in the debate this afternoon on these amendments have afforded us an opportunity to air these issues and to identify where the gaps in agreement are, as well as where the gaps in capability are. We will reflect on those. I may have more to say at Report on that, but in the interim—

Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2015

Debate between Baroness Smith of Basildon and Lord Bates

Thursday 22nd January 2015 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I think that respect for others and others’ views, including on religion, is very important. I think that respect, regard and politeness—not wanting to offend others—is important. It is very difficult, however, to draw the line, and there can be nothing at all that can justify or excuse the behaviour of those who murdered the journalists. If Paris taught us anything, it taught us that, when the crowds came out in Paris, where you had people from all faiths and none linking arms, walking through the streets, they were standing together against violence, but they were also standing together for freedom and democracy and the right to think and speak as they wish. There is, however, a difference between showing that we stand for freedom and making clear that we abhor such violence in any circumstance, and that there can never be any excuse or reason for it.

I was about to say to the noble Lord before that intervention that I support the order, but he will have heard the comments around your Lordships’ House tonight that this is not just about describing groups; it is a battle for hearts and minds as well.

[Lord Bates]

My Lords, I am very grateful to all noble Lords who spoke and contributed in the short debate that we have had on this important issue. I am particularly grateful to the noble Baroness, Lady Smith, for her contribution. What we must do is work across parties to address these important issues. I appreciate that so doing requires a degree of trust. That is the reason I want to set out the safeguards that are there—our own checks and balances and also the evidence, as far as we are able—and that are behind the proposals which we are making and debating today.

The noble Baroness referred particularly to the importance of prevention and talked about hearts and minds. We have the Prevent strategy in place. I noted her comments about funding, although the figure that I have in front of me is £40 million for 2014-15. However, the Prime Minister has recognised that, in view of the increased threat, we need to put extra money behind this effort. He pledged a further £130 million. A large element of this will go to the agencies and security services, which are in the front line of keeping us safe, but there will also be an element for working with the Channel programme and Prevent to try to prevent people being drawn into extremism and radicalisation.

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[Baroness Smith of Basildon]

I agree with everything that the Minister has said. My only question is: did he say or hint at the beginning of his comments that the reason that no firm action other than referrals has been taken at this stage was that this order had not gone through? My understanding was that the action which was taken under the Terrorism Act was not dependent on the proscription order.

[Lord Bates]

The noble Baroness is absolutely right. The content contravenes the Terrorism Act 2000. Action should be taken whether or not proscription has taken place.

My noble friend Lord Marlesford referred to the Muslim Brotherhood. As he said, this issue is under review. The Prime Minister commissioned an internal review of the Muslim Brotherhood. The review considered its philosophies, activities, impact and influence on our national interests at home and abroad. This was an internal review intended to inform government policy. We expect to be able to say something publicly about its conclusions in due course. I appreciate that that may not go quite far enough for my noble friend, but suffice it to say that the work of Sir John Jenkins has been completed and is now being reviewed.

We are conscious of the particular nature of the Muslim Brotherhood, which is a party that is in government in some countries—I think in Morocco, at least. We need an extra level of due diligence in reviewing this, but we certainly take on board my noble friend’s point. If we did not think that there was a problem, we would not have asked Sir John Jenkins, a distinguished diplomat with considerable experience in the Middle East, to undertake a review. We look forward to that review taking place and to being able to say more about it.

Although the interesting contributions made by my noble friend Lord Elton and by the noble Lord, Lord Judd, were not particularly directed at me, I will say in passing that I think we all feel that respect and courtesy are very important elements. When people make light of the faith that I adhere to, I find it hurtful and not comfortable. However, there is a world of difference between that approach and taking the actions that we saw in Paris. I thought that one of the most heroic—if I may use that term carefully—parts of what happened were the actions of the Muslim personal protection officer to the journalist who had been under threat. He lost his life at the hands of the terrorists. I am sure that he was as offended as any other person of his faith would have been, but he chose to defend their right to speak freely.

We have put forward the arguments for proscription of these groups and demonstrated our condemnation of their activities and our support for the efforts of members of the international community to tackle terrorism. I commend this order to the House.

Counter-Terrorism and Security Bill

Debate between Baroness Smith of Basildon and Lord Bates

Tuesday 20th January 2015 Lords Chamber

[Lord Bates]

I shall come to that point in the pile of papers that have found their way to me. But I can anticipate a theme that will come through these notes—we want it to be as quick as is possible, bearing in mind the safety of the return. That is what we want it to be, and I am sure that that will be the message. The second part of the message will be to say that each case will be slightly different. The difficulty with being too prescriptive is that you tie people’s hands in responding in slightly different ways to slightly different levels of intelligence or knowledge about a particular individual. Effectively, the purpose of the order is that we want that person to return to the UK in a managed and safe way.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for that. I understand why he introduced his response in the way that he did. However, does he accept that the questions asked by most noble Lords, and certainly my questions, did not challenge the process or the principle of managed return? What we are seeking is that the return should be as efficient, effective and speedy as possible to ensure that somebody is returned home. I am sure that he was not trying to suggest that we would in any way want to put British citizens at risk or in danger. However, for a managed return to have credibility and to be effective, it has to be efficient. I appreciate that circumstances differ but there are certain scenarios that have to be addressed so that we can have confidence that the process will not be like the one for addressing Ebola, which did not work out in practice. It has to be efficient and effective. Those are the very points on which we are seeking responses.

[Lord Bates]

The noble Baroness is absolutely right. I very much appreciate the constructive and thoughtful way in which she has engaged with the Bill on behalf of the Opposition. Not one of the questions posed by the noble Baroness or by any other noble Lord on this amendment was anything other than fair and reasonable and seeking elucidation on the serious power that we are introducing here. Equally, when I introduce the problem as the precursor to the power, I am not trying to make a point. I simply want to put it in context so that people reading this part of our proceedings can see how we are approaching this issue.

As regards the specific points that were made, the noble Baroness, Lady Smith, asked whether all TEO subjects would be escorted back to the UK by police officers and whether we would pay for their flights. Whether a temporary exclusion order subject is escorted back to the UK by UK police officers will be decided on a case-by-case basis. Similarly, whether the UK Government would meet the costs of the return flight would depend on the facts of the individual case. In some cases, the individual may be deported by the other country involved, which may provide escorts and meet the costs. In some cases, no security may be needed for the escorts and the individual may easily be able to bear the costs or, as my noble friend Lord Ashton said in a previous example, it may be possible to rearrange the flight departure.

The noble Baroness expressed concern that these people might just melt away. Obviously, we cannot create a power for detention extraterritorially, but we will liaise with the other country in advance. In most circumstances we would expect the other country to take steps to manage the person involved. We would deal with the issue through the diplomatic network and our embassies in most countries around the world. Our staff would be in contact with their opposite numbers. Certainly, the hope and the anticipation is that where a TEO has been put in place, the issue would be addressed before the person ever turned up at the airport. As soon as is practicably possible after the person comes on to the radar, they would be contacted, informed about the temporary exclusion order and the process of managing the return would be initiated.

Will these people have consular access? They are British citizens, as I said to the noble Lord, Lord Harris, and they have the same right to seek help as any other British citizen. My noble friend Lady Warsi asked whether they could be returned as detainees. I realise that that has a particular meaning in international law. As set out in the Bill, the individual may return to the UK under the terms of a permit to return. But they may also return if they are deported by another country. In practice, the difference between the two methods of return would not affect the treatment of the individual on their return to the UK, as their return would not have breached the temporary exclusion order. They would then both be subject to the in-country obligations.

The noble Lord, Lord Harris, referred to rendering a person stateless but the person will retain the right to return to the UK and to seek consular help. However, the individual may choose not to return or not to engage with their order, but that would be a matter of their own choosing. My noble friend Lady Warsi referred to the risk of torture. The Home Secretary will not seek to impose a temporary exclusion order where she considers that doing so would create substantial grounds to believe that the individual would face a real risk of torture or inhuman treatment, in keeping with the human rights obligations in the Bill. The noble Baroness, Lady Smith, asked about international discussions. We are engaged in discussions with our international partners. Other countries have been interested in this measure and sought to discuss with us the details. These discussions have so far been positive. Our partners recognise that this is a shared threat and are keen to engage in a shared response.

As to the requirement to attend a deradicalisation programme on their return, the requirements placed on the individual once they are back in the UK will be decided on a case-by-case basis. These may include a requirement to engage with a programme potentially comprising reporting, notification of change of address and deradicalisation activities. I do not have a note on the specific point raised by my noble friend Lady Warsi on whether other programmes might be considered. There are deradicalisation programmes such as Channel and Prevent but, at this stage, I am not aware of any other efforts to create new programmes. We are very much focused on making the ones that we have work and making them as effective as possible.

The case studies put to us by the noble Baroness, Lady Smith, were helpful. She gave the example of Mr A being detained in another country. This will depend on the laws of the other country. When a person is notified of a temporary exclusion order, they will be told how to get a permit to return. If they arrive at the airport in another country, that country may well seek to detain the person. The person would then be able to liaise with the British authorities through the authorities of the other country to agree the terms of their permit and the process of managed return. I am grateful to the noble Baroness for raising this point but I can assure her that the Government have existing successful processes in place to prevent individuals travelling to the UK and for managing the arrival of certain individuals into the country. For example, we operate a no-fly list as well as a procedure to arrest certain individuals for terrorist-related offences when they arrive in the UK. Unlike the case she raised on Ebola, we are talking about named individuals who have been informed about the order prior to returning. These systems will therefore ensure a controlled return and the authorities on this side are aware of what is expected of them.

In terms of a reasonable timeframe, the Bill makes it clear that there is a duty on the Secretary of State to issue a permit to travel to a subject of a temporary exclusion order within a reasonable period. The next question is: what is a reasonable period? That will be determined on a case-by-case basis. It will need to take account of factors such as frequency of flights to and from the country and, of course, the level of co-operation from the individual who is the subject of the temporary exclusion order.

I have given a reasonable number of replies. I think that my noble friend Lady Hamwee raised some other points on which I do not have notes. She can either remind me of them—I am happy to give way—or I am happy just to stand by the undertaking that this is a complex matter with areas of detail on which I am happy to reflect and write ahead of Report stage.

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[Lord Bates]

It is the exclusion order.

[Baroness Smith of Basildon]

I am grateful for that. All the Bill says is:

“It is for the Secretary of State to decide the terms of a permit to return”.

There is no framework. I fully understand, and I think we all appreciate, that the terms of every permit will not be exactly the same. It is entirely reasonable for the Government to have flexibility in dealing with that. But there should be a framework, which is what we are talking about in terms of my purely probing amendment. The more I think about it, the more sense it makes. The framework should be something that the Home Secretary can consult on before implementing. I am not referring to the individual terms of every permit but the framework in which it would operate.

The noble Lord said that this is entirely different from the Ebola situation because they are named individuals whose return would be expected. The return of the nurses who returned in January was expected. They were all on the same flight and they expected to be met at the airport. Having been met at the airport, their experience was described by them as an absolute shambles. I say that there are similarities not to be difficult but to indicate that there is experience of why these things have to be managed very carefully.

There are a few questions that the noble Lord did not answer. I asked whether consulate authorities would be notified if there was someone who was subject to a TEO in their area and if it was thought that they were about to travel. He answered part of that to say what the consulate’s role would be, but would they be notified of a TEO?

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[Lord Bates]

The consulate would be an integral part of the TEO process in communicating to the country that that order was in place.

[Baroness Smith of Basildon]

That is helpful and I am grateful. I am still uncertain as to the progress made in discussions with other countries. Other noble Lords picked up on that point as well. There are still a number of questions to be answered. The only reason for asking these questions is to ensure that we get it right. The worst-case scenario will be to have people subject to TEOs who, for some reason, cannot return or their return is managed badly, and that there are some problems. They may return under a false name. We want to ensure that people who want to return are able to do so in a managed way, and that when they return they are interviewed and may be subject to TPIMs if that is appropriate. That is the safest way to treat those who may cause risk to British citizens, and the safest and the best way to protect British citizens. I am grateful to the Minister for his effort. He has reassured me on some points but there are still some outstanding points. I hope he will look through Hansard, and perhaps offer the opportunity to talk to him and officials to iron out any further concerns that we have. I beg leave to withdraw my amendment.

Counter-Terrorism and Security Bill

Debate between Baroness Smith of Basildon and Lord Bates

Tuesday 20th January 2015 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I welcome the government amendments and I thank the Minister for his explanation of them. I also welcome the Government’s conversion to the principle of judicial oversight in regard to temporary exclusion orders. That is because it has to be said that any measure which seeks to restrict the movements of an individual and restrict their right to return to the country of which they are a citizen is a hugely significant power. I will not go into the other points that have been raised because we have yet to discuss the detail of how the exclusion orders will work, but the noble Baroness said that they would remain in force for two days. My information suggests that they can remain in force for two years from the date they are first imposed.

The Government previously insisted that this was a power for the Home Secretary alone, but that was not a view we could share. Both the Home Secretary and the noble Lord have referred in their comments to judicial review. That was already in place, but judicial oversight is, as we have heard, something that the Constitution Committee referred to and the Joint Committee on Human Rights said would be a necessity. Indeed, from the beginning we have been convinced of the need for parliamentary scrutiny of this aspect of the Bill. At Second Reading in the other place on 2 December, the shadow Home Secretary, my colleague the right honourable Yvette Cooper, rightly pointed out that there is such a judicial process for TPIMs and stated that we would be tabling amendments on judicial oversight. The Home Secretary responded in Committee on 15 December saying that such oversight was not necessary because it was the operation of a royal prerogative in terms of cancelling a passport, and that it was less restrictive than the conditions under TPIMs. The debate continued through to the Report stage, where again we tabled amendments which both the government parties voted against on the explanation from the Minister that there had not been,

“the chance properly to consider the Opposition amendments”.—[Official Report, Commons, 6/1/15; col. 208.]

Three weeks has been long enough for noble Lords to consider the Bill, but it was not long enough for Home Office Ministers to consider our amendments. That is why I am particularly grateful to the noble Lord. In the 10 days since it was voted down in the House of Commons, the Government have found time to consider the issues and table amendments. It is a minor point, but I received an e-mail about this last Friday evening, which was a little late. Also, it would have been nice to have had the amendments with that e-mail. Perhaps that could be considered for the future when letters about new amendments are sent out at a late stage.

However, those are minor matters as compared with the fact that the Government have come around, and we greatly welcome that. The case for judicial oversight of this has been clear from the beginning. We understand and appreciate that there are times when a swift application and decision have to be made, but the Government have rightly recognised in their amendments that that should be subject to judicial processes.

Perhaps I may raise a couple of points for clarification. There are some differences between the amendments we tabled at the start of the process and government Amendment 52. First, the new amendment does not require the Secretary of State to set out a draft of the proposed notice in the temporary exclusion order application, unlike subsection (2) of the proposed new clause in our Amendment 54. Why do the Government not think it necessary to set out the draft of the proposed TEO notice, as we propose? Secondly, proposed new subsection (2) provides that the court may, in addition to giving the Secretary of State permission to impose a TEO,

“give directions to the Secretary of State in relation to the measures to be imposed on the individual”,

who is subject to such an order. That is not in the government amendment. There may be good reasons for that, but it would be helpful to know from the noble Lord the reasons for those changes.

We are committed to judicial oversight along with the other measures we have proposed. We have not had total success, although the Minister has agreed to reconsider some of them. These measures should be subject to a sunset clause; that is, a renewal requirement for Parliament to look at them again. We also think that Parliament should be assisted in that consideration. There should be further scrutiny in the form of a report from the independent reviewer and a report on their use from the Home Secretary. All these measures are important, but we are pleased that the Government have accepted the need for judicial oversight. It will not threaten the ability of the Home Secretary to impose a TEO where there is intelligence and evidence to support that measure, as the noble Lord has clarified. However, what judicial oversight does provide is legitimacy and validity to the order. That, I think, will provide the public with greater reassurance when they see these orders being imposed.

We support these amendments, but it would be helpful if the noble Lord could give us an explanation of the differences between our proposals and those set out in the government amendments.

[Lord Bates]

I am grateful to all noble Lords for their broad welcome for the amendments which have been put forward. As the noble Lord, Lord Pannick, said, we have listened in the other place, which is why my honourable friend the Minister for Security and Immigration, James Brokenshire, said that he would seek to bring forward measures in this House. We have listened to the Independent Reviewer of Terrorism Legislation and what we have proposed has been moulded by and fits in with what he sought to set out. We have also been significantly influenced by the persuasive report of the Constitution Committee, to which I referred earlier. Again, I thank my noble friend Lord Lang for his thoughtful work, which has been extremely helpful. That has all come together and we have made our recommendations and presented the amendments.

Let me deal with some of the points raised, in no particular order. However, certainly on the human rights side, I stand by the declaration that I made in the Bill. It is a very important statement in terms of giving assurance to people about the proportionality of what is being proposed regarding temporary exclusion orders and how they will operate.

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[Baroness Smith of Basildon]

The Minister said that the in-country application of a TEO—if I understood correctly—would be two years. Am I incorrect, then, in my understanding that if a temporary exclusion order were served either at the address or in person, the person’s return would be subject to that for two years, so that if at any time in that two-year period they sought to return to the UK they would be subject to the conditions of the TEO? Is he saying that that is incorrect and it is only the in-country provisions of the TEO that last for two years?

[Lord Bates]

I will clarify that point to make sure I have got it absolutely right. My belief, however, is very much that we are talking here about two elements. On the in-country element, technically—of course, we are dealing here with legal processes and they would have to be reviewed—if the person were to refuse the conditions of their return they would not be able to return and therefore the order would effectively remain in place while they are not in the country. The intention, however, would be that there would be reasonable requirements about being accompanied, the time and place, their mode of travel, the fact that they would be met, and the in-country element would expire at that point. However, I will look again carefully at the words that I used and clarify them if need be.

The noble Baroness also asked why we would not provide the court with the conditions to impose on an individual at the application stage. Temporary exclusion orders differ from TPIMs in that the imposition of a TEO is likely to be put in place many months before the individual returns to the UK and is subject to in-country measures, as I have mentioned. The nature of the individuals who will be subject to TEOs means that the specifics of their cases will vary, and it would be inappropriate for the security services and police to decide on the conditions so far in advance. The individual will be served with the conditions of their return to the UK and will be able to challenge these conditions as part of the statutory review.

The temporary exclusion order remains in force for two years. This includes both the out-of-country provision and the in-country element. In practice, how long the in-country obligation lasts will depend on how quickly the person returns, which is what we were discussing there.

I think that I have covered the point of my noble friend Lady Warsi about the briefing session. I am grateful that she found that helpful.

Higher Education: Overseas Students

Debate between Baroness Smith of Basildon and Lord Bates

Monday 19th January 2015 Lords Chamber

[Lord Bates]

I totally agree with my noble friend. Those are exactly the types of profession where we want to see more places occupied by highly skilled and qualified graduates in this country. They would have no problem securing employment and meeting the criteria under the tier 2 provisions in either of those examples. Information released last week on the number of students in the past academic year showed that the number of postgraduate students staying on for research had risen by 9%, which we should all welcome.

[Baroness Smith of Basildon (Lab)]

My Lords, the noble Lord has tried hard to reassure your Lordships’ House on the Government’s policy here. Obviously, no one wants there to be abuse of the system, but the noble Lord must understand that there is a great deal of doubt whether the Home Secretary even tries to understand the benefit and the value of overseas students to the UK for both universities and the economy. The plan to require all students to return immediately would, as the noble Lord has heard, lose the talents of doctors, engineers and entrepreneurs to the UK economy and UK society. If the Home Secretary cannot even convince her Conservative colleagues in the Cabinet of that policy, surely it is time to think again. I ask the noble Lord to take a message back to the Home Secretary: can we have less rhetoric and more practical common sense?

[Lord Bates]

My right honourable friend the Home Secretary is absolutely committed to opening the doors to genuine students, but not to the bogus students that we were talking about before. When she spoke, it was about a policy that was in the Conservative Party manifesto on page 21, which is that the best way to ensure that we keep a grip on the fact that people are here on the appropriate visas is through them returning to their country once they have completed their study visa and then reapplying for a work visa. That is not the position now. The position now is that they can do that in country. We encourage people to do so where they have high-skill jobs or they want to stay here to set up a business.

Children’s Privacy

Debate between Baroness Smith of Basildon and Lord Bates

Tuesday 6th January 2015 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what assessment they have made of the effects on children of the publication of photographs of them without agreement or permission; and what consideration they have given to the aims of Protect: the Campaign for Children’s Privacy.

[Lord Bates (Con)]

My Lords, I understand the importance of ensuring that children’s privacy is respected and that safeguards are in place to protect it. The Government have introduced the new system of independent press self-regulation and there are remedies available under civil law. The Government are committed to tackling the production and distribution of indecent images of children and criminal offences are available in such cases.

[Baroness Smith of Basildon (Lab)]

My Lords, we have to be clear about what Protect: the Campaign for Children’s Privacy is asking the Government to consider. Surely it is entirely reasonable and responsible that when identifying an individual child in a published photograph, there should either be consent or good reason. If not, the image should be pixilated or blurred. The Minister referred to self-regulation. If that is working, why did Hannah Weller have to go to court and why did the judge say that the law needs clarification? Will the Minister agree to meet Protect in order to understand parents’ concerns and consider how children’s privacy can be protected?

[Lord Bates]

My Lords, I thank the noble Baroness for her question. I should say first that my right honourable friend the Deputy Prime Minister has met campaigners and I would be very happy to facilitate further meetings if that would be helpful. In respect of the particular case to which she referred, this is an ongoing legal matter and I am sure that she will understand if I do not comment on the specifics. But when it comes to the matter at hand, which is that of self-regulation, it is important to note that the Editors’ Code of Practice actually stipulates that where a child is under the age of 16, consent should be sought. That is something which should happen under the code and under self-regulation. Where that does not happen, there is then redress through the civil courts.

Police: Funding

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 17th December 2014 Lords Chamber

[Lord Bates]

I acknowledge the noble Lord’s great expertise in this area. The current Commissioner of the Met, while warning about cuts, also said that cuts without reform would not work. I think that everyone is signed up to the fact that there needs to be reform. What that reform should be is where the debate lies. Our argument is that perhaps there is greater room for the reform of policing—for example, doing away with targets and making just one target of cutting crime, and being better co-ordinated in terms of procurement between forces. Those are arguments that can be had. I also recognise the importance of local policing, which the noble Lord referred to as well.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister is aware that cuts upon cuts to police budgets mean that more functions are now being carried out by the private security industry—even custody suites in police stations. The role of private security is increasing dramatically and it is interacting with the public daily, so why have the Government failed to regulate private security firms? The consultation on this issue had one of the largest responses ever and it was almost unanimous in its support for regulation. The industry itself—that is, the organisations representing those businesses—is calling for regulation urgently, so why will the Government not act in the interests of the public and of the industry?

[Lord Bates]

Of course the private security industry is the subject of regulation, and I will come to that. The reality is that in the past, in 2010, there were 5,000 police officers who were dealing with back-office and administrative functions. We said that, given the need to reduce overall budgets, the essential thing was to protect front-line policing, and therefore that we needed to move those people out of administrative tasks and on to the front line to actually fight against crime. That is what they have done, heroically, and that has led to a reduction in overall crime.

EU: Justice Opt-outs

Debate between Baroness Smith of Basildon and Lord Bates

Thursday 4th December 2014 Lords Chamber

[Lord Bates]

Obviously, we take the noble Lord’s criticisms extremely seriously, given his position. I know that he does not raise these issues lightly. We also take seriously our obligations, set out in the appendix to the Companion, on scrutiny reserve powers. I urge him to accept that exceptional factors were at play in this instance, relating to the objections that were lodged by the Spanish, the Poles and the Austrians in July, which we did not anticipate. This then coincided with the recess period. The Spanish objections were listed only on 7 November and we needed to avoid an operational gap. That was why, in these exceptional circumstances, the Home Secretary had to take the decision to override scrutiny—which she did not do lightly. She did so to avoid people being at risk through the European arrest warrant not being in place. We have met the chairs and the work will be ongoing to ensure that this does not happen again.

[Baroness Smith of Basildon (Lab)]

But, my Lords, very early on in our debates about opt in and opt out, I asked the Minister which other countries the Government had discussed this with. I was told from the Dispatch Box that there was no need to discuss this with any other country; it was a matter for the UK Government. On the matter of substance, how many of the measures that the UK has now permanently opted out of in policing and criminal justice were relevant to the UK, were actually being used and had any value to the UK?

[Lord Bates]

The noble Baroness says that we were not engaging in discussions, but these discussions through the working groups were absolutely ongoing all the time. That was the reason why we secured the improvements which we got through to the European arrest warrant in terms of proportionality, dual criminality and avoiding lengthy pre-trial detentions. In terms of every single one of the 135 measures, again, we set out very clearly in Command Paper 8671, which was laid before your Lordships’ House in July 2013, our view as to what the application was and whether it was necessary. From that, we took the view that 35 were necessary; that was why the Prime Minister wrote in July last year.

Calais: Illegal Immigrants

Debate between Baroness Smith of Basildon and Lord Bates

Thursday 27th November 2014 Lords Chamber

[Lord Bates]

All vehicles have to go through that level of vetting, which is carried out by the Border Force using the latest technology for sensing whether there are people in the vehicle. That is a strong safeguard.

[Baroness Smith of Basildon (Lab)]

My Lords, the noble Lord is talking about lorries but is he aware that desperate migrants will get access to any vehicle in order to seek a better life? Many people travelling to France in their cars for the weekend to do some shopping are being advised in Calais not to leave their cars empty, even to go into a shop or to have lunch. What advice has the Minister given to domestic travellers to Calais, and does he think that we have enough border staff, given the cuts imposed by the Government?

[Lord Bates]

The Border Force has been reformed. We now have a stronger border agency and the toughest border regime in the world. We have 200 million people crossing into the country. The reality is that domestic tourists and other travellers there should be aware that this is a major problem and that it is only going to get worse. They have to use the same level of security to protect their vehicles.

Children and the Police

Debate between Baroness Smith of Basildon and Lord Bates

Monday 24th November 2014 Lords Chamber

[Lord Bates]

I will, and I pay tribute to the work that my noble friend does as chairman of the Youth Justice Board. It is an important partner in making sure that we move forward on this. I was not aware that there is a particular issue relating to statistics; this report very much feeds into the wider work that the Home Secretary is doing in reforming the way our police work, particularly in regard to their sensitivity toward children, who are more often the victims of crime by other children than the perpetrators.

[Baroness Smith of Basildon (Lab)]

My Lords, noble Lords will understand how important it is that young people and children have respect for the police. As my noble friend Lord Harris of Haringey said, young people are less frequently coming into contact with the police as we see cuts, fewer police officers at schools and fewer PCSOs. They do not come into contact with the police so much because police officers are not known in their local communities. It is also equally important that police have respect for young people. On the back of the report of the all-party group, what advice will be given to the College of Policing to ensure that respect for young people is an important training aspect there?

[Lord Bates]

The College of Policing has a very important role to play here, because it can change the codes—which it is doing—on issues such as stop and search, and it can change the culture within the police, particularly in relation to underreported crimes such as rape and domestic violence. I therefore think that this is very much going with the grain of what the College of Policing, which was set up by this Government, is doing to enhance and improve standards in service throughout the police.

EU: Migration

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 19th November 2014 Lords Chamber

[Lord Bates]

My noble friend is absolutely right, and that is one reason why we have said that it is a condition of immigration that the English language must be an important part of that.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister will have heard the disappointment and concern on his side of the House that the Government do not seem to be building workable relations with other countries in the European Union. That makes any change much more difficult. Could the Minister tell me specifically which member states have backed the Prime Minister’s proposals to restrict free movement within Europe?

[Lord Bates]

We are not talking about restricting the free movement of labour—we are talking about restricting the free movement of benefits. I have already listed a number of countries, and Germany is a prime one, which have particular concerns on this that are shared. That includes some of the Nordic countries as well. Some of those countries also had transitional arrangements put in place when we enlarged with the A10 countries in 2004, which the previous Government did not put in place. That led to the major problem that we are now living under.

Mediterranean: Refugees and Migrants

Debate between Baroness Smith of Basildon and Lord Bates

Tuesday 11th November 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, this is an extremely serious issue. The whole House should be grateful to the noble Lord, Lord Hylton, for raising it today and for first raising it in a Written Question. I agree with the noble Lord that this issue should be tackled at source in the countries affected and that they should look to tackle people trafficking and the reasons why people want to leave their homes. However, last week, I asked the noble Lord—the noble Lord, Lord Hylton, raised this as well—whether the Government really believe that this needless loss of life, with people drowning in the Mediterranean, will ever act as a deterrent to the criminals trafficking people or to those desperate enough to get into small boats and leave. He failed to answer the question then. Will he answer me now?

[Lord Bates]

I have tried to answer it. These are very early figures but there is some evidence from Frontex, in a briefing that we received in the past 48 hours, that the trend is turning. We should remember that the relevant figure went up from 70,000 per year to 150,000 and that the number of deaths went up from 700 to 3,000. We think that there are between 300,000 and 600,000 people in Libya waiting to make a crossing. The indications are that the numbers fell in October. There could be other reasons for that and we are following the situation closely. This is something we take very seriously indeed and are trying to abate.

Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2014

Debate between Baroness Smith of Basildon and Lord Bates

Monday 10th November 2014 Grand Committee

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for his explanation. He will be aware that there have been a number of debates on this issue over the past few years in your Lordships’ House. It is helpful to have the two codes of practice before us; it was also helpful that he set it all in context. However, as he will know, following the debate on what became fast-tracked legislation in the Data Retention and Investigatory Powers Act, or DRIP, it was agreed through our amendment in the other place, which the Government accepted, that there will be a full review of RIPA. As I think the Minister said, it has not kept pace with technology and there have been changes. Clearly, there needs to be a full review to ensure that it keeps pace with not just the technology but some of the problems that have arisen, which he also alluded to.

The Minister will also be aware, although he did not mention it in his comments, of the issue raised in debate on the Serious Crime Bill, when the noble Lord, Lord Strasburger, tabled an amendment about concerns regarding journalists and their sources being intercepted and accessed. We have had previous debates about his point about undercover police officers on covert operations having inappropriate relationships with people, particularly between male police officers and women. Regarding surveillance techniques, I think particularly of my noble friend Lady Lawrence, whose family was subject to surveillance that under no circumstances could ever be described as necessary or proportionate. There is clearly a need for guidelines to address that and, if guidelines are not adhered to or something goes wrong, a process by which those issues can be taken up. We certainly welcome seeing the new codes of practice, but I also hope that the Minister will confirm that all these issues will still be discussed and further considered when we have that full review of RIPA by David Anderson, the commissioner.

We have made it clear that there has to be a full public debate on this and I hope that the noble Lord will agree. We do the public a disservice if we stand back and say, “We need these powers”—and the Government do need such powers—“but trust us, everything will be okay”. We would bring the public into our confidence a lot more on these issues if we explained why we need such powers and how they will be used. The public would understand that but we have to do a lot more than just ask for their trust. There is recognition, and I am sure that the public recognise this as well, that covert surveillance or operations have to be undertaken. To suggest that in each and every case they are wrong would be completely to misunderstand their purpose, as I think the noble Lord made clear. Those operations are dealing with some of the most dangerous crime and serious criminals and are an essential part of policing. We are talking about drugs, trafficking, smuggling, sexual abuse and pornography. Often, as I am sure we will come to debate on the Government’s opt-out and opt-in proposals, that information is shared between countries and is an important part of putting together the jigsaw of the details of some of these international crimes, where there is cross-border communication that we can get only if we co-operate with other countries.

I was surprised that in the order there was nothing, unless I have missed it within the two codes of practice, distinguishing between long-term and short-term operations. I would make that a clear definition and perhaps do so on authorisations as well. Regarding some of the things that we expect police officers to do, my local paper ran a story about one officer who had infiltrated a drugs gang. As he got more and more information—he got excellent information that went to court—it was obviously putting him at risk. He ended up having to jump out of the window and run pretty quickly down the street to ensure that he was not caught while still acting under cover.

The two issues that we have raised before, which are largely recognised in these provisions, are the inappropriate use of powers, in regard to which I mentioned my noble friend Lady Lawrence, and inappropriate relations. If the Minister has not read it, I suggest that he reads a book that was written about in the Guardian magazine on 22 June last year. I kept a copy of its excellent article about the problems caused by that kind of covert surveillance when it got out of hand and the powers were abused.

We have two new draft codes of practice. What they and any review needs to address is, first, the safeguards to protect the public while addressing the balance and conflicts and, secondly, establishing and maintaining public confidence in the integrity of the process and system. That is difficult, because you are balancing liberty against security, and privacy against public safety. Those issues clash, which is why the guide is so important. I hope that the Minister will give me an assurance that the draft codes of practice will still be part of RIPA.

The Minister mentioned the consultation. I was a little surprised that he and Mike Penning in the other place gave different numbers; they were only one out, but the noble Lord said that there were 127 consultations, while the Minister in the other place said that there were 126. I went to the website to see what those consultations had said, because I thought it would be helpful to inform this debate if we could see the consultations—the Explanatory Notes say that most of the points were taken on board. However, I went to the website on Friday to be told:

“We are analysing your feedback. Visit this page again soon to download the outcome to this public feedback”.

However, the Minister said today that as a result of the question David Winnick asked of the Minister in the other place, Mike Penning, about whether it would be made public, he was told, “No problem; it can be”. Did the Government never intend to publish the consultation? They now have to go back to everybody who contributed to the consultation, which implies that there was no intention to publish it in the first place. From a personal point of view, I always find the publication of consultation responses extremely helpful in these kinds of debates. I am very disappointed that they have not been published. To suggest that the Government now have to spend money to go back to everybody to ask them if they mind their information being published does not seem to be the best use of resources or time.

I will ask the Minister a couple of questions on the code of practice, because I was not 100% clear about a couple of things. In the Covert Human Intelligence Sources Draft Code of Practice, a piece on page 9 refers to public officials who provide information to the authorities, and there is new guidance on that. Is all that guidance new, or has it been adapted from something that already existed? If a person is providing information—and not always information about an offence; often it is what you might call personal information; and whether or not they become a covert human intelligence source or just a source in the normal course of things—does it make it more likely that they will be reluctant to provide information because they know that they are registered somewhere, someplace, as a covert human intelligence source? I do not know whether you call that a CHIS. Does that make it more difficult for the authorities to obtain information in that way?

On page 19, paragraph 4.20, confidential constituent information is referred to as being confidential information,

“in relation to communications between a Member of Parliament and a constituent in respect of constituency matters”,

because that is held in confidence. Does that also apply to Members of the House of Lords? Although we do not have constituents as such, members of the public contact us about issues. Indeed, the Houses of Parliament website suggests that if you are not happy with the response from your MP, you can contact a Member of the House of Lords. Would we be bound by the same confidentiality as Members of the House of Commons and by the same provisions? That is not clear in that passage, as it specifically refers to Members of Parliament with constituencies.

I would also like a clarification about the authorisation criteria on page 22. The final one in the list says,

“for any other purpose prescribed in an order made by the Secretary of State”,

with the proviso that it has to enshrine the right to family life. Does that mean any order on any issue? It seems to be a very broad power; it would be helpful if the Minister could say something about that.

Finally, on the Covert Surveillance and Property Interference Draft Code of Practice, I have a query about how the role of the surveillance commissioners works. I do not know how many authorisations there are annually, but it would be very difficult for them to look at every case. Would they have to inspect a sample to see if they were happy that the code of conduct had been adhered to and that it was lawful, proportionate and necessary, or do they have to wait for a complaint? Under what circumstances would a commissioner look at the issue?

That brings us back to the guidance about proportionality. Again, the commissioner has been clear about the changes for local authorities, because there were cases when it was not proportionate; the changes to which he has referred are very helpful and we support them totally, but last week the noble Lord, Lord Strasburger, made the point about journalists. How is that affected by the code of conduct before us today?

Finally, I could not find anything about training, although I may have missed it because there are quite a lot of documents to go through and I did not know whether it was raised in the consultation. I refer to the training available to those who provide the authorisations and to those who seek authorisations, under either code. Will they receive any training on the new codes of conduct and the guidance that has been issued so that they know exactly what their responsibilities and obligations are?

I welcome the orders. Significant efforts have been made to address concerns that have been raised that any covert surveillance covered by either of the draft codes of practice is lawful, proportionate and necessary. The deal with the public is that any legislation that will be passed on surveillance is used only for the purpose intended—to make people safer against serious crime, including crime against the community, crimes which makes the community less safe. Terrorism is often mentioned in that context, and that is part of it—but that co-operation to deal with serious crime, whatever the purpose, is the aim. This provision goes some way to addressing that, but I look forward to a full review of all the issues that we have discussed. I hope that we can get to the point of having a proper public debate to ensure the integrity of the process that we need.

[Lord Bates]

I thank the noble Baroness for her questions, which, as usual, have gone into the detail in some depth. We are grateful for them because it gives us an opportunity to put more information on the record. I am pleased to see the noble Baroness, Lady Lane-Fox, in her place. I would guess that she was caught out by the pace at which the earlier business moved through, like the rest of us, but I hope that we may be able to take her points into consideration as part of an ongoing dialogue.

I shall try to go through the issues in the order in which the noble Baroness raised them. There is no requirement or convention to say that, when there is a public consultation, we should eventually publish all responses to it—for a variety of reasons, not least because sometimes people have given information that they do not wish to be made public. However, as soon as the intervention was made to which she referred, we said immediately that it should be published. We are in the process of going back to the 125 or 126 people—

[Baroness Smith of Basildon]

It was 127.

Asylum Seekers: Mental Health

Debate between Baroness Smith of Basildon and Lord Bates

Monday 10th November 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, it is very hard for any of us to imagine the tragedy and fear that drive somebody to leave their home and travel many miles—thousands of miles in many cases—to seek sanctuary and asylum. They have often suffered considerably. The Minister said that he is concerned about mental health issues. May I ask him two questions? What measures do the Government take to assess someone’s mental health while they are seeking asylum? He also said that it is important to speed up the asylum application process. What evidence does he have that the Government have speeded up that process?

[Lord Bates]

The process is genuinely speeding up. We have given a commitment that everybody who applied before 2012 will have their case decided by the end of this calendar year. Seventy per cent of applications are decided within six months, and 35% of those people are given the right to stay, so there is speed in the system. We have recruited extra people to help. As for mental health needs, that is clearly a clinical decision. When someone is registered with a GP and in contact with the NHS, their condition can be assessed.

European Arrest Warrant

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 29th October 2014 Lords Chamber

[Lord Bates]

The noble Lord is absolutely right. That is why the Government are bringing this forward and seeking urgent agreement on it.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister will be aware of the comments in the letter from the Irish Government expressing their concern that if there is any gap between the Government opting out of the international arrest warrant and opting back in again, that will have serious implications for arresting those involved in terrorism. What response have the Government made to this, and what discussions have they had with other countries which may be expressing similar concerns?

[Lord Bates]

The noble Baroness is absolutely right. That is why we want to ensure that there will be no gap in respect of this, and I am confident that there will not be. Only one country out of the 22 with which we are currently in bilateral negotiations has a concern about this. We believe that that concern can be overcome within a matter of days.

Serious Crime Bill [HL]

Debate between Baroness Smith of Basildon and Lord Bates

Tuesday 28th October 2014 Lords Chamber

[Baroness Smith of Basildon]

My Lords, my noble friend Lord Harris and the noble Baroness, Lady Howe, have undertaken a service to your Lordships’ House by tabling this amendment for debate today. There is no doubt that, alongside the advantages that modern technology brings, it also brings new dangers for children. Looking across your Lordships’ House, I suspect that when any of us went out to play as kids, our parents would tell us, “Careful how you cross the road, and don’t talk to strangers”.

If I am honest, my parents were happiest if they thought that I was safe upstairs in my bedroom with my friends, playing my music or pretending to do my homework. Nowadays, parents have those same fears while the child is at home in their bedroom, on their computer or mobile phone. It is very difficult for parents always to understand or put in the controls that need to be there. The danger has moved; it can now be in the home or in the child’s bedroom. The law has to keep pace with the changes that have come about. The technology has moved, and the law has to move too.

I am very grateful to the NSPCC for what I thought was a very helpful briefing. I also agree with the point that my noble friend Lord Harris made about the “slow burn” of these types of offences. I recall dealing with a case some time ago where there was a man in his 30s, who had a family, who was corresponding with an 11 year-old girl in another country, who thought that she was in contact with another 11 year-old girl. In that case, he was stopped before it went too far, but it is easy to see how over a period of time somebody can believe that the person they are in contact with is someone just like them. It is their friend, whether it is a boyfriend or someone of the same gender. This is the grooming that is referred to.

I will not go into the detail of the legislation, because my noble friend Lord Harris explained that, but I am sure that the Minister’s file covers this area. When he took up his post, he was kind enough to meet me. He thought that I had been a Home Office Minister. I was not; I was a Home Office PPS. Part of my duties as a PPS was to run two paces behind my Minister, clutching the file as he went into Committee. On every page, against an amendment put down by a member of the Opposition was a line which read, “Resist, it is covered by other legislation”. I expect that the noble Lord has a very similar file in front of him today.

I will give the Minister the benefit of my experience on this issue. This came up previously when we were debating the anti-social behaviour Bill in your Lordships’ House. I was brought a proposal from the Manchester police and crime commissioner about how to shut down more quickly premises that have been used for grooming young girls for sex. I was told “We do not have the powers”. I had a letter from Norman Baker, the Home Office Minister which said, “Of course you have the powers; this can be done; you can use the prostitution laws”. How could you use the prostitution laws with an 11 or 12 year-old girl? You could not. However, the advice from the Home Office in correspondence after correspondence was that it was already covered by existing law.

We often hear that it is covered by existing law, but our experience when we see offences being committed, but not being prosecuted, is that the existing law is inadequate. On that occasion we tabled an amendment. The noble Baroness, Lady Hamwee, had the same concerns then as she has expressed today about it not being the right kind of legislation and said that it should be in another Bill. Where there is a will, there is a way. If we really want to address some of these problems, we can. The noble Lord, Lord Taylor, was very helpful on that occasion. I withdrew my amendment. The Government came back with their amendment which we were delighted to support and were very grateful to do so.

There is an opportunity here. The wording may not be perfect; I am sure that the Minister has his note saying, “resist”; but there is an issue here that has to be addressed. Failure to address it now will mean that we lose the opportunity until the next Home Office Bill. I know that they are like double-decker buses sometimes, but we have an opportunity here to bring the law up to date. The law exists in Scotland and is used for prosecutions in Scotland when other laws fail. So here is an opportunity. I hope that the Minister can just put his file to one side and not resist, just until Third Reading, to see whether there is a way forward to address what is becoming a pretty serious problem.

[Lord Bates]

I am tempted by the Baroness’s offer to put my file aside, but I will stick with it a little because, as we have seen through this whole process of discussion in Committee, which she has been following right from the beginning, it is not the case that “resist” is there because it is something that someone just does not want to consider. All the way through, we have seen the openness of officials to have meetings with groups and with Back-Bench Peers. The genuine government amendments that have been brought forward, and the responses, not least today and on other matters, show that we are all very much on the same side on all of the issues, whether it is FGM, mandatory reporting, or indeed this one.

However, there are genuine differences between people in some NGOs about the best way of achieving this. Officials are using their knowledge and expertise of the system to ask whether this is actually something which is going to strengthen our hand. A great forecast was made by the noble Lord, Lord Harris, of what was actually in my speech. I can assure him that I shall not disappoint him in referring to those specific Acts. One reason why I shall not disappoint him is that the Ministry of Justice has met with the NSPCC, as you would expect, and talked to it about its concerns in this area. It has shared its thoughts on the amendment.

I will try to be as helpful as I can, but I need to get some remarks on the record. If the House could bear with me in my responses, I will come back to the specific issues raised. I share the noble Lord’s objective, which is to ensure that we have a robust body of criminal law to tackle predatory sexual behaviour by adults against vulnerable children. The House remains united in its condemnation of the sexual abuse of children, and it is through the work of noble Lords across all parties and none that we have some of the strongest and most respected criminal laws in the world to deal with this dreadful offending.

I thank the National Society for the Prevention of Cruelty to Children, which has proposed this new offence and brought its concerns to this debate. Its efforts, and those of its supporters, have helped to create a tough range of criminal sanctions and provided support to help to protect children. I also thank the NSPCC for engaging in constructive talks with my officials about this new clause. I also mention ChildLine in this context.

The new clause would create a new criminal offence prohibiting an adult from communicating with someone under 16 who they do not reasonably believe to be over 16, or someone who is in fact under 13 years of age, where that communication is sexual or intended to elicit a response that is sexual. The person’s purpose in sending the communication or seeking a response would need to be sexual.

As I said, we have some of the strongest and most robust laws in the world to deal with sexual offences against children. Although we are examining this issue, our preliminary view is that the behaviour targeted by this amendment is already captured under existing law.

I hope that noble Lords will bear with me while I outline some of the existing relevant provisions. If a message is sent by means of a public electronic communications network—that would include the internet—and its content is grossly offensive, indecent, obscene or menacing, it will fall foul of the offence in Section 127 of the Communications Act 2003. Those convicted of this offence who pose a risk of serious sexual harm to the public can be made subject to a sexual offences prevention order. The noble Lord, Lord Harris, mentioned that the situation in Scotland was much better, but in this regard the Communications Act 2003 does not apply to Scotland. It does apply in England and Wales, and there have been 1,314 prosecutions under Section 127 of the Communications Act in 2013 alone. This will cover a range of issues, not the specific ones that he is concerned about, but it is certainly not something that the police feel that they have no opportunity to prosecute under the Communications Act 2003.

I realise that this offence would not apply to non-electronic communication or perhaps private communications networks, but our other laws here are broad enough to capture sexual messages to children in this manner. If the messages, including any sent images, are indecent or grossly offensive, sending them may fall foul of Section 1 of the Malicious Communications Act 1988. I readily acknowledge the point made by my noble friend Lady Benjamin, who talked about 1988 certainly predating the world-wide web in that context, but some of the laws that are in place for offensive materials and activities relating to other media are still relevant to the new media, and we should not just disregard them. They fall foul of the Act provided that they are sent with the purpose of causing distress or anxiety to a person to whom the material is communicated, or intended to be communicated.

Foreign National Offenders

Debate between Baroness Smith of Basildon and Lord Bates

Wednesday 22nd October 2014 Lords Chamber

[Lord Bates]

We will certainly make investigations into that and get the information required, and do as the noble Baroness suggests.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister, who has been very helpful in his answers. But the point that I made in my original question, and was made by the noble Lord, Lord Richard, was about the Schengen information system that the Minister himself referred to as being important and the fact that the Government have not signed up to that; we have been having a debate about opt-in, opt-out again. I repeat the question: does the Minister consider that the Government’s obsession with opting out of EU criminal justice measures has had an impact on tackling this problem, particularly in relation to the Schengen information system that he referred to?

[Lord Bates]

I do not accept that that is the case. We are already, and have been for some time, part of the European criminal information system, which carries a lot of information; in fact, the UK is one of the heaviest users of that system. We now want to strengthen it further and it seems a very sensible step to be part of the Schengen information system as well.

Rape

Debate between Baroness Smith of Basildon and Lord Bates

Tuesday 21st October 2014 Lords Chamber

[Lord Bates]

I am not fully aware of the issue that the noble Baroness raises relating to the Deregulation Bill. I will look into it and report to her today.

[Baroness Smith of Basildon (Lab)]

My Lords, I suggest that the Minister looks quickly, as the vote on that issue will take place this evening. Perhaps he will choose to vote with us. He said that the number of rapes and sexual attacks is increasing, but in fact the percentage of convictions is going down. It is clear that there are serious delays in acting on information in certain sexual crimes. The National Crime Agency tells us that it has evidence of more than 50,000 people downloading abusive pornographic photographs of children, but it is unable to act on them all and will arrest only those—to date around 600—who place children at physical risk. How can the police tell from downloaded photographic images who is more likely to sexually abuse children unless they interview them? Surely the Government have a responsibility to these children to make it a greater priority.

[Lord Bates]

My Lords, it is indeed a top priority of this Government to tackle child exploitation, particularly on the internet. That is why Operation Notarise is under way, and it has resulted in convictions. More needs to be done, particularly in engaging with the industry and finding technical solutions to the problems so that we get the evidence to ensure that people are brought to justice for these serious crimes.