Business of the House

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 25th July 2019 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I wish to raise an issue about the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019. I probably owe an apology to the government Chief Whip, having thought yesterday that I was dragging him to the Dispatch Box for the last time; I had not anticipated doing so again today.

We had a Statement and debate on this issue on Tuesday but having seen today’s report from our Secondary Legislation Scrutiny Committee’s Sub-Committee B, I have to raise serious concerns about process with the Government. We all understand the grave concerns about the policy of managed migration in universal credit and its implications. They are widely shared; the Government lost a major case in the High Court. My point today, although related, is about the constitutional role of Parliament in these issues. I am grateful to the Secondary Legislation Scrutiny Committee for drawing this to the attention of the House.

The original regulations were laid in June last year; they were withdrawn after severe criticism of the Government for prematurely seeking powers, and because they risked pushing vulnerable claimants into hardship. I think we have had two sets of replacement regulations, but the current ones to run the pilot have sat on the Order Paper since January. As affirmative regulations, the Government should have set a date for them to be debated in your Lordships’ House in that time.

On 8 January, the noble Baroness, Lady Buscombe, who was the Minister at that time, said that a debate would happen on the Floor of the House when parliamentary time allowed. Clearly, we have been so busy that there has been no parliamentary time available at all. The other place was also given a commitment that the Government would,

“ensure that the start date for the July 2019 test phase involving 10,000 people is voted on”.—[Official Report, Commons, 8/1/19; col. 175.]

But now the regulations have been withdrawn and new ones have been re-tabled this week, with one change following the High Court judgment. They have been tabled as negative instruments, with no automatic right of debate, in the week when Parliament goes into recess. They are also to be enacted within three days, ignoring the 21-day convention between tabling and enactment. It feels like a belt-and-braces approach to stop any debate taking place.

As the report identifies, the regulations have been around for six months without debate and Parliament will now be denied the opportunity, as promised by Ministers, to debate them before implementation. The regulations will be in operation for nearly six weeks before Parliament returns and can even think about debating them. In terms of the role of Parliament, this is a pretty shoddy state of affairs. The committee describes the Government action as a “tactical ploy”. What would the noble Lord call it?

I apologise, as I thought that there might be a new Chief Whip to whom I could ask this important question today. Will the noble Lord pass on to the new Chief Whip that they need to give a commitment to this, given that the pilot will be in operation before Parliament returns? The results of the pilot and the lessons learned must be debated in both Houses, before any regulations are laid to enable the full rollout of managed migration. We also need a commitment that this will not happen again.

[Lord Taylor of Holbeach (Con)]

The Leader of the Opposition is quite right: new regulations were laid at the beginning of the week. The original regulations could not proceed because of a High Court judgment, as she mentioned. The use of the negative procedure is entirely appropriate for this statutory instrument. This SI does not contain the provisions from the original instrument that called for the affirmative procedure.

However, I am aware that the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee will be scrutinising the new SI in full, in due course. I note that the SLSC published a short information paragraph this morning, stating that a full report on the SI is to follow. Noble Lords should wait until we see what that report says, but the Government are more than happy to facilitate debates on negative SIs. If the Leader of the Opposition, or indeed the noble Baroness, Lady Sherlock, want to come and see me while I am still in my office, I will do my best to see what arrangements can be made. As the House knows, my door is always open and our wish is that the House has every opportunity to debate all negative SIs, where the Opposition deem it appropriate.

[Baroness Smith of Basildon]

I am grateful to the Chief Whip for the usual courtesy with which he has replied, but the message has to go to the new Chief Whip that there are two serious issues here. A debate can be facilitated, but these regulations will take effect over the summer. The 21-day convention has been cast aside and they will be in place. I am not just asking for a debate on these—we know that they are going to take place—but for a commitment to a debate on the outcome of the pilot, before we implement the policy as a whole. Given that we have not been allowed to debate the pilot before it happens, we should at least be allowed to debate it afterwards to see how it impacts the policy as a whole.

Arrangement of Business

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 24th July 2019 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, your Lordships’ House may recall that on 3 July, this House passed a resolution that there should be a Joint Committee of both Houses of Parliament to look into the issues around a no-deal Brexit occurring on 31 October. The idea was that with a new, incoming Prime Minister—as it turns out, one who is quite enthusiastic about no deal—there should be information available to that Prime Minister before any decision is taken; and that the committee should report to both Houses, and publicly, by 30 September. Val Vaz, the shadow leader of the House of Commons, has raised this several times and the then leader of that House—he might not be leader at this moment—was quite optimistic and encouraging in his response. Are the Government able to say today what progress has been made? We have the names ready to submit to the Government because it seems that August is when that committee should meet and do the work that needs to be undertaken.

[Lord Taylor of Holbeach (Con)]

My Lords, the Leader of the Opposition is quite right: on 3 July and following a Division, this House agreed a Motion to appoint such a Joint Committee. I believe that the message that this House sent to the Commons has not yet been considered in the other place. The noble Baroness will readily understand that it is now a matter for the usual channels in the House of Commons. Like the noble Baroness, we stand ready to react to whatever response they may send us.

[Baroness Smith of Basildon]

I am grateful to the Chief Whip for that response—probably. I can tell him that I had a letter from one of the candidates in the Conservative Party leadership election who was not very happy about the idea of a Joint Committee, but that was Jeremy Hunt and he lost, so I was rather hoping that the new Prime Minister might be a little more sympathetic. In his final hours as Chief Whip, might the noble Lord find the opportunity to take the new Prime Minister to task on this issue?

While I raise that, perhaps I may thank him on behalf of the whole House for his service as Chief Whip and in other ministries.

Arrangement of Business

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 4th February 2019 Lords Chamber

[Lord Taylor of Holbeach (Con)]

My Lords, I should like to make a short business statement about our sittings in February. Noble Lords on all sides of the House will have noticed that, last Thursday, the Leader of the House of Commons informed that House that it was no longer the intention for it to have a February recess in the light of the significant decisions taken by that House last Tuesday.

In our House, we have discussed our sitting patterns on the Floor of the House on several occasions in recent months. Noble Lords will be aware that I have always said that I thought it would be necessary for us to sit throughout February. Had the House of Commons decided to proceed with its anticipated February half-term, I would have suggested that we have a long weekend to allow all Members and staff some additional time away.

However, given that the Commons will now sit throughout February, I believe it would be wrong for us to do otherwise. I assure the House that we will have plenty to do in the weeks ahead. Whatever noble Lords’ views on Brexit, I think everyone agrees that we must allow the maximum time for scrutiny, and that is what I propose we do.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Lord the Chief Whip for making the announcement. When he last spoke about this and we pressed him on dates, he said that he was speaking in code and that if we looked at Hansard we might get a better idea. Many of us did, and still had no idea. Perhaps now we understand why. We certainly understand the volume of work that has to be undertaken. If the Government were to rule out no deal as an option—or, as the Prime Minister seems to think, a sword of Damocles if her deal is not accepted—the workload may be slightly less. Of course, we stand ready to play our part.

The Chief Whip will be aware that the business this week in this House is rather light. The House of Commons has risen early on several occasions recently, and there are two Bills currently stalled in the Commons that this House has been waiting for: the Agriculture Bill completed Committee on 20 November, but there is still no date in the other place for either Report or Third Reading; the Fisheries Bill finished Committee on 17 December, and there is no date scheduled for the Commons Report or Third Reading. Both need to be through Parliament by 29 March. The Healthcare (International Arrangements) Bill has its Second Reading tomorrow, but there have been two months between Committee and Report in the Commons. It seems that while we will sit longer to undertake this business, the Commons and the Government have been rather tardy in bringing forward the needed legislation. I assure the Chief Whip that we stand ready to play our part, but we expect the Government to do so as well.

Hereditary Peers By-election

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 23rd January 2019 Lords Chamber

[Baroness Smith of Basildon (Lab)]

Notwithstanding my noble friend Lord Grocott’s comment, I welcome the new Member of the House of Lords, Lord Reay, and we look forward to him playing his full part in our affairs. As much as we welcome an individual Lord, the system has had its day, as my noble friend said. It is increasingly difficult to defend a temporary measure that has gone on beyond its time. While we do not criticise anyone who stands or any noble Lords who vote in such a by-election—or the result—we think a change in the system is long overdue. I know the government programme is very challenging at the moment but debating this tiny little Bill in government time to remove the hereditary Peer by-elections would be very welcome and have overwhelming support in your Lordships’ House.

[Lord Taylor of Holbeach (Con)]

My Lords, we have given a lot of time to this Bill. I have been in discussion with the noble Lord, Lord Grocott, for some time. He knows that, when appropriate, we will try to find time for his Bill to be debated on Report before it can leave this House. I will be in touch with him in due course.

Arrangement of Business

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 23rd January 2019 Lords Chamber

[Lord Taylor of Holbeach (Con)]

My Lords, noble Lords who have been assiduous in looking at the Forthcoming Business will see that there are some dates regarding the Easter Recess. In the first sitting week after Christmas, I gave an undertaking to come back to the House at the earliest opportunity to make an announcement about forthcoming recess dates.

Noble Lords will not need me to remind them that we continue to be in uncharted waters—a point made by the Leader of the Opposition. Therefore, what I say today is highly provisional. Nevertheless, I have been listening to those on all sides of the House who have made it clear that they would welcome some dates, if only on the basis of best intentions. I am happy to be open with the House about these intentions, but the usual caveat about dates being subject to the progress of business has never been so strong.

Eagle-eyed Lords will already have seen from this morning’s edition of the Forthcoming Business that it is my intention that the House should rise for the Easter Recess at the conclusion of business on Thursday 4 April and return on Tuesday 23 April. These dates match the provisional dates indicated for the House of Commons. If possible, I intend to provide for a long weekend in February. I have spoken of this several times, but I continue to anticipate that, next month, the House will need to sit on days when the Commons is not. I will let noble Lords have details of any long weekend very soon, but I hope it is helpful in the meantime to give such notice as I can for the Easter Recess.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Lord the Chief Whip. It is helpful for noble Lords who are trying to plan to ensure that they can play their full part in the work of your Lordships’ House—which we all want to do—to have the dates for the Easter Recess. Can I press him on the February long weekend? We understand that the Government have set themselves a rather challenging timetable, partly—I have to say—through their own incompetence in not bringing legislation forward sooner. If noble Lords wish to take part in the business of your Lordships’ House as much as they can, they need some certainty as to when they need to be here. I find it incredible that we are coming towards the end of January and we are not able to have dates for February. The noble Lord has said “in due course”. If he wishes noble Lords to play a full part in the work of this House, they need some greater certainty about what is happening in the next few weeks.

[Lord Taylor of Holbeach]

I appreciate that question. I understand why the noble Baroness has asked it, but I need to be certain of government business in the middle of February. If you read what I said, you will have a pretty good clue as to when I am telling you it might be. If you will allow me a week to see how business runs, I will come back to the House. The noble Lord, Lord Foulkes, is not here today. He is in Strasbourg. I have no doubt he would be very keen to make sure that we have some time in February for our families.

Arrangement of Business

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 10th December 2018 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I hope the Chief Whip heard that. I think, from listening to the tone of the House, that the House wishes to hear the Prime Minister’s Statement before continuing. I propose to the noble Lord the Lord Speaker that we adjourn the House now until 5.30 pm, when we can hear the Statement, and then there can be discussions between the usual channels on how to proceed. The current position is unsustainable.

[Lord Taylor of Holbeach]

I am sorry, my Lords, I am not prepared to accept that. We have business before the House. We have people who have prepared speeches. As agreed by the usual channels, we are repeating a Statement at 5.30 pm so there will be every opportunity to speak. I am afraid I resist any suggestion that we adjourn during pleasure.

Motion

Moved by

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I thought it would be helpful to the House if, before my noble friend repeats the Prime Minister’s Statement, I said a few words about the rest of today’s business.

The House will have seen the exchanges earlier today about the timings of today’s business, which led to a Division. Since that Division, I have received further strong representations from the opposition parties that they do not want today’s scheduled debate to conclude.

My view has not changed since earlier this afternoon. I believe it would be in the best interests of those signed up to speak today—and of the whole House, which has not heard them—for us to conclude the debate today as advertised. However, I recognise the strength of the representations, and I do not believe that it is in the best interests of the House to have continued procedural Divisions.

I repeat the offer I made in good faith of providing more time for this House to consider the issue further when it returns to the Commons, and I apologise to those noble Lords who have been waiting patiently to make their contributions. We will adjourn the House at the conclusion of the repeat of the Prime Minister’s Statement.

[Baroness Smith of Basildon]

I thank the noble Lord for his courtesy in making that announcement to the House. It is always difficult when the House votes on procedural matters, and his coming before the House today has been very helpful. I am sure that we will have the benefit of hearing the wisdom of those we are denied from hearing today at a later date, and we look forward to that.

Hereditary Peers By-election

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 18th July 2018 Lords Chamber

[Lord Taylor of Holbeach (Con)]

We know the noble Lord’s views on hereditary by-elections. He has a Bill before the House, which the House will consider in September. Meanwhile, he really should know—having been Chief Whip himself—that the whole of the information that he requires is available in the Printed Paper Office. In the Printed Paper Office is the notice of election, which tells him on what day the ballot will take place and on what day the election will be announced. All details of every vote are recorded on the document in the Printed Paper Office. He need only to go to the Printed Paper Office to get all the information he requires. Indeed, he could pick up several copies to give to others who he thinks need to be informed.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Lord the Chief Whip for responding to my noble friend Lord Grocott. He says that this House knows the views of my noble friend. In fact, my noble friend’s view is the view of the majority of your Lordships in this House, who think that the time for these hereditary by-elections has long gone. I do not cast any aspersions on our new Member, whom we shall welcome here. The Chief Whip says that my noble friend’s Bill will come back in September but it is a Private Member’s Bill. Given the overwhelming support in your Lordships’ House, can the Government assist in ensuring that that Bill is sent to the House of Commons for them also to take a view on?

Hereditary Peers By-election

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 4th July 2018 Lords Chamber

[Lord Taylor of Holbeach (Con)]

My Lords, my distinguished predecessor of the office I currently hold will know that there is no Question before the House. He has presented a large shopping list. He has a Bill before the House and he should know that I intend to make provision for further discussion on his Bill sometime in the autumn. I hope that satisfies noble Lords on his particular interest in this matter. I will read Hansard for the specific demands that he makes.

[Baroness Smith of Basildon (Lab)]

My Lords, I do not wish to delay the House and I am grateful for the Chief Whip’s intervention, but he would have heard considerable disquiet from the House about this method of electing new Members of this House. With such a small electorate, it brings this House into disrepute. There is overwhelming support in your Lordships’ House for my noble friend Lord Grocott’s Bill. As well as providing additional time, I ask the Government to support the Bill and ensure its safe passage.

European Union (Withdrawal) Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Baroness Smith of Basildon]

I am slightly puzzled as to why the House would seek to rise at 6.36 pm for a break. The normal time for a dinner break would be around 7.30 pm. I appreciate that we have made swifter progress than anticipated, but it is inappropriate for the House to adjourn at this point. We should continue with the business before us. I am grateful to the usual channels for giving us a dinner break today; that is helpful. However, the normal time of after 7.30 pm would be more appropriate.

[Lord Taylor of Holbeach (Con)]

There is a proposition before the House that we adjourn debate on Report. I took the trouble of having a word with the Opposition Chief Whip in order to ascertain when it would be suitable to have a dinner break, and we felt at that stage that this was the right time. I now realise that circumstances have changed. We had agreed to a sort of dinner break—a gap in proceedings—because previously we found that the evenings were too long. I was asked by both the Opposition Chief Whip and the Liberal Democrat Chief Whip to consider having a break in the evenings, because they thought that proceedings would go better if that were the case. That is not the situation. The proposition before the House is that we should have a dinner break—that we should adjourn the House on Report at this stage—and I feel that we should at least put that to the House.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Chief Whip. It is a very wise and sensible move to have a dinner break during long proceedings—but I am not very hungry yet, and I suspect that other noble Lords might have had a late lunch as well. I appreciate that there is a Motion on the table and I am grateful for his suggestion of a dinner break. I assume that the next group of amendments would take us to around 7.30 pm, which would be a more appropriate time for a break. If he insists on putting this proposition to the House, I would ask noble Lords not to support the Government.

European Union (Notification of Withdrawal) Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Report stage (Hansard): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I think that it would be sensible to hear from the Front Benches now. Perhaps we may hear from the Labour Front Bench and then the Minister.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting and long debate on a short amendment to a short Bill. While I appreciate that the amendment refers to a ratification referendum, in his opening comments the noble Lord, Lord Newby, referred to this being an issue about people being able to change their minds. However, there has been a much broader discussion than just the amendment.

As someone who campaigned strongly to remain, and remains bitterly disappointed at the result, I agree with many of the comments that have been made but I am not sure that they bring much to bear on whether a second referendum is appropriate. The demands for a second referendum started even before the ink was dry on the ballot papers of the first referendum. We know that it is rare for us to have a national referendum. In 1975, the incredible Labour Party leader and Prime Minister, Harold Wilson, held a referendum on whether we should remain in or leave the European Community. I think that I am in a minority in your Lordships’ House, but not alone, in that I was not able to vote in that referendum, being far too young, and the Minister probably could not vote in that referendum either. In 2011, the coalition Government held a referendum on whether to change the voting system where Parliament, via legislation, ceded sovereignty to the public, and in 2016, last year, we had the EU referendum.

There is clearly public interest in the EU because both referenda had high turnouts. It was a little lower in 1975, but no one really thought we were going leave and the margin of difference in favour of retaining EU membership, as the noble Lord, Lord Morgan, reminded us, was significant at 33%. However, last year the polls were so close that it probably encouraged the high turnout of 72%. Yet the referendum on changing the voting system motivated fewer than half of our fellow citizens, just 42%. There was never any real public demand for such a change and to most people it appeared politician led.

When we debated this amendment in Committee, I expressed my natural caution about politicians calling for a referendum on any issue. Usually it is called because we think it will endorse the result that we want. I accept that there have been exceptions today and that some noble Lords have made a case for direct or popular democracy, but the noble Lord, Lord Newby, has made clear what his reasons are for bringing forward this amendment. However, there is clearly a difference in the case of a public demand for a referendum, as we have seen, but politicians have to take care in how we respond to that public demand.

I listened carefully to the noble Lord, Lord Newby, and others, when he opened the debate and I have read his article in the The House Magazine on this issue, in which he was totally honest about his amendment proposing a further referendum. Despite comments from a number of your Lordships that this is merely about giving the public a say on the exit arrangements, he was very clear that he took the view that the public would change their mind. In The House Magazine he said that it would be “implausible” not to grant a second referendum if public opinion shifted in favour of the EU.

However, there is no significant public demand for a second referendum and, at this stage, there is no significant shift in public opinion. This is being seen by many as merely a campaign to challenge the result of the first referendum. That was reinforced last week when the noble Lord spoke about the purpose behind his amendment. That is exactly the point. A second referendum would not be on the deal or the arrangements but yet again on a principle—or, rather, a mood—of how people felt about the EU the last time.

Before the last referendum—indeed, before the last elections—the Liberal Democrats campaigned for what they called a real referendum, an in-out referendum, on principle. They criticised both my party, the Labour Party, and the Conservatives for not going far enough in agreeing with them. I have a copy of their leaflet with me today. It urges people to “Sign our petition today” and says:

“It’s time for a real referendum on Europe”.


However, nowhere in the leaflet calling for this “real referendum” does it say, “But if you do not agree with us we will try and have another one”.

My understanding from those who were there at the time is that the Liberal Democrats considered—this is absolutely crucial—that, although their policy was to have a referendum limited to the Lisbon treaty, their campaign literature should not say it because they felt that it would not be clearly understood and that any referendum would inevitably turn into “Do you like the EU or not?”. I think that is right, because it is what we saw last year. It is also why the noble Lord’s confidence in having a referendum to show that people have changed their minds is flawed, because after two years of what could be very difficult negotiations it could well become a referendum—in effect—on whether we like, or are happy with, our European neighbours.

Data Retention Regulations 2014

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 29th July 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for the care he has taken in going through the detail today and to other noble Lords who have added their comments. I do not think it is necessary to repeat the arguments and debate we had during the passage of the Bill. We recognise, of course, the necessity for retaining data information and when tackling serious and organised crime. We made that clear. The noble Lord, Lord Paddick, referred to our amendments in the other place. We think they improved the legislation and safeguards for the future. A complete review of RIPA was extremely important. We are very grateful that the Government accepted those.

As always, we have to be certain why and how we are collecting information. I think it is also clear that not only is that needed but these regulations were needed. When we had the debates in your Lordships’ House, the Constitution Committee recommended that these regulations did not wait until after the Summer Recess and I am grateful that the Government took that on board. We agreed with the committee and I am glad that the Government did. It makes sense and it is entirely appropriate that we have these regulations before us prior to the Summer Recess.

I have a couple of points that need clarification, if the Minister can help me. I think I am getting slightly confused on the six-monthly review about the roles of the Information Commissioner and the Interception of Communications Commissioner. Can he clarify what the relationship will be between them in undertaking the six-monthly review? Can he also confirm that when they review the legislation, because we have not had the time that we would normally have for consultation on these regulations, they will have the opportunity to review the operation of the regulations as well?

I am grateful to the Minister for making it clear and I think other noble Lords have added their expertise to that. Nothing in these regulations goes beyond the status quo and it is clear the Government have done the minimum necessary in the legislation. However, as he said, there will be further regulations required that extend the safeguards. Something we debated and discussed at some length—with differing views—was access to information. The Minister will recall the comments of the noble Lord, Lord Blencathra, and my noble friend Lord Rooker on this and how important it is that information is used appropriately, as well as the value of it. I know there are further regulations to come. Could the noble Lord say something about when we will see those regulations and what opportunity there will be for consultation on them? Can he also confirm that they will be approved by the affirmative procedure?

We are grateful to the Minister for bringing these regulations before us today before the Summer Recess. They have our support.

[Lord Taylor of Holbeach]

My Lords, I thank noble Lords who have spoken on this. There has been a general welcome for these regulations, as there was for the Bill in general. I appreciate the support of the House in what has been a difficult matter for Parliament to resolve satisfactorily, and I believe it has done that. I say to the noble Baroness, Lady Smith, that the regulations have passed in the House of Commons and so, with their passage through this House today—should that be the will of the House—they will come into force immediately. I am sure that is the wish of the House.

I am very grateful for the welcome given by the noble Lord, Lord Paddick, who knows how important this particular facility is in the pursuit of crime. The noble Lord, Lord Carlile, speaks of course with a great deal of authority on this issue, and I am pleased that he has spoken with his successor, David Anderson, about the impact of these matters. I assure noble Lords that the correspondence which I promised at Second Reading is in the course of being prepared. I hope that it will provide suitable holiday reading for noble Lords when they go.

The Interception of Communications Commissioner has a direct role in these regulations, as noble Lords will know. Following amendments that were tabled in the House of Commons, this was included in the Act. The half-yearly reports mean that the Interception of Communications Commissioner’s functions will include reviewing and reporting to us on a six-monthly basis. That is important. David Anderson, the current independent reviewer of terrorism legislation, will also be undertaking his review of the investigatory effects, the effectiveness of the safeguards and the capabilities. Both of these reports or reviews will provide us with further guidance for considering this matter when we return after a general election. We will consider those reports and, indeed, the report of the Joint Committee that I hope will be set up by any future Parliament so that, when the sunset on the existing Act occurs, on 31 December 2016, there will be a proper succession of this important facility to keep us safe for the future.

[Baroness Smith of Basildon]

I am sorry to interrupt the noble Lord. I asked the question because I thought that, when he spoke, he mentioned the Information Commissioner and not the Interception of Communications Commissioner. I was trying to get to the relationship between each of them when it comes to undertaking the six-monthly review.

[Lord Taylor of Holbeach]

The Information Commissioner has a role, as has been made clear. However, it is a continuing role in investigating this; it is not a question of reports or reviews. The six-monthly review is done by the Interception Commissioner, and the oversight of retained data in respect of security and deletion is a matter for the Information Commissioner. I will repeat that, because I may have got muddled in saying it: the six-monthly review is with the Interception Commissioner, while the oversight of retained data in terms of security, integrity and deletion is with the Information Commissioner. There are two different functions: one is about the review of the process, the other is about a continuing commitment to make sure that information is not retained which should not be retained. I hope I have made that clear; I am sorry for the confusion in making it so.

Motion agreed.

Anti-social Behaviour, Crime and Policing Act 2014 (Consequential Amendments) Order 2014

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 28th July 2014 Grand Committee

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

My Lords, the safe use of legal firearms is a priority for this Government. We remain committed to strengthening the effectiveness of the firearms licensing regime as necessary in order to protect people from harm. We introduced provisions in the Anti-social Behaviour, Crime and Policing Act 2014 to ensure that people with suspended sentences of between three months and three years are prohibited from possessing a firearm. The prohibition includes antique firearms and is for five years from the second day after sentence. We took this action in response to a recommendation which was made by the Home Affairs Committee in 2010. The committee recommended that persons with suspended sentences should be prohibited from possessing firearms in the same way as those who have served custodial sentences are so prohibited. The provision, which amends Section 21 of the Firearms Act 1968, came into effect earlier this month.

It was always the Government’s intention that those individuals prohibited from possessing a firearm by virtue of being subject to a suspended sentence should have the right to apply to a court to remove the prohibition. Unfortunately, this right was not included in the original provision, which is why we are seeking an amendment now. As soon as the legislation is amended, any person affected by the prohibition will be able to apply to the Crown Court, or in Scotland to the sheriff, for its removal. It is therefore important that the provision is implemented in the shortest time possible. I commend the order to the House.

[Baroness Smith of Basildon (Lab)]

My Lords, it feels like only yesterday that we had long and ongoing discussions about the anti-social behaviour Bill, and yet here we are, back already with an amendment to it. Obviously the amendment is necessary and I am grateful to the Minister for his candour in admitting that it was a mistake at the time which needs to be rectified. That is most helpful.

The order is limited, but the Minister will recall the wider discussions we had on this issue when we debated it. I was pleased to hear him say that the Government are committed to improving the system. He knows that we were critical of these clauses, and while we welcomed the changes, we did not think that they went far enough. This order is about the appeal process, which was something that was of concern to us when we looked at the granting of certificates and licences. We were critical of the piecemeal approach to making changes, and he will recall the discussions we had at the time. One of our strongest criticisms around the issue of appeals was in the area of domestic violence. We were disappointed when the Government rejected our amendment to provide that where there was substantiated evidence of a history of domestic violence, there should be a presumption against having a firearms certificate or a shotgun licence unless there are grounds for exemption.

We raised this issue because of evidence presented to the IPCC, and then set out in its report, on the appalling and tragic death of Mrs McGoldrick by Michael Atherton. It was quite clear that one of the reasons that Atherton was able to hold a legal firearm was because of flaws in the decision-making process in that, as the IPCC put it, the fears of an appeal were placed above the evidence of domestic abuse. Given all the problems such as his drinking and his violence, the report also said that his certificates were reviewed and a final warning letter was sent that,

“advised him that any further reports indicating any form of irresponsible or irrational or uncontrollable behaviour would result in the immediate revocation of his certificates”.

They were not taken away then because of the fear about his ability to appeal and now we are discussing appeals again today.

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[Baroness Smith of Basildon]

That is very helpful. Can the Minister assure me that the guidance refers to community resolution, or does it refer just to it not having to be a conviction or caution?

[Lord Taylor of Holbeach]

I cannot categorically say that, but the advice I have is that community resolution would be included. Of course, I am prepared to write to the noble Baroness; it is difficult when we are at the end of a session like this to give proper advice to her.

Each case must be assessed on its merits. I have always said that it is important that police discretion should lie at the bottom of these issues. Evidence of domestic violence will generally indicate that a person should not be permitted to possess a firearm. I say here on the record that that is the Government’s position. We have provided guidance on the updated provisions in a Home Office circular. Authorised professional practice on firearms licensing has been brought in by the College of Policing to complement the Home Office guidance and to ensure consistency and high standards across police firearms licensing departments. Her Majesty’s Inspectorate of Constabulary will also conduct an inspection of firearms licensing departments in early 2015.

I have before me details of some cases which I do not think will necessarily add to the debate this evening, but if I can write to the noble Baroness, I will do so. I could include, for example, the details of the Atherton case and show how that fits into the context of these orders. As we know, domestic violence is already covered by a whole range of criminal offences. The question that I think lies at the heart of the noble Baroness’s challenge is whether there should be specific mention in law of domestic violence. We need to think very carefully about that because the graduation between violence and domestic violence is often a difficult one. The established law provides for the police to prosecute in domestic violence cases.

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[Baroness Smith of Basildon]

I do not wish to detain the Committee and I am particularly grateful for the Minister’s offer to write to me. I know it is difficult; I said to him earlier that I wanted to raise the issue and I am grateful he has allowed me to do so. From what he said there does not seem to be a mile between us on this, but the difference is that we are suggesting that a conviction for domestic violence should lead to a presumption against being able to obtain a weapon. He says that will be covered in guidance, but the IPCC was quite clear that the discretion the police had made them very nervous about rejecting a licence, even in the case of Michael Atherton, because the appeals process can be challenging and is very expensive. I will not pursue it today, but if, when he writes to me, he can look at whether the guidance that now exists would address the failures in the Atherton case, that would be very helpful. I would be grateful if he could do that.

[Lord Taylor of Holbeach]

I thank the noble Baroness for that. It is important to understand that the order we are considering is about an appeal to a court—the Crown Court in the case of England or the Sheriff Court in the case of Scotland. It is important not to conflate that with the police’s view of whether they should grant a licence for another situation where there is suspicion of domestic violence. I understand that the noble Baroness wished to raise it, but it is a slightly different issue. It is important not to conflate the purpose of this order with the broader question of how we tackle domestic violence. I beg to move that the order be considered.

Police and Crime Commissioner Elections (Amendment) (No. 2) Order 2014

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 21st July 2014 Grand Committee

[Lord Taylor of Holbeach]

I thank the noble Lord, Lord Imbert, for his contribution and the noble Baroness, Lady Smith, for her comments. The choice of the date of the by-election is not the Government’s; it does not lie with the Government.

[Baroness Smith of Basildon]

I said at the very beginning of my comments that it had been called by two electors, one of whom I understand is now a member of UKIP. Although he was an independent candidate at the time, I wonder whether he will pop up as a candidate for another party in these elections.

[Lord Taylor of Holbeach]

I am grateful to the noble Baroness for making that clear. Yes, she did say that the by-election was called by two people. All I am saying is that, in law, the Government have no locus in fixing the date of a by-election. The by-election is unwelcome both for political reasons, in the sense that having a by-election in August would not be the choice of any of us who really believe in democracy, and because of the circumstances which led to it; namely, the death of Bob Jones, who was a highly respected figure. Although, rather like the noble Lord, Lord Imbert, he was not entirely in favour of police and crime commissioners, he realised that it was an important job and he did it well.

It is important to address the question of money, because there are two sides to it. If you are going to hold an election, you need to spend the amount of money that it costs to have the clerks and the polling stations open and you need to meet the bare costs of an election. In this case, we estimate the cost to be £3 million. What we are discussing today is the cost of the leaflet and its provision. I understand, as noble Lords have said, that these are difficult times, and the Government are mindful of the need to keep public expenditure under control. However, the balance of advantage in this case is for there to be an informed electorate and the leaflet provides an opportunity for that to be the case. We consider that the leaflet will cost somewhere between £700,000 and £1 million, although we cannot be certain. We know that in certain forces the cost would have been as low as £300,000, but in the largest forces, of which the West Midlands is one, the cost is estimated to be £1 million. The Explanatory Memorandum makes that clear. I hope that there is no suggestion that this is not good value for money, because democracy never comes cheap. Those of us who have been involved in democratic politics all our lives know how important it is that people are engaged in democratic processes.

I should also emphasise that this money is not coming out of police budgets; it is coming out of direct Home Office budgets. Of course, it is funded by the taxpayer, as all government money is, but it is not at the expense of proper policing or the role that we would expect of the police.

I have to say that I did not see the “Panorama” programme; I read things about it but I have not seen it. As I think the noble Lord will understand, I am usually quite busy, not least in the House, and I do not see television during the week at all, so I missed it.

You have only to look at some of the successes that PCCs have brought. Consider the role that Bob Jones played in the West Midlands. The noble Baroness made reference to her former colleague in the Labour Government in the House of Commons, Tony Lloyd, and his role in Manchester. I can talk of Nick Alston in Essex, Adam Simmonds in Northamptonshire or Martin Surl in Gloucestershire. There are so many examples of individuals who have really made something of the job and brought something to effective policing. As someone who, I know, has spent his life extolling the importance of effective policing, I hope that the noble Lord, Lord Imbert, will accept that.

The noble Baroness asked particular questions. She wanted to know about helpline accessibility. We intend to provide the booklets in alternative formats, such as Braille, and provide a helpline for the election. Of course disabled access will be available, because it is required by law at all polling stations. It is unfortunate: 21 August is not the time to hold a by-election. However, the law is the law. We have to have it on 21 August and deal with it, so not all the polling stations will be the normal ones. That is all the more reason why it is important that the electorate is informed in the proper way.

There has been a lot of ribbing about turnout. I shall not estimate the turnout. All I can say is that I am sure that all noble Lords present would want a better turnout at this by-election than the 12%-odd turnout in the West Midlands when we had the first PCC elections. Those elections were held, as the noble Baroness, Lady Smith, said, at a time of year when we do not normally hold elections. Next time round, as she well knows, they will be in May, alongside local government elections. I believe that the opportunity of this by-election—unsought as it is—and this order will inform us about public response to the opportunity to elect their police and crime commissioners and seek to make those elections as effective as possible.

If it is necessary to bring legislation forward in future—secondary legislation, most likely—of course the Government will not hesitate to do that. I hope that we will have the general support of the Opposition in bringing it forward, because I am a little confused as to where they stand on how they are to provide for people to vote for police and crime commissioners in future if they are not fully in favour of the system. It will be interesting over the next few months, when the position will no doubt be clarified.

Data Retention and Investigatory Powers Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 17th July 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I rise briefly because I think that perhaps my noble friend Lord Davies has been misunderstood. I do not think that he doubts for one instant the emergency situation that necessitates this legislation. His argument is that the Government could have acted sooner. I will not enter into a debate as we had a long debate yesterday, but it remains our contention that the Government could have acted sooner on this issue. But there is a time imperative now on this legislation.

[Lord Taylor of Holbeach]

I will not argue with the noble Baroness if she wants to make that judgment of things. The Government have to make decisions for themselves on these issues and they do so in the knowledge of the facts, as the noble Lord, Lord Butler, explained to the House. The Government make judgments at the time as to what is necessary, and in this case they have made the right judgment.

We have had a side-show. I now turn to the substance of the amendment in the name of the noble and learned Lord, Lord Hope. I share his wish to ensure that the new regime for data retention that we are putting in place through the Bill is fully compatible with the European Court of Justice, and that is what we are doing. As I explained at Second Reading, while the EU data retention directive was struck down by the European Court of Justice, the ECJ judgment was about the EU data retention directive. The court did not rule on any member state’s legislation and did not take into account the many safeguards which I explained we have in our domestic regime. Many of the ECJ’s concerns are already addressed by the UK’s domestic legislation. Crucially, the judgment explicitly recognised the importance of data retention in preventing and detecting crime.

Nevertheless, although the UK’s existing data retention regime is already a very strong one, with stringent safeguards and oversight, in order to respond to elements of the judgment, we are extending the existing safeguards in a number of ways. Details of those safeguards are contained in our factsheet on that issue, which is available from the Printed Paper Office. However, I will elaborate on them here.

The regulations made under the Bill will replace the 2009 data retention regulations. They maintain the status quo, while also adding additional safeguards in response to the ECJ judgment. In particular, the regulations set out what must be specified in a data retention notice and factors to be taken into account before giving a notice; place a requirement on the Secretary of State to keep such notices under review; set out the security requirements which apply to data retained under a notice; require providers permanently to delete data when they are no longer under an obligation to retain them; require providers to ensure that data are not disclosed except in accordance with the access procedures in RIPA or a court order; and provide for the Information Commissioner to audit compliance with the requirements of the regulations. A provisional draft of those regulations is also available from the Printed Paper Office.

I am satisfied that with those extra safeguards we are on even stronger ground in asserting that the UK’s data retention regime fully meets the requirements laid down by the ECJ. That judgment does not require us to adopt every single bit of wording in the judgment. On the specific details of this amendment, the test currently in the Bill allows the Home Secretary to consider not just whether it is necessary to require a communication service provider to retain data, but also whether the interference that retention involves is proportionate to that legitimate aim. We believe that that is in accordance with the judgment, which also makes it clear that it is necessary to verify the proportionality of any interference with a person’s rights when requiring the retention of data. The test of necessity and proportionality is a well established legal principle, as the noble and learned Lord well knows, which is already a notable feature of elements of the existing RIPA regime.

I am, as ever, grateful to the noble and learned Lord for sharing his considerable experience and expertise with the House, but I hope he is satisfied that the clause simply seeks to build on those long-standing principles, providing an extended safeguard and appropriately reassuring the public. We have a strong test here, which is fully in the spirit of the court’s judgment. Accordingly, I do not believe that the amendment is necessary, and I invite the noble and learned Lord to withdraw it.

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[Baroness Smith of Basildon]

My Lords, this has been a long and interesting debate. I do not know if my noble friend has had the opportunity to hear the whole debate today, or the debate we had yesterday, but three clear issues came out of yesterday’s debate.

One was the widespread acceptance in your Lordships’ House that there was a gap that had to be plugged as a matter of urgency. There was also deep dissatisfaction—and I think some anger—with the Government’s use of the fast-track procedure. It is unsatisfactory and I think that view came across very clearly in the debate.

There is also deep dissatisfaction with the current situation, whereby we seem to amend our laws on this issue by a sticking-plaster process. The problem comes up and we deal with it now. It was very clear from yesterday’s debate—this was the point made by the noble and learned Lord, Lord Hope—that we must keep pace with the technology, the changes and the information presented to us. We have failed to do so. RIPA, which was passed in 2000, is now hopelessly out of date. We recognise that that needs urgent consideration.

The amendment suggests that we shorten the period in which we may give further consideration to bringing new legislation. The amendment in the other place, which was tabled by my right honourable friend Yvette Cooper is now Clause 7 of the Bill. I am surprised that those who tabled this amendment did not seek to make changes to Clause 7 as well. Clause 7 is crucial in this whole debate and was central to our support for this legislation. Clause 7(3) says that the independent reviewer, a man whom this House has made clear, as it did yesterday, it holds in the highest regard and the deepest respect,

“must, so far as reasonably practicable, complete the review before 1 May 2015”.

The Minister can confirm this or otherwise, but I understand that, following that review, there would be a Joint Committee of both Houses, where Members of your Lordships’ House and the other place with, I hope, a broad range of opinions—I agree entirely with my noble friend Lady Kennedy—will examine the evidence presented by the independent reviewer.

We have two choices. We can start the work now—there should be some issues that we can look at now—but the substance that the independent reviewer will look at I would expect us to examine, take on board and introduce in legislation. Either this is just a sop and we ignore anything the independent reviewer says and get the legislation through earlier, or we take the views of the independent reviewer seriously and ensure that what he says is taken into deep consideration when we are looking at legislation.

One of the comments made was about public confidence and trust. The public have a right to wonder what we are doing when we pass fast-track legislation. We bring this out of the blue, we put it in context and we expect trust on legislation. That is a big ask. That is also why there has to be some public engagement on these issues, as was clear from yesterday and today’s debates, and this forms part of our demands with this legislation. Obviously, there are details of security information that cannot be given to the public, but the public are entitled to a lot more information that is available now and are entitled to know the context in which data are held. Like my noble friend Lord Rooker, I think that when it comes to the private company-held information, as well as public statutory information, the public have a right to know. We have only to click on the internet and look at something, and for days afterwards somebody knows what you have been looking at because it is there every time you go on to Google or look at something else again. We have a duty to engage the public in that. However, that duty will not be done tomorrow or next week. It will be done in the context of the report from the independent reviewer.

The noble Lord, Lord Carlile, made a very important point when he reminded us that the sunset clause will stop. This is not a sunset clause to reintroduce the same legislation. This is to bring in a completely new framework under which we operate on these issues. That is not something that we should take lightly. We can start working but we need the report of the independent reviewer as well.

As much as one looks at an amendment such as this and instinctively thinks we do not need so much time to deal with it, when one examines the issues there is a strong case for bringing in completely new legislation, which needs time to be done properly. The public cannot be reassured if we continue with sticking-plaster legislation and fast-track legislation, which is completely unsatisfactory.

[Lord Taylor of Holbeach]

My Lords, it has been very useful to have this debate. It is our last amendment in Committee and it sums up so much of what we are trying to achieve. I am very grateful to the noble Baroness, Lady Smith, for laying out so clearly the issues that are before the Committee today. It is clear that the Opposition, the Government and coalition partners have been talking about how best to deal with this issue. We have come to the conclusion that replacement legislation for RIPA needs to be properly considered and that we need to look at where we are. We need proper consideration of future legislation. We are also clear that, while we are passing this particular element today, it needs sunsetting—and it needs sunsetting absolutely when its time has expired. However, we would be reckless to try to set a date when we will then prevent the proper operation of the discussion that we all agree is necessary in Parliament, and with the public in the larger world, about this issue.

The Government do not take lightly the requirement for fast-track legislation, but we have taken this forward with the support of the Opposition, and we have included in it an absolute sunset clause, as is right and appropriate. This is so that Parliament can return to the issue after all the other issues have been discussed. Indeed, Parliament must return to it because this sunset clause is absolute and there is no room for its extension.

Noble Lords have queried the requirement for the speed of the legislation. I repeat that we have particular and urgent circumstances. Earlier, I repeated to the noble Lord, Lord Davies of Stamford, things that I had said at Second Reading. He is not in his place at the moment, but he will confirm that I made it clear that there were urgent considerations and that we were on a cliff edge, as the Prime Minister has said. However, the Government understand fully the wish of noble Lords, which has been expressed in almost all debates, to review this area. That is why it is so important that time is allowed for an independent review before the election, hence Clause 7 in the Bill and a Joint Committee review after the election. That is not kicking the can down the road; it is just making sure that when we return to this with legislation, we do so with legislation that has the support of Parliament and has been properly considered. At the same time, it also makes sure that, whoever wins the election, the Government presenting legislation can do so with the public having been fully engaged in the discussion on the issue.

This amendment would change the date when the Bill ceases to have effect and bring it forward to 31 December 2015. While this date is a year later than that proposed in the House of Commons, I do not believe it will give the sort of time that we need for the reasons expressed by the noble Baroness, Lady Smith. The debates that have taken place in this House have made that absolutely clear. While we have no option but to act swiftly now, festina lente is a sensible approach to finding the new solution for the future. The technological changes we are facing—someone pointed to the speech of the noble Baroness, Lady Lane-Fox, yesterday—and the balance between security and liberty, should be looked at with a view to the longer term. We will set up, as I have said, in the Bill a review of the investigatory powers and their regulation to be headed up by the current independent reviewer of terrorism legislation, David Anderson QC. He will report by 1 May 2015, just before the general election. I believe we should be discussing this sort of issue at that time. We need to be realistic. None of us knows who will form the Government after the election. We all have our own views; we sit on opposite sides of the House. However, decisions need be made in the light of information that should be available to Parliament as a whole.

Data Retention and Investigatory Powers Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 17th July 2014 Lords Chamber

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

My Lords, I thank the officials who have supported me during the course of this Bill on behalf of all Members of the House. It has been a testing time for them but they have done it in an exemplary fashion.

[Baroness Smith of Basildon (Lab)]

My Lords, it has been a difficult process on this Bill and I thank the Minister for his customary courtesy in ensuring that we have had access to information and in being prepared to meet with Members across the House. I thank his officials, who have made themselves available to us beyond the call of duty. I also thank the officials of your Lordships’ House, who have had to work in double-quick time on the amendments that have been tabled and have all done so with courtesy and great kindness to Members.

Data Retention and Investigatory Powers Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 16th July 2014 Lords Chamber

[Lord Taylor of Holbeach]

For a start, not only will there be a review of this piece of legislation on a six-monthly basis, something that has been agreed and now forms part of the Bill, but David Anderson, the independent reviewer—that is the very paragraph I was turning to, the noble Lord, Lord Soley, will be delighted to know—will lead a review into these issues. The Bill now provides a clear basis in law for that review. The noble Lord, Lord Blencathra, suggested that Mr Anderson look at his report as a starting point for addressing this sort of issue. That will be available before the election, and will help inform public debate during the election. The wider safeguards and assurances that sit around the Bill are also important. I am glad that noble Lords have taken account of those safeguards, which build on the extensive safeguards that already exist.

However, there are wider issues, and I will do my best to go through some of them at this stage. I am going to demand a lot of my officials, in the sense that I will ask them, to the extent that they are able, before Committee tomorrow morning, to draft a letter which can be circulated to all noble Lords who have participated —if I do not get time, because I am conscious of time.

In a very interesting speech, the noble Lord, Lord Knight, asked whether there was compliance with the European Convention on Human Rights. The Home Secretary and I have signed on the Bill a declaration that it is so. We have also made available the memorandum to the Joint Committee on Human Rights, which explains how our Bill satisfies the ECHR. I hope that that reassures the noble Lord.

The noble Lord, Lord Rosser, asked: what are our plans for the timing of regulations? I understand the interest in that. The draft regulations have been published and we have informed the House that the Government’s intention is to lay the regulations following Royal Assent, so that they can be approved by both Houses of Parliament prior to recess. They have, of course, already been published, as I said, and we are liaising with both the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, ably chaired by my noble friend Lord Goodlad, to ensure that they can consider these matters as soon as possible. The JCSI will meet on Monday to consider the regulations, so that the Commons can debate them prior to recess.

The noble Lord, Lord Strasburger, asked why the measures were not part of the Queen’s Speech. When the gracious Speech was written, our response had not been finalised. The noble Baroness, Lady Smith, asked why it did not form part of the Serious Crime Bill, which she and I are seeing through this House and has finished in Committee. As she knows, we will not return to Report until October. The difficulty of the timetable for that Bill means that it will not be through all its stages before the new year, if we are lucky.

[Baroness Smith of Basildon]

My Lords, the Minister has given answers to a lot of the questions that have been raised, but I said, when I talked about introducing the provisions at the same time as the Serious Crime Bill, that although these provisions may have had to be taken more quickly than the rest of the Bill, it is still the view of most Members of your Lordships’ House that these provisions could have been brought in sooner.

[Lord Taylor of Holbeach]

My Lords, I do not think that the Government consider that that was a satisfactory way to deal with the problem.

The noble Lord, Lord Davies of Stamford, asked why the Intelligence and Security Committee did not have time to report on the Bill. I note the noble Lord’s concern on that, but I draw his attention to remarks in the Commons yesterday by the chairman of the committee, Sir Malcolm Rifkind. He said:

“The Intelligence and Security Committee has considered the Bill, and we have taken evidence from the intelligence agencies on its content. If we were concerned in any way that the Bill simply added to the powers available to the Government and that they were using a fast-track procedure to implement it, we would not be able to recommend its endorsement, but we are satisfied that that is not the case”.—[Official Report, Commons, 15/7/14; col. 725.]

Noble Lords should bear that in mind.

Serious Crime Bill [HL]

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 8th July 2014 Lords Chamber

[Lord Taylor of Holbeach]

Cybercrime is the use of computers—indeed, I may have it here. I have the Serious and Organised Crime Strategy, which uses the term. Cybercrime is the use of computers and electronic systems to commit a crime. Clearly, what happened to the noble Lord’s charity is a crime, committed extraterritorially. One of the aspects of cybercrime is that it is not globally isolated to particular territories or countries—hence the debates that we have been having on this particular issue. That is why we need to tackle it globally and why we need to be globally active in order to deal with it.

I believe that the clauses in this area are designed specifically to bring the Computer Misuse Act, which is what lies at the bottom of it, up to date, to recognise the threat that can exist from computer crime and particularly nowadays, when electronic use is so much greater than it was in 1990, when the Act was first brought in.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for his explanations and response to the debate and, indeed, grateful to those noble Lords who supported and spoke to my amendment. I am also grateful to the noble Lord for allowing a more wide-ranging discussion, although it may not have been technically correct. I quite like the idea that on the fourth anniversary of my introduction to your Lordships’ House I have created a new form of amendment, as the noble Lord put it.

As the noble Lord said, the question on the definition of cybercrime from the noble Lord, Lord Swinfen, was particularly appropriate. In this debate we have hit the nail on the head of how wide and vast this issue is. At one level we have the very big issues of national security and the resilience of our national infrastructure, which could be attacked by cybercrime. Then there are the issues around business security, with charities and organisations that can be affected by cybercrime. Then we come to the personal, which goes from merely inconvenient to causing misery and tragedy. All those things are encompassed in the term cybercrime.

The noble Lord’s explanation of what the Government are doing was very helpful. I do not see that any of that detracts from my amendment or makes it any less relevant. I remind the noble Lord of the point I made at the beginning: only three police forces—Derbyshire, Lincolnshire and West Midlands—have developed comprehensive cybercrime strategies. Only 15 forces considered cybercrime threats in their strategic threat and risk assessment. I do not doubt that at a national level a lot of work is going on and that it is well funded. However, it seems to me that if the annual report of the police and the police and crime commissioners focused on this issue and identified the work that was being done on it, that would let the public know what is going on and create awareness of this matter. The point made by the noble Lord, Lord Phillips of Sudbury, is absolutely right: this would be a way of monitoring implementation and enforcement. I do not see that anything the Minister said detracts from the usefulness of Amendment 31K.

[Lord Taylor of Holbeach]

If I felt that it could be useful, I would take a slightly different approach towards it. I hope that the noble Baroness will read what I said about the efforts being made to ensure that police forces take proper account of this issue. The HMIC report was a wake-up call: it made us realise that, for all the progress we have made in the National Crime Agency and the National Cyber Crime Unit, we also need a local presence on the ground and the involvement of local police forces.

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[Lord Taylor of Holbeach]

My Lords, as the noble Baroness, Lady Smith of Basildon, said, Clause 41 creates a new offence of participating in the activities of an organised crime group. I am pleased that she and my noble friend Lady Hamwee welcomed the general principles that underline this measure.

I think that we would all accept that, for far too long, many of those who take part in organised crime have been able to remain out of the reach of law enforcement. As we set out in the Serious and Organised Crime Strategy in October 2013, we are committed to doing everything we can to pursue them. The new participation offence complements the existing offence of conspiracy, which is central to the majority of law enforcement investigations into organised crime and will remain so. As noble Lords will be aware, conspiracy is used to prosecute two or more individuals who have agreed to commit an offence where the agreement can be evidenced and where the individuals intended the offence to be committed or knew that it would be.

In practice, there are a range of players in many criminal enterprises. “Conspiracy” is used to target the major players who commit the offence or who are fully aware of it and their contribution to it. The participation offence will ensure that there is an appropriate and proportionate sanction for those others who “oil the wheels” of organised crime, who deliberately ask no questions and who then rely on the defence that they were not part of the overarching conspiracy.

The participation offence is therefore complementary to “conspiracy” and can form the second tier of such an investigation. It will be triable only on indictment, with a maximum sentence of five years’ imprisonment. It will ensure that we can prosecute effectively the full spectrum of those engaged in organised crime.

Perhaps I may turn to the anxieties which noble Lords expressed about the way in which we have constructed the clause. Both the noble Baroness, Lady Smith, and my noble friend Lady Hamwee pointed to a number of concerns about the offence that have been raised by both the Law Society and the Institute of Chartered Accountants in England and Wales. As was pointed out, I had said that I hoped to meet those organisations and, since Second Reading, I have been able to meet representatives of both. We had positive and useful discussions about a number of issues. I am pleased to say that those discussions are continuing with officials at the Home Office; we see this as a continuing dialogue.

One of the concerns raised was that the participation offence risks extending the reach of the criminal law too far, and as a result capturing the naive or unwitting; or catching individuals where the “facts” seem more firmly grounded with hindsight than they might have done at the time; or creating anxiety among people that they might inadvertently be captured by the offence. There is a tension between defining an offence that addresses the broad range of activity that sustains organised crime and avoiding inadvertently capturing activities innocently carried out. Noble Lords have pointed to that in their contributions. I believe that Clause 41 gets this balance broadly right.

First, the offence requires a person to have actively participated in or facilitated the criminal activity in some way. To which end, I understand why my noble friend proposed Amendment 31M, which would insert text to emphasise this point. However, it may exclude the possibility that an omission or failure to act would be captured by the offence if it were both deliberate and arose for the purposes of furthering the criminal activities of an organised crime group.

Secondly, an organised crime group must consist of at least three persons. Amendment 31S would seek to remove this stipulation, but I put it to my noble friend that this definition reflects the definition set out in the United Nations Convention Against Transnational Organised Crime. Thirdly, the group must be committing offences carrying a sentence of seven years’ imprisonment or more. This threshold was adopted to catch typical organised crime group activities—for example, blackmail, trafficking in class A or class B drugs, people trafficking, assisting unlawful immigration fraud and theft.

Finally, the effect of subsection (2) of Clause 41 is to define the circumstances in which a person could be considered to be participating in an organised crime group in support of the offence outlined in subsection (1) of the clause. The definition has been drawn so as to capture those persons who know, or have reasonable cause to suspect, that their activities are criminal activities of an organised crime group or will help an organised crime group to carry on such activities. A “reasonable cause to suspect” must be firmly targeted on specific facts, and it will of course have to be proved by the prosecution beyond all reasonable doubt.

My noble friend Lady Hamwee highlighted the concern that local authorities could be unwittingly caught by the same offence. However, it is possible to envisage a number of scenarios where this offence could be of significant benefit to local authorities—or, indeed, banks or other businesses, since it goes beyond the professions. It would provide an appropriate and robust sanction against corrupt insiders: for example, where a bank employee steals customer data and supplies it to organised criminals; or where a local council employee receives corrupt payments to facilitate organised crime.

It is also worth repeating that for the participation offence to be committed, a person must have had reasonable cause to suspect, firmly grounded and targeted on facts, as I have said. If those facts are present, the granting of licences, for example, should not happen. Licences should not be granted if there is reasonable cause to suspect, or knowledge. Any prosecution would also need to prove that the person actively participated in or facilitated the criminal activity in some way. That test may not be met in the letting of contracts for the provision of services to a local authority. As a further safeguard, the Crown Prosecution Service must be satisfied that any prosecution would be in the public interest. I want to take this up further with the Local Government Association because I think that some of its anxieties are unfounded, but I want to be certain that we are reading this correctly in this respect.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. That is very helpful. I have just two questions. First, may I give him the list that the LGA provided to me and ask him to comment on it in writing to noble Lords? That would be helpful. Secondly, in the case that he mentioned of offences where somebody within an organisation is passing information or money out to an organised crime gang, would they not be offences already; or does this create a new offence, or just greater penalties? I would have thought that those kinds of activities would be offences already, perhaps under conspiracy.

[Lord Taylor of Holbeach]

Yes, they could be if they were seen as integral to the conspiracy. However, the whole concept of a participatory offence is the arm’s-length connection that there sometimes has been, which has made conspiracy an aspect of the law that is not particularly easy to use. By creating a participatory offence, we would make those connections with criminality that much easier to establish and, indeed, would cut off the support that organised crime groups have frequently had from insiders who have provided them with assistance. As I said, I hope to talk to the Local Government Association about its anxieties. I would be grateful if the noble Baroness let me have a copy of the particular things that she was concerned about and I will do my best to answer them in correspondence. I will make sure that other noble Lords and the Library are made aware of that, too.

--- Later in debate ---

[Lord Taylor of Holbeach]

Right at the beginning of my speech, I talked about balance. I said that I thought we have got the balance in Clause 41 just about right. We do not want to upset the balance. We want to reassure people, particularly the professional groups that have been to see us and the Local Government Association, that that balance can be made to work for them. If it means that we come back on Report with some ideas on that, I am sure the House will welcome them because generally the House understands exactly where the Government are on this issue. Even though probing questions have been asked by my noble friend and the noble Lord and the noble Baroness, I understand that underlying them is their support for this participation offence and that they want to make it work.

[Baroness Smith of Basildon]

I want to raise a point on Amendment 31T. The Minister rejected the idea of a defence if a potential offence is suspected and reported. For example, under the Proceeds of Crime Act, a potential offence can be reported to the financial investigation unit. That is a defence, but not a guarantee, against prosecution. My concern is that one of the reasons that that defence is in the legislation is so that those who uncover what they believe may be illegal activity are not deterred from reporting it to the relevant authority. It is very useful information. Has the Minister considered whether it will have a deterrent effect if somebody working for somebody discovers some way down the line that there may be criminal activity? Does he consider that they may fear reporting it if there is no defence for them to be gained by reporting it? When the Minister meets the professional associations concerned, will he discuss the processes by which they will establish due diligence to see whether there are any additional costs involved that they can outline to him?

[Lord Taylor of Holbeach]

Our discussions went into that area. We discussed how these matters would be considered by them. The noble Baroness will appreciate that as we want to encourage people to report suspicions as soon as they have grounds to suspect, even more so if they know, they should have every incentive to report the matter. However, one would not want to create a general defence that would enable somebody to have, in effect, a “get out of jail free” card so that when things got a bit hot, they were automatically able to create immunity for themselves against prosecution. I am not convinced by the argument that where we are is wrong. We want to talk to professional organisations because we see how important it is to have them on side in the fight against crime. I know from what they have said to us that they are approaching this issue in exactly that way. They want to make sure that their professions are supportive in the fight against crime, and that any within their professions who are not pursuing that objective but are assisting crime are punished.

--- Later in debate ---

[Baroness Smith of Basildon]

I had intended to speak in this debate. The noble Lord was uncharacteristically quick off his feet to respond to my noble friend. This clause requires some clarification and I am sorry that he seems quite upset about the probing questions that have been asked. I will listen to what he has to say. If the issues I intended to ask him about are not addressed, I will come back to him at the end of his comments, but there are some points of clarification that would be helpful in this debate.

[Lord Taylor of Holbeach]

I am sorry, I just felt that the closing remarks of the noble Lord, Lord Howarth, when he said that government policy lacked coherence in this area, were belied by the contribution that I had made in the previous debate on the amendment moved by the noble Baroness, Lady Meacher.

Serious Crime Bill [HL]

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 2nd July 2014 Lords Chamber

[Baroness Smith of Basildon]

My understanding is that it would require that information, because it asks for,

“his or her assets and liabilities”.

However, if there is any deficiency in the wording I would be happy to see an amendment tabled to make that point even clearer.

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

My Lords, I was expecting that we might have a longer debate on this issue—but it is good to see that there is much agreement about the need to strengthen the effectiveness of the Proceeds of Crime Act. It is good that the noble Baroness, Lady Smith of Basildon, shares the Government’s views on that necessity, and I welcome her speech.

As we have heard, Clauses 1 and 2, and Amendments 8, 13 and 14, all deal with the determination by a court of the extent of a defendant’s interest in named property. By extension, the provisions also deal with any third-party interests in the relevant property. The Serious and Organised Crime Strategy sets out a number of proposals to strengthen the Proceeds of Crime Act by, among other things, ensuring that criminal assets cannot be hidden with spouses, associates or other third parties.

Confiscation orders are the principal method used by law enforcement agencies for the recovery of the proceeds of crime. It is open to the defendant to pay off the order from whatever assets he or she has available. A confiscation order specifies the amount to be paid; it does not itemise particular assets that are to be forfeited. Third parties making claims on assets that are part of the available amount can delay satisfaction of confiscation orders. These claims also reduce the amount of money available for recovery, as the noble Baroness said. Of course, some of these claims may be perfectly legitimate but others will be spurious, designed simply to frustrate the confiscation process.

To tackle such abuses, which were clearly described by the noble Baroness, Lady Smith, and to help speed up the confiscation process, Clause 1 confers on the court a power to make a determination as to the extent of the defendant’s interest in particular property at the confiscation hearing. Currently, any claims on property are dealt with at the enforcement stage, which can complicate, lengthen and impede the confiscation process. Clause 2 augments the provisions in Clause 1 by introducing a requirement, as part of the confiscation process, for the prosecutor and defendant to detail any known third-party interest in property associated with the defendant in their statement of information and provision of information respectively.

Amendments 8, 13 and 14, tabled by the noble Baroness, seek to bring the determination of third-party interests forward in time even further to the commencement of a criminal investigation or to the point at which a restraint order is made. The amendments also seek to impose on the defendant the obligation to disclose the extent and location of their assets and any third-party interests in those assets. Under Amendment 8, a failure fully to comply would be a criminal offence.

To protect legitimate third-party interests, the provisions in the Bill afford third parties who have, or may have, an interest in the property the right to make representations to the court about the extent of their interest. The right to make representations also extends to the defendant. This will allow the court to consider the evidence presented, assess its credibility and come to a decision.

There are currently no express provisions for the court to deal with any third-party interests in any of the property that the court takes into account when determining the amount of a confiscation order. The legislation does, however, make provision for third parties to make representations where they have been affected by a restraint order. Third parties also have the right to make representations when an enforcement receiver is appointed by the court. Enabling a court to make a determination on a defendant’s interest in property at the earlier confiscation stage will strengthen the operation of the asset recovery process by closing loopholes in the Act that allow third parties to delay the confiscation process.

We do not consider that it is appropriate to bring the determination of third-party interests back to the restraint stage or, indeed, earlier, as is proposed in the noble Baroness’s amendments. Not all defendants will be made subject to a restraint order. For example, where a defendant owns only a house in the UK, it may not be cost-effective to apply for a restraint order when it can take time to sell a house. The relevant law enforcement agency would be made aware of any attempt to sell the property without the need for a restraint order.

Moreover, not all restraint orders lead to confiscation orders. If the subject of a restraint order is not convicted, the restraint order will be discharged. In such cases, it would be a wasteful use of limited judicial and prosecutorial resources to require the court to make a determination as to third-party interests in restrained property. It is for these reasons that the Bill provides for third-party claims to be considered at the confiscation hearing stage.

None the less, third parties may have an interest in restrained assets, and in such cases it would be appropriate for the court to be able to assess such claims—for example, if a third party contests a restraint order on the grounds that it is freezing property wholly owned by that person rather than by the defendant. Therefore, on the face of it Amendment 13 might be beneficial, in that it would confer a power for the court to order the defendant to provide information at any time under a restraint order.

Specifically, the court would be able to require the defendant to provide details of any third-party interests in property. However, this power is already available to the court under the existing restraint order provisions. The court can make any order it believes is appropriate to ensure that a restraint order is effective. This would include a power to order the defendant to provide information, including information concerning his or her and any third-party interest in property. It can be done at restraint order stage. Where a restraint order is not in place, a defendant can be made subject to the provisions of a disclosure order under the investigation powers that are in Part 8 of POCA. Such an order can be made at the start of a confiscation investigation and compel a defendant to answer questions or disclose information specified in the notice.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2014

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 19th June 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I thank the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Harris of Haringey, for their speeches and their support of the Government bringing forward the order. They are quite right to challenge; that is why we have these debates. However, this is very much a cross-party issue; indeed, the legislation under which we are dealing with these matters was introduced by the previous Government. The truth is that both the Home Secretary and I, and I believe the House, strongly believe that ISIL, THKP-C, KaK, AAB and PFLP-GC—I will get these initials right in the end; your Lordships can tell that I am slightly word-blind—should be added to the list of proscribed organisations in Schedule 2.

There were some usual useful challenges and it is good that we should discuss them. The noble Lord, Lord Harris, asked what proscription does. It effectively outlaws listed organisations, as I said in my speech. It stops people belonging to an organisation from arranging any sort of meeting supporting it—in other words, meeting in any numbers at all—and wearing clothing or any identifying articles that can be considered to show support for that organisation. In other words, it makes it difficult for such an organisation to prosper in this country.

Our priority is to make it difficult for these organisations to survive in this country. It sends a strong message that terrorist organisations are not tolerated in the UK and deters them operating here. It is a valuable tool as it supports other disruptive activities, including immigration disruptions, prosecution for other offences, messaging and EU asset freezes. The assets of a terrorist organisation are terrorist property and therefore are liable to be seized. That is an important aspect when one thinks of the funds that have been available to some of these organisations.

The noble Lord asked whether these organisations have members and whether they are card-carrying members. No. The criminal offence requires that a person belongs to or professes to belong to a proscribed organisation. It does not require a subscription to have been paid in the way that we are members of our parties. It is a different sort of membership, but it is with a serious purpose in mind. The Section 13 offence is of wearing clothing in such a way or in such circumstances as to arouse a reasonable suspicion that a person is a member. Whether somebody is prosecuted will depend on the circumstances, but if, for example, a person wears a badge with the insignia on it it would constitute an offence, so it effectively bans the wearing of the insignia of an organisation.

While understanding the reason why these organisations are being banned, the noble Baroness asked whether, given the fact that in February al-Qaeda announced that it was severing its links with this group, there was an interim period with a security risk. The fact that a group is not proscribed does not prevent the police or the Crown Prosecution Service taking action against an individual for terrorist offences. The fact that a group is not proscribed does not prevent other disruptive activity, including these powers that I have talked of. None the less, it is quite clear that the two organisations are now separate and, indeed, in conflict with each other, and it is right that we should therefore ban ISIL.

Section 3(6) of the Terrorism Act 2000 allows the Home Secretary by order subject to the negative procedure to specify an alternative name for an organisation to deal with these matters. The listing of proscribed organisations is kept under review, including whether they are operating under any aliases. This is why, following review, the Home Secretary decided specifically to ban ISIL under Section 3 of the Terrorism Act. This provides an effective mechanism for dealing with organisations which, as the noble Baroness will know, splinter all the time and when actual membership is difficult to prove for exactly the reasons that the noble Lord, Lord Harris, provided.

[Baroness Smith of Basildon]

I am grateful to the Minister. I think he has confirmed my understanding, but I hoped I was wrong. In the letter he sent to me he pointed out that ISIL is designated as a terror group in Canada and Australia and as an alias of al-Qaeda in the US, New Zealand and the UN. It seems that there is a mechanism so, as groups splinter off, action is taken to deal with them. What he appears to be saying is that we have to take separate action once a group splinters and that there was a gap when ISIL was not proscribed. Even though it was known to be part of al-Qaeda, it was covered only by the order affecting al-Qaeda.

[Lord Taylor of Holbeach]

Action would have been taken against any individuals who were involved in ISIL’s activities under the proscription of al-Qaeda. This has been specifically mentioned today because we wish to make it clear that that organisation is proscribed and that the full force of the law, through anti-terrorism measures, can therefore be levelled against that body.

The noble Baroness was quite right to mention Prevent, which is an important part of the anti-terrorism measures. The police’s Counter Terrorism Internet Referral Unit has taken down 34,000 pieces of unlawful terrorist-related content which encourage or glorify acts of terrorism, of which 15,000 have come down since the extremism taskforce concluded in 2013. Through proposals from the extremism taskforce, as announced by the Prime Minister in December, we want to further restrict access to terrorist material which is hosted overseas and to identify other harmful extremist content to be included in filters. The police also have comprehensive powers to take action against people who spread hatred and incite violence.

To counter the messages of those who are attempting to recruit fighters to Syria and Iraq, we produce community-wide messages that aim to raise awareness of the risks of travelling and directly target the motivation for travel. We also provide tailored advice for those who are actively considering travel before their plans develop. I repeat that people intending to travel to Syria, as well as returnees, are actively considered for Prevent interventions. We do not recommend travel to Syria.

I conclude by saying that proscription is based on clear evidence that an organisation is concerned in terrorism. We need that evidence in order to make a proscription order and there is a process laid down in law which we are rightly required to follow. It is not targeted at any particular faith or social grouping. It is my and the Home Secretary’s firm opinion that, on the basis of the available evidence, all five groups named in the order meet the statutory test for proscription. It is appropriate in each case for the Home Secretary to exercise her discretion to proscribe these groups.

Proscribing these groups linked to the conflict in Syria demonstrates our condemnation of their activities and our support for the efforts of members of the international community in tackling terrorism. Proscribing them will also enable the police to carry out disruptive action against their supporters in the UK and to ensure that they cannot operate here. For that reason, I commend this order to the House.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 12th May 2014 Lords Chamber

[Lord Taylor of Holbeach]

I am sure that the Home Secretary will not exercise powers, which are clearly very important powers, carelessly or in any way that would damage the interests of the United Kingdom. I can assure the noble Lord that all such factors will be considered by the Home Secretary when she considers the question of deprivation.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for the time he has taken and the effort he has made to address the points that have been raised in the debate. I concur entirely with his remarks about internal and international security. Obviously, the first duty of any Government is to keep their citizens safe and secure at all times. There has to be consideration of those issues when they are brought before your Lordships’ House. I can assure him that our consideration of these issues has at its heart the security of this nation and our international obligations to tackle terrorism. As the noble Lord said, I am grateful to all those who have spoken in this debate. We have benefited from substantial legal expertise. I am grateful to my noble friend Lady Lister for confessing that, like the Minister and me, she is not a lawyer. It is significant that even with the legal expertise in your Lordships’ House there is no complete agreement among lawyers, either. We made that point earlier.

I welcome the fact that the Government have moved away from the position that they took previously when the issue was debated in Committee and on Report. I welcome the answers given by the Minister. A lot of the debate hinges on one particular issue. I am grateful for the advice given to me by the noble Lord, Lord Pannick, in the conversations we have had. One of his questions summed up clearly the issue of the power to take away British citizenship if it relies on a discretionary power of another state. The noble Lord was very honest in his response to that. We have no power to know what another state will do. Other states have discretionary powers on whether to make people citizens.

The Government’s Motion rests on whether somebody is able to obtain citizenship. It hangs on the interpretation of that. We have concerns in that we want to avoid at all costs somebody becoming stateless—the evil of statelessness via the Supreme Court—and the dangers that that would bring to citizens of this country and abroad. I mentioned that James Brokenshire, the Minister in the other place, gave three different interpretations of what being able to obtain other citizenship could mean. If somebody is unable to obtain another citizenship and they remain stateless, at what point would the Home Secretary have to say, “We have a problem; this person does not have citizenship of any country”? There is a danger in leaving somebody abroad who we think is a danger to this country and involved in terrorism, who is stateless in another country or who remains in this country and cannot travel.

The noble Lord, Lord Lester, said that the intention was that those who are dangerous should leave—but they cannot do so if they have not got citizenship of any other country. The noble Lord also made the point that our position has changed. I can assure him that our position has not changed. These are the very same issues we raised in Committee and on Report, and we wanted to consider them in the light of the changes that the Government have made.

We have to consider the practical and diplomatic implications here. I know the Minister says that there is no need to discuss this issue with other countries, but he was not even able to confirm to your Lordships’ House that, if we remove citizenship from an individual who we suspect of being involved in terrorist activity while they are in another country, we would notify the Government of that country that we were doing so. That seems to be a rather irresponsible attitude and I worry that we will be passing the problems of terrorism on to other countries when international co-operation is so essential.

I do not wish to detain the House. We have had an interesting and worthy debate on this issue. What the Government have not been able to do, however, is rule out the possibility that we will make people who could be highly dangerous stateless. All it requires is that the Home Secretary must have reasonable grounds for believing that an individual can obtain other citizenship—but if those grounds are wrong and the individual cannot do so, we do not know what will happen to that individual.

The point was made when we debated this previously that we are not saying to the Government, “No, this must not happen”, but that there are still a number of questions which remain unanswered even at this late stage. They include the issue of what happens to someone when they have been rendered stateless and what the implications are for our relationships with other countries. The noble Lord, Lord Pannick, gave examples, and I am not sure that the Minister’s answer was that someone could not be made stateless.

Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2014

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 12th May 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I welcome this further opportunity to set out the Government’s approach, which allows me to focus, in particular, on the activities to support the successful implementation of the ban on khat. That has lain at the heart of concerns raised by noble Lords, which I take seriously. I am reassured that the points raised in today’s debate are nearly all matters that were taken into account in the early stages of our decision-making when we considered our response to the issues associated with this drug.

The noble Baroness, Lady Hamwee, and the noble Lord, Lord Rea, asked what new figures we had on this drug. The new evidence, including reports from law enforcement agencies, emerged after the ACMD published its report and the Dutch banned khat in January 2013. It pointed to an increase in the volume of khat in transit via the UK to European countries where it is banned. The latest update for the first three months of this year shows that 17 seizures of khat—with a combined net weight of over 11.5 tonnes—originating in the UK were made in France en route to other countries where it is banned, including Denmark, Germany, Belgium and the Netherlands. This is evidence that this country is becoming a substantial hub for this material.

Before I address the particular concerns of the noble Baroness, Lady Smith—

[Baroness Smith of Basildon]

The Minister has given helpful figures, but can he give comparative figures on how the situation has changed over time? The premise is that if seizures of illegal imports are up, they must be up against another figure. I made this point in Committee; we had figures but not comparative ones.

[Lord Taylor of Holbeach]

I do not have those figures to hand. I think the noble Baroness will understand that, if this material is arriving here to be distributed to other countries, as I have illustrated, it confirms the view that this country is serving as a distribution hub in a way that would not have happened before those countries banned its use. That is the point which the Government have had to consider. The noble Baroness came to see us and we had a good and useful meeting, talking about issues that concern her. I will address these but I would like to consider the points made by other speakers first.

My noble friend Lady Hamwee wanted to know what the Somali network’s report had to say. An important aspect of this is that, according to testimony given by community leaders and mothers, several areas of a person’s life can be affected by khat use. Disagreements and frustration over drug use can cause family arguments and affect personal relationships; legal and health problems associated with khat use add to the strain on personal, financial and work relationships; and chewers of khat tend to be more inward looking rather than reaching out to others, fuelling further segregation. In other words, it can be anti-social in its impact.

The noble Baroness, Lady Meacher, rang me this morning to advise me that she wanted some assurances on this issue. I cannot give her the assurances that she is seeking but I can, at least, explain the Government’s thinking. She asked what the ACMD thought of our decision to control khat. The ACMD acknowledged the lack of robust evidence on whether khat caused medical or social harm. It understood that the scope of issues that the Government will take into account to make a decision on drug control would go beyond the remit of the committee itself. Before the decision was publicly announced, the Government discussed it with the chairman of ACMD, who accepted that we came to a different view on this occasion, based on consideration of the wider issues beyond those that were the immediate responsibility of ACMD.

The noble Baroness asked about temporary bans. They form part of the Police Reform and Social Responsibility Act 2011 but they are very different. Temporary class drug orders were introduced as a swift legislative tool to tackle the fast-paced emergence in the UK of psychoactive substances or so-called “legal highs”. I have debated these with the noble Baroness on other occasions. In essence, they are used where there is an urgent or significant threat to public safety or health. There is often very little evidence of the harm these drugs do, for the simple reason that they have been available only for a matter of months, if not weeks. Under a temporary class drug order, the advisory council has just 20 working days to advise and only looks at medical harms. Temporary bans are the exception, not the rule, and only last for 12 months. Khat is not a new drug where such swift, temporary action is demanded.

The role of advisors is to advise—

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, as on many other occasions, I am grateful to the Minister for the time and care he takes in responding to issues raised in debate. I hope he understands that the only contributions made in your Lordships’ House today have expressed concerns about the Government’s actions regarding the ban on this drug. Our concern is that, with a decision as finely balanced as the Minister said, how it is implemented is very important.

I was somewhat surprised at the uncharacteristically ungenerous comments made by the noble Baroness, Lady Hamwee. She said we were looking for something to do. I find that a curious expression when we are looking at a very serious issue on a busy day in your Lordships’ House. These issues strike at the heart of how such a policy would be implemented. The noble Baroness said that she was unhappy with the amendment before us, but it is open to any Member of your Lordships’ House to table a regret Motion or any other kind of Motion.

We debated this issue in Grand Committee and today. Noble Lords will understand that there are grave concerns about the Government’s action. I am grateful to the Minister for giving us more information on policing. My greatest disappointment is on the issue of health. In a previous debate on drugs, to which I think the noble Lord, Lord Ahmad, responded, I said that the FRANK website is not really an answer in cases such as this because somebody has to be interested in order to access it in the first place. As the Government are seeking to ban this drug, they have to be very proactive.

[Lord Taylor of Holbeach]

I am sure the noble Baroness will admit that this is not the sole intervention that the Government are making but is part and parcel of a package of health and community activities that the Government have commissioned. Public Health England is and will be very active in pursing this ban.

Licensing Act 2003 (Mandatory Conditions) Order 2014

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 12th May 2014 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the order makes provision for the introduction of a mandatory licensing condition banning the sale of alcohol below the cost of duty plus VAT. Some noble Lords will notice that the substance of this order has been debated previously, as the Licensing Act 2003 (Mandatory Licensing Conditions) Order 2014. After some debate, the order did receive the approval of the House. Unfortunately, the process necessary for formal approval of the order did not take place, so we must give the order our consideration again.

The Policing and Crime Act 2009 amended the Licensing Act 2003 to confer a power on the Secretary of State to specify further mandatory licensing conditions relating to the sale and supply of alcohol. New Sections 19A and 73B of the Licensing Act allow for such conditions where the Home Secretary considers it appropriate for the promotion of licensing objectives. The order will apply to all licensed premises in England and Wales. Scotland and Northern Ireland are subject to different legislation.

The Government are committed to reducing alcohol-related harms. We have taken a decision to ban the sale of alcohol below the permitted price—that is, the cost of duty and VAT. This fulfils a commitment in the coalition agreement. It will ensure that the worst cases of cheap alcohol are banned from sale. The ban will prevent anyone selling alcohol at heavily discounted prices. A can—that is, 440 millilitres—of average-strength lager will now cost no less than 40p, and a standard bottle of 70 centilitres of vodka no less than £8.89. The ban aims to reduce excessive alcohol consumption and its associated impact on alcohol-related crime and health harms.

It is estimated that overall alcohol consumption will fall by 10.5 million units in the first year alone, resulting in 900 fewer crimes and 100 fewer hospital admissions. After 10 years, there will be 500 fewer hospital admissions and 14 lives will be saved each year. It is vital that we reduce alcohol-related harm, which is estimated to cost society £21 billion per year, with £11 billion of this being alcohol-related crime. In nearly half of all violent incidents the victim believed the perpetrator to be under the influence of alcohol. The most common type of anti-social behaviour experienced or witnessed—by one in 10 people—was drink-related. This measure will ensure that we take a step towards a much needed reduction in the £21 billion bill that this country faces as a result of alcohol.

In the previous debate, the noble Baroness, Lady Smith of Basildon, raised concerns regarding the evidence upon which we based the policy. I reiterate that the benefits of this policy have been assessed using the University of Sheffield’s School of Health and Related Research model. This is accepted as the best model available for estimating the benefits of this policy. I hope that the noble Baroness found helpful my correspondence following the debate setting out the modelling in more detail. More detailed information on the modelling used by the University of Sheffield can be found at annexe 3 of the impact assessment, which was published alongside the order.

My noble friend Lord Clement-Jones, who is not in his place this evening, raised during the previous debate a question on minimum unit pricing and its effects in Canada. As I noted then, the context of sale in Canada is quite different from that in England and Wales. I hope that my noble friend found my subsequent response outlining the studies helpful.

The modelling from the University of Sheffield estimates that this policy is worth £3.6 million a year in crime reduction benefits in England alone. This figure was laid before Parliament in the impact assessment and the Explanatory Memorandum. The health benefits have also been considered and again laid before Parliament. The Explanatory Memorandum notes an estimated benefit to the public sector in England alone of £1.15 million per year on average over the first 10 years. The impact assessment estimates the wider health benefits to society, as well as the public sector, to be £5.3 million per year.

While the reduction in average consumption is modest, this policy will impact the most on hazardous and harmful drinkers. We know that there is a direct link between the price of alcohol and the quantity consumed by the heaviest drinkers, who tend to favour the cheapest alcohol. We also know that hazardous and harmful drinkers generate the biggest costs for alcohol-related crime. What this policy seeks to achieve is 900 fewer crimes in the first year alone, with a reduction in hospital admissions from 100 in year 1 to 500 in year 10. Two consultations have been held on the Licensing Act and alcohol strategy, in 2010 and 2012-13. Following the results of the consultations, banning the sale of alcohol below the cost of duty plus VAT was considered to be the most pragmatic way with which to tackle the worst examples of cheap alcohol.

I hope that noble Lords will agree with the Government that the introduction of the ban is an appropriate use of the powers conferred on the Home Secretary by the Licensing Act 2003. Accordingly, I commend the order to the House.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful again to the Minister for his explanation, and I admire his ability to keep going today, as this is the fifth debate in which he has taken part. I do not intend to repeat the comments I made previously when this matter was debated. He will recall—he alluded to this—that I challenged the Government on the robustness of the evidence he provided for the policy and its impact. Indeed, I used the 32nd and 35th reports of the Secondary Legislation Scrutiny Committee. I concurred with its conclusion that the effect of this policy, as outlined in the order, “appears to be negligible”. As I recall from the debate, he said that the level of reduction in alcohol consumption would be 10.5 million units in the first year. When the matter was considered further by the committee, it said that that was equivalent to one large glass of wine a year per individual. That does not have quite the same impact as saying 10.5 million units. There was no robust evidence to show that those who most needed to reduce their alcohol intake would do so under this policy.

The Minister alluded to the letter that he wrote to me following the debate. I admit that I had not expected this order to come before us again. Had it done so with no changes, my comments would be very brief, but there are significant changes and new evidence to which he did not refer today. It might be helpful if I did so. The Secondary Legislation Scrutiny Committee in its 40th report drew attention to those changes. I share the committee’s disappointment that neither the Explanatory Memorandum nor the impact assessment was revised on being re-presented to your Lordships’ House in light of the strong and justified criticisms highlighted in the previous debate. It would have been helpful if those had been taken into account before re-presenting the Explanatory Memorandum and impact assessment to your Lordships’ House.

I will raise two issues on which I seek the Minister’s comments. In terms of new evidence, consideration of the Budget is important in assessing the impact of this policy. As was evident from the previous debate, there would be a marginal impact, which has failed to convince the Secondary Legislation Scrutiny Committee that the costs to industry, which would be significant in implementing the permitted pricing policy, could be justified. The impacts would be low and marginal—one large glass of wine a year. The Wine and Spirit Trade Association claimed that the Budget would save the industry £175 million in additional duty payments. That, in turn, would bring down the permitted price at which alcohol would be sold. If the Minister is relying on a higher permitted price to reduce alcohol consumption, he perhaps ought to talk to the Chancellor, who has ensured that the permitted price will be reduced by the reduction and freezing of duty on alcohol.

Other evidence from the Cardiff University study was presented in the committee’s report. I do not know if the noble Lord has had an opportunity to read it, but it makes interesting reading around the reasons for a significant fall in violent crime. The study was unconvinced that alcohol pricing is the most significant factor. There was a 12% reduction in injuries from violent incidents in 2003 and, for the fifth consecutive year, the NHS has recorded a decrease in injuries from violence. This issue has to be looked at again, given the large implementation costs and the impact on the industry. What added value will this policy change brought forward by the order produce for the NHS and policing if you also take into account the economic and social factors, and the policing initiatives that have led to the fall in violent crime? What additional change will this order bring about?

Finally, the impact assessment suggests that doubling the level of alcohol excise duty will reduce alcohol-related mortality by an average of 35%, traffic-crash deaths by 11%, sexually transmitted diseases by 6%, violence by 2% and crime by 1.4%. Although the impact assessment does not specify the timeframe, it says that that would be the impact. That would be pretty impressive but it is not what this policy seeks to do. It is based only on maintaining the current level of excise duty, but the Chancellor reduced it in the Budget. Can we take it that we should now seek an increase following the reduction in excise duty?

We all want the harms from excess alcohol, to which the noble Lord referred in his comments on domestic violence, reduced. However, I have serious concerns.

[Baroness Smith of Basildon]

There is a coalition Government and it is pretty hard to be optimistic. It is not about minimum alcohol pricing; that would be a completely different debate. The Government have ruled it in, then ruled it out—it will happen, it will not happen. This is about a different issue altogether. I am questioning whether the measures taken and the wonderful responses and results they are supposed to give really measure up. The Secondary Legislation Scrutiny Committee does not think so, and neither do I.

[Lord Taylor of Holbeach]

My Lords, I tend to agree with my noble friend Lord Tyler. We have had situations today where the measures are agreed in principle but then the Government’s reasoning is challenged. This is another case in which the Opposition are not quite sure where to be on this issue.

[Baroness Smith of Basildon]

The Minister is right. It is the Opposition’s job to challenge the Government not just on policy but on implementation. In accusing the Opposition of being negative I remind him that this policy was looked at by a cross-party group of esteemed Members of your Lordships’ House on a Secondary Legislation Scrutiny Committee. If I am negative and pessimistic, so are they.

[Lord Taylor of Holbeach]

The noble Baroness is quite within her constitutional rights to be critical of the Government. If the Opposition welcome a change, which I am sure they do, it would be rather nice if they said so. After all, this policy will deal with a particular class of drinker that I think the noble Baroness and I agree is a problem. We are talking about hazardous and dangerous drinkers, the very people who are attracted by the offer of cheap alcohol, as existed in the past. This measure is designed particularly with them in mind. We know that savings to the National Health Service alone are £5.3 million and the costs related to crime are £3.6 million. We welcome the general trend of a drop in violence, and alcohol is only one factor in a number of measures being taken to deal with violence—just as price is only one factor to deal with alcohol abuse. It does not invalidate its use.

The noble Baroness asked about the Budget and whether we should have changed the figures in the light of the Budget. I emphasise that it is a targeted measure, as alcohol harms. It will stop the worst instances of deep discounting which result in alcohol being sold cheaply and harmfully. The whole point of the order is to ban the worst cases of cheap alcohol sales, but other actions that help local areas to identify and tackle alcohol-related issues are all part and parcel of the coalition’s commitment to dealing with alcohol abuse. I hope that the noble Baroness will recognise the purpose of bringing forward this order and welcome it. With that in mind I ask that the order be approved.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 6th May 2014 Lords Chamber

[Baroness Smith of Basildon]

I am sure that, as a former Member of the other place, I was not suggesting for one second that it does not have the right to look at our amendments and come to its own decisions. This is about the contrast between the two issues. While I am happy to accept the explanation that deprivation will be considered further by a Joint Committee of both Houses once the Bill leaves your Lordships’ House, that contrasts with the issues of the trafficking of children and guardians for trafficked children. That provision was passed by your Lordships’ House and does not now appear in the Long Title, even though it has been amended to deal with something that is not in the Bill in the same way. It is just that contradiction between the two and I would hope that the Minister can reassure me that, since this House has committed to the guardians for trafficked children, the Government will also remain so and are not taking for granted the support from the other place on the issue of deprivation of citizenship and making people stateless.

[Lord Taylor of Holbeach]

It would not be in my nature to take anything for granted where Parliament is involved. However, I think I made the position of the Government quite clear on guardians for trafficking when the amendment was considered, and the noble Baroness herself has been well aware of that. I hope she will accept what I am saying. It will be a matter of our listening to the House of Commons, as we must now call the other place, and giving it an opportunity to present to us what it considers of our amendments. That is a reasonable position to take. Meanwhile, this change to the Long Title facilitates the adoption of my noble friend’s amendments, which I hope the House will support because they will be welcomed by many and assist individuals hitherto precluded from British citizenship by historical anomaly. They will therefore be able to register as British citizens if they wish to do so. I am extremely happy to be able to offer my support to my noble friend in this matter.

--- Later in debate ---

[Lord Taylor of Holbeach]

That the Bill do now pass.

[Baroness Smith of Basildon]

I concur with the comments made by the Minister and respect those about this being a much improved Bill. That is accurate. We are pleased that the Bill has seen significant improvements, with amendments and concessions from the Government addressing issues raised by noble Lords. I was also pleased that he thanked the noble Earl, Lord Attlee, for his help and advice during the passage of the Bill.

I also thank the Minister. Where he has been unable to address issues from the Dispatch Box, he has been prepared to meet and discuss them, and to clarify those issues in writing. All noble Lords who have taken part in these debates have contributed to the improvement of the Bill, and we hope that some of those improvements will remain as debates continue. There are others that we would have liked to have seen and have not been able to achieve, but we still agree with the noble Lord that this is an improved Bill from that which presented itself to your Lordships’ House.

I add my thanks to colleagues, not only on the Labour Benches but across all Benches, who have put a lot of work into and contributed much to the Bill. I also thank the Bill team for its efforts and for being prepared to meet, and the Labour research team that helps us on our side of the House. It is no surprise that Sophie Davis, who has been advising the Labour Front Bench on this, was the Labour researcher of the year, which we all thought was very well deserved. We look forward to another Bill and another debate in the next Session.

Muslim Brotherhood

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 8th April 2014 Lords Chamber

[Lord Taylor of Holbeach]

I cannot agree with the noble Lord, although he speaks with a great deal of authority. He will know that Sir John Jenkins has been asked to lead the review because he is one of our most senior diplomats, with extensive knowledge of the Arab world, and his role is to serve Her Majesty’s Government. He was not chosen because of his current role as ambassador to Saudi Arabia. He is not working alone, and will draw on independent advice from other places.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister referred to a review, but the Prime Minister used the words “an investigation” or “an inquiry”, and there may be some difference. It would be helpful if we could have some information on that. Has he taken the opportunity to talk about this to the noble Baroness, Lady Warsi, who always impresses your Lordships’ House with her knowledge of such issues? A report in the Financial Times says that a senior government figure reported on “tensions” between the Foreign and Commonwealth Office and the Prime Minister’s Office on this, saying:

“This cuts against what the FCO has already been doing in this area, both domestically and in the Middle East. It risks turning supporters of a moderate, non-violent organisation that campaigns for democracy into radicals”.

Is there a tension at the heart of the Government, and is this a review or an investigation?

[Lord Taylor of Holbeach]

Not at all, my Lords. My noble friend and I are at one on the issue.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 7th April 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I am sorry that the noble Baroness feels that my responses have been inadequate. It is a matter of pride that I have sought to answer noble Lords’ queries during the passage of this Bill. The noble Baroness has never implied that anything I have supplied her with has been inadequate, and I am sorry if she has taken that view.

[Baroness Smith of Basildon]

At all times the Minister has sought to be courteous and to give as much information as possible. However, he will recall that in Committee I asked questions and he apologised for not having available some of the information needed to answer them. It is no slight on him personally; he has made a great effort to try to answer. It is just that there have not been answers to some of the questions I have asked.

[Lord Taylor of Holbeach]

I have written a report on every day of this Bill, and I will be writing about today’s debate to tell all noble Lords of those things that have arisen where I am not in a position to give an answer. The noble Baroness is very generous. Indeed I do my best but there is a limited amount of time and I do not want to take up too much time on an issue that noble Lords have debated with great skill for the elucidation of the House.

As I made clear in my earlier intervention, this is an important and sensitive issue that goes to the heart of ensuring that the Home Secretary has available to her the necessary powers to respond to changes and threats to our national security. Amendments 56ZA and 56ZB were discussed in Committee, and I can assure the House that this power was drafted taking full account of the need to ensure consistency with our international obligations. The Home Secretary will personally review every case and in doing so will of course consider, in line with our obligations under the ECHR, whether deprivation is a necessary and proportionate action in response to the conduct of the individual and the threat that they pose to the UK. I hope noble Lords will be reassured by our proposal for a statutory independent review that will be able to look at these matters as part of its scrutiny of the operation of this power.

The noble Baroness, Lady Lister, asked a number of questions. She asked whether the independent reviewer would have access to information on whether the deprivation action was taken while the person was in the UK or abroad. The independent reviewer will be provided with information on all aspects of the operation of the power, including the circumstances—

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, if the Opposition were prepared to accept Amendment 56A, I should be prepared to move it.

[Baroness Smith of Basildon]

My Lords, I am not sure whether the noble Lord has moved his amendment formally but, as the matter has been referred to a committee, should this not also be referred to a committee? It would seem more sensible to us that, if a committee were discussing something, it would then decide the nature of any review that would take place after implementation.

[Lord Taylor of Holbeach]

The point that I was trying to make was that, if this were to form part of the substantive Bill, it would be possible for it to be considered as part of the Government’s proposals in this respect. I do not want the House to have another vote on the issue, but I feel that this is not in conflict with the amendment successfully moved by the noble Lord, Lord Pannick. However, I am told from the Box that there is no need for Amendment 56A, so I will not move it.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 1st April 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, we have heard some extremely powerful speeches in today's debate, especially on the concerns about overlong detention. Some of the individual cases that we have heard about strike the humanity of all noble Lords—to take a phrase from my noble friend Lord Judd. We certainly understand the reasons for the amendment and agree that it should always be the objective to reduce the length of time that any individual is in detention. I would hope that in the vast majority of cases it is possible to deal quickly with the process for individuals or find alternatives to detention. As we have heard, that is in the interests of the individuals detained—we have heard that there are 30,000 detainees each year—and in the interests of the taxpayer.

The comments of the noble Lord, Lord Ramsbotham, and my noble friends Lord Judd and Lady Lister, led to a greater concern about the regime of detention centres and the way in which rules are enforced. We agree that immigration rules must always be enforced, but the responsibility of government is to ensure that all detainees are treated humanely, with high standards and safeguards in place. As this amendment seeks to draw attention to, the process of administrating and assessing claims or arranging deportation should be undertaken as quickly and as fairly as possible.

Long delays and long periods of detention bring with them other problems. I am sure that the Minister is aware of the research undertaken by Women for Refugee Women which illustrates concerns about access to healthcare and support for physical and mental health. Only this week, we heard the extremely sad and distressing account of a woman of 40 who died at Yarl’s Wood detention centre. I was pleased that yesterday the Minister announced an investigation and review into that sad and tragic death.

Will the Minister also confirm that there will be a full investigation into the reports of sexual abuse of vulnerable women at Yarl’s Wood by Serco employees? What action has been taken as a result of the report of the inspector who said that abused and trafficked women are being held at Yarl’s Wood? The chairman of the Home Affairs Select Committee in the other place said yesterday that Serco has confirmed to him that in the past few years seven employees had been dismissed for inappropriate behaviour. The Minister will also be aware that there are ongoing police investigations and criminal proceedings, although Nick Hardwick, in his most recent inspection report, said that—I paraphrase—good progress was being made but more needs to be done. There are real concerns that have been illustrated across the House today.

However, that is not the amendment before us today. This is specifically about the length of time an individual can be held, and we heard examples of overlong detention from the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Lloyd. My concern about the amendment is that it is slightly clumsily worded and does not necessarily achieve what it sets out to do. It has an arbitrary time limit of 60 days. Within that, there is no risk assessment of the issues of whether or not someone is likely to abscond or any assessment of the reasons for the delay.

More importantly, and this gives us the most concern, foreign criminals who have completed their sentences may be detained while they await deportation. That may take a little longer than 60 days to resolve—to get all the paperwork in place, ensure that they are treated properly and make an assessment of where they can be deported to. We would then be faced with the prospect of releasing those who do not have a legal right to be in the UK and who have become convicted offenders who have received a custodial sentence. That could lead to complications in the paperwork or the complex nature of the deportation. If the amendment were passed today as it stands, we could have a difficulty with former offenders who have been held in detention prior to deportation.

Unless I have missed something, there is no process in the amendment to allow for any extension in any circumstances, whether for a genuine risk of absconding or because of deportation for previous criminal offences. There is no qualification at all in the amendment as it stands. Having said that, I think it was my noble friend Lord Judd who used a phrase—which is well worth this House returning to on a number of occasions—about the humanity and the principle of the issue. The noble Lord, Lord Ramsbotham, referred to the amendment being a “stimulus”, because the Government should be aiming to achieve far shorter detention periods.

I fully appreciate that this amendment could focus the Government’s attention on being far more efficient in dealing with cases but there is a risk here, as I have outlined, and I am not convinced that the Government would necessarily take note in that way. I would like to hear some assurances from the Minister that action will be taken to deal with any abuses of the rules and regime in any detention centre. I hope that he will not dismiss the objectives of the amendment before us today because, whatever flaws there may be in the detail, this amendment raises issues of serious concern across your Lordships’ House, as he has heard, that have to be addressed. Although we cannot support this amendment as it stands, we would hope for a very sympathetic and helpful response from the Minister.

[Lord Taylor of Holbeach]

My Lords, I am very grateful to the noble Baroness for that contribution. I think she recognises the burdens on the Government in dealing with this matter. I also say to her that, clearly, if there is evidence of wrong-doing at a detention centre, it will be investigated. However, I would like to write to the noble Baroness in more detail on that because I cannot address from the Dispatch Box the particular issues that she raises.

However, as to the general principle, we have had a really good debate today on detention. The truth of the matter is that no Government want to detain people more than they have to. I think the figure was quoted of £36,000 per annum for each detainee, which is enough incentive for any Government, not just on humanitarian grounds but on hard-nosed business terms. We do not want people detained, but these are difficult issues and we have vested, quite rightly in my view, the determination of these matters in the courts. It is the courts that determine the period of detention. Although the noble and learned Lord, Lord Lloyd of Berwick, has talked about the legal background to these issues, this is a case where that balance between the Executive and the court system determines outcomes.

I will now try to address the issues in the amendment, which my noble friend Lady Williams characteristically presented with the passion that has driven her through a most distinguished political career. Amendment 9 would require the release of any individual in immigration detention subject to a removal decision after 60 days’ detention, no matter how imminent their removal was. Removal might be due after 62, 64 or 70 days, but 60 days would be the effective limit. There is an absconding risk in that, which I think noble Lords will recognise. Having a finite limit would give people an incentive not to co-operate with removal. Much of what we have been discussing here has been discussed in very high-minded terms, but there are people in detention who will do everything that they can to ensure that they are not removed. If an individual refused to co-operate with arrangements for their removal—for example, in obtaining a travel document, which requires the co-operation of the detainee—they would be able to benefit from their non-compliance when making a bail application after 60 days of detention, even if the sole reason for their detention and for their not being removed was their lack of compliance. Even if a limit were to be imposed, 60 days is not the right limit, and I hope I can convince noble Lords of that. The Government’s view is that it is not appropriate to legislate to set a time limit for immigration detention.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 1st April 2014 Lords Chamber

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

My Lords, first I must offer the noble Baroness, Lady Smith, an apology because I do not think I wrote to her on this issue. She has not missed the letter; I missed writing to her. I am sorry about that. I will make sure that I write to her after this debate because there are extensive arguments. I want to keep the argument fairly focused for this evening.

I will start with a generality. The noble Baroness, Lady Lister, was kind to say that the Government take this issue seriously. We do indeed. Only last Thursday, I was able to respond to a supplementary question from the noble Baroness, Lady Howarth of Breckland, about a report on the way that police forces deal with domestic violence. I said that the Home Secretary is committed to tackling this scourge. She has made it clear that she expects speedy action to implement the recommendations of that report.

Having said that, it does not necessarily mean that individuals who have been the victims of domestic violence should expect to be able to remain in the UK where their migration status would not otherwise permit them to do so. While I run the risk of repeating myself from last time and being quoted back yet again, as we have discussed previously there is provision in the Immigration Rules to grant indefinite leave to remain to victims of domestic violence who came to the UK intending to make a permanent life here as the partner of someone who is already a permanent resident or who, in the case of the partner of a member of Her Majesty’s forces, is prevented from applying for permanent residence during the period of service. That just reiterates the position of that particular group of people.

However, the position is different for individuals who are in the UK because of a relationship with someone who does not have the right of permanent residence. Those individuals should not have any expectation of remaining in the UK outside that relationship, regardless of the reasons for that relationship breaking down. To grant leave to an individual who is in the UK as someone’s partner but who is not settled here on a basis other than the ongoing partnership would suggest that his or her right to be in the UK was independent of that partnership, which is not the position. It would not be helpful to encourage anyone to think otherwise or, by the grant of a specific period of leave, to give false hope that they might be able to stay. However, we take a pragmatic and practical view in these cases. If a migrant no longer meets the requirements of their leave because a relationship with a spouse or partner has broken down, discretion may be used so that, rather than curtailing leave with immediate effect, the Secretary of State may curtail that leave—if I may use the word “normally”—normally to a period of 60 days. This would allow the migrant time to make arrangements to depart the UK voluntarily without being here illegally, or to submit an application to remain in the UK on another basis. That is a relevant consideration, which I hope noble Lords will understand.

The Government consider that it is fair, reasonable and proportionate to distinguish between those whose partner is here permanently and those whose partner is here temporarily and may never become a permanent resident. I acknowledge that this is a difficult area but I think that noble Lords will understand the difficulties of extending rights in this area. I consider the position that I have outlined is the right one. As I have said, I certainly will write to the noble Baroness, with a copy to noble Lords, and will place a copy in the Library. I appreciate that this is an important issue to get right. None of what I have said dilutes our determination that we should pursue the issue of domestic violence, which ruins lives and is never acceptable. I hope that the noble Baroness understands our position and will withdraw her amendment.

[Baroness Smith of Basildon]

My Lords, I am grateful to the noble Lord for that response, although I am not sure that I understand his position. I wish that I had received a letter. With the benefit of a letter addressing the points that he has made, perhaps my amendment and the points raised in the debate would have been different. He seemed to be saying that no action should be taken. He referred to granting indefinite leave to remain, which is not what we are suggesting. All we are suggesting is a breathing space for someone to make arrangements. However, he went on to imply that perhaps a breathing space may be granted, although I am not sure of the circumstances in which that would be granted.

At one point I thought that the Minister’s reply seemed rather insensitive and unhelpful, but then it seemed that he was being more helpful. I am really not clear about the process. I would be grateful if the Minister would write to me and I could reflect on that. I know that it would not be usual to bring this back at Third Reading but, given that I did not have the response in order to address the points on Report that I would have addressed otherwise, I hope that he will be understanding and that we can discuss this issue further. At this stage, I beg leave to withdraw the amendment but I would like to return to the issue with the noble Lord, given his somewhat contradictory answer.

[Lord Taylor of Holbeach]

Of course, I am very happy to talk to the noble Baroness about the detail of this. I mentioned that the Secretary of State considers these cases and normally there is a 60-day period to get the individual’s status sorted out. We appreciate that this is not easy for individuals to cope with. I think that 90 days was mentioned by the noble Baroness, Lady Lister, and also by the noble Baroness, Lady Smith. But in practice, 60 days is within the Secretary of State’s discretion.

I will write with fuller detail. I hope that we will have a chance to talk about this before we get to Third Reading.

Metropolitan Police

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 27th March 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, it might help the noble Lord if I just say that I have made it quite clear that we recognise the sense of duty with which our police officers undertake their tasks, and indeed our confidence in the Commissioner of the Metropolitan Police.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for the content and tone of his answers. The further revelations published in the Independent newspaper today of a secret investigation into persistent corrupt networks within the Metropolitan Police are really beyond shocking. I am grateful to the Minister for his answers today, but can he tell us what action the Government will be taking in regard to these allegations as well?

[Lord Taylor of Holbeach]

I think the noble Baroness is referring to Operation Zloty and the discovery that some of the material that we were hoping to be able to use to investigate further may have been destroyed. There is a determination among everyone who is currently engaged in this matter to get to the bottom of it and to get to the truth. I am confident that we will achieve that. It may take time and there may be obstacles in our path but we are determined that the truth should be known. Indeed, by finding the truth, we will also help the police themselves regain that confidence that they should surely have about the way that they protect us.

Licensing Act 2003 (Mandatory Licensing Conditions) Order 2014

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 25th March 2014 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, my noble friend will no doubt be relieved to hear that I will not ask as many questions as did the noble Baroness, Lady Smith. I think that we have perfect symmetry here because I wish to ask my noble friend why he is not going further today and why minimum unit pricing appears to be only half on the table.

The Government’s response to the consultation acknowledged that there might be unintended consequences of minimum unit pricing. This nostrum seems to be becoming increasingly prevalent. What process is now involved? We have this form of pricing, which clearly is half a loaf, but what is the Home Office doing in terms of further research? We have robust Canadian research, which many of us have seen over the past few months. I have the relevant brief in front of me. It states:

“All 10 Canadian provinces have some form of minimum alcohol pricing applied to liquor store and/or bar and restaurant sales … The Centre for Addictions Research of BC at the University of Victoria has collaborated with five other research agencies in Canada, USA and the UK to evaluate minimum pricing impacts on health and safety. Six studies have been conducted which demonstrate impacts of increased minimum prices on level of consumption and alcohol-related harms including deaths, hospital admissions and crimes. The results support the predictions of the Sheffield Alcohol Policy Model and suggest that estimated benefits are larger than the model predictions”.

It is interesting that all the Canadian evidence seems to imply that the Sheffield model is rather conservative in its estimate of the health and social benefits arising from minimum unit pricing.

It is interesting that the Government seem to have parked this matter. I very much hope that the Minister will describe what next steps will be taken to introduce something rather more robust than what we have before us today. How on earth will officials in the Home Office assess what the unintended consequences will be? It seems to me a very circular argument. There may be unintended consequences but surely, if the evidence appears robust, the way to deal with that is to go forward on a trial or sunset-clause basis, see what the impact is and then make adjustments accordingly rather than just talking about unspecified unintended consequences. I take the point about the Scottish legal challenge but that is a timing issue in terms of seeing whether or not that will bear fruit for the complainants.

I very much hope that the Minister will give us a little bit more of a window on the future as opposed to this rather cautious approach that we have at present.

[Lord Taylor of Holbeach]

My Lords, I welcome this debate. It is good to explain to the House how this measure fits in with the Government’s alcohol strategy, and the Motion tabled by the noble Baroness, Lady Smith of Basildon, has given us a chance to debate it more fully than we might otherwise have done.

I think all noble Lords agree that, when used responsibly, alcohol can be a welcome part of social situations and community events. However, we all also accept that alcohol-related harm can affect many people in England and Wales, with victims in almost half of violent crimes believing the perpetrator to be under the influence of alcohol. This is completely unacceptable. That is why the Government are committed to tackling this issue and why it is crucial that they use all the tools at their disposal to tackle the causes of this harm.



Through the alcohol strategy, the Government are promoting proportionate and targeted action to reduce the costs and problems caused to society by irresponsible and excessive drinking without disproportionately affecting responsible drinkers. This includes giving local areas more powers to address the alcohol-related problems that they face on a daily basis through the local alcohol action area scheme, which was launched last week. It offers support to local areas in cutting alcohol-related crime and disorder and reducing the damage caused to people’s health. As well as taking local action, we are acting nationally by challenging the alcohol industry to raise its game by supporting targeted local action, tackling the high strength or high volume products that can cause the most harm, promoting and displaying alcohol responsibly in shops, and improving education around drinking.

I think all noble Lords will agree that alcohol that is too cheap is a threat to achieving the aims of our strategy. We must do something about it without penalising those who choose to enjoy alcohol in a responsible manner and without threatening economic growth by creating red tape for business. The noble Baroness, Lady Smith, and my noble friend Lord Clement-Jones asked about minimum unit pricing. I would like to be clear that this is not a debate about the benefits of minimum unit pricing. However, I accept that it is a matter of great interest and will therefore speak briefly on it. A wide range of evidence was provided throughout the consultation on minimum unit pricing. These have been considered alongside updated modelling by the University of Sheffield—I note the comments of my noble friend on this point—which suggests that a minimum unit price of 45p would have an impact on the consumption of hazardous and harmful drinkers, thereby resulting in a significant reduction in health harms and some reduction in crime-related harms.

A number of other issues were raised, including the potential impact of minimum unit pricing on the cost of living, the economic impact of the policy and increases in illicit alcohol sales. The Government acknowledge the need to give careful consideration to any possible unintended consequence of minimum unit pricing. Further, while we remain confident of the legal basis of the minimum unit pricing policy and will continue to support the Scottish Government in this area, the Government are also mindful of the need to watch the outcome of the legal challenge to the Scottish Government’s minimum pricing legislation. For these reasons, the Government have decided that the introduction of a minimum unit price for alcohol will remain a policy under consideration. I emphasise to the noble Baroness that it remains a policy under consideration. It has not been shelved but will not be taken forward at present. We will continue to monitor carefully the legal developments and the implementation of this policy in Scotland.

Perhaps I may answer my noble friend Lord Clement-Jones’s comments about minimum unit pricing in Canada. Two provinces are actively engaged in this: British Columbia and Saskatchewan. They have been doing so for some time but their policies are different in practice from the proposals that have been made on MUP in England and Wales. Social reference pricing in Canada involves minimum prices for types of drinks but not per-unit pricing. The context of sale is also different. Alcohol sales are more tightly controlled in those provinces than is the case currently in England and Wales.

My noble friend also asked about the process for considering MUP. The policy remains under consideration, which includes looking at the experience of the policy in other jurisdictions and the potential unintended consequences. Officials remain focused on keeping this under review and will continue to do so, but it would not be appropriate to set a timescale for when this will be completed.

Perhaps I may address some of the questions asked by the noble Baroness, Lady Smith. It is easier to do so in the general rather than the specific, and I hope she will allow me to write to her on some of the specific challenges she made on the impact assessment and the Explanatory Memorandum. However, I should say that the impact assessment was approved by the Regulatory Policy Committee in 2013 and given a green rating. The benefits of the model have been based on the University of Sheffield’s ScHARR model and experts in a number of different fields have fed into the policy. While the reduction is modest compared with the size of the problem, this policy will impact the most on hazardous and harmful drinkers. That is why it is designed in this way. We know that those particular drinkers generate the biggest costs for alcohol-related harm. What this policy seeks to achieve is 900 fewer crimes in the first year alone. The reduction in hospital admissions will go from 100 in year one to 500 in year 10.

The noble Baroness asked for the evidence base for the cost of alcohol. NHS costs are based on Department of Health estimates and alcohol-related crimes are based on Home Office estimates.

[Baroness Smith of Basildon]

I am grateful that the noble Lord is making the effort to address the questions. I did not ask for the evidence on alcohol-related crime or hospital admissions; I asked for evidence of the change that this policy would bring about. That was what I was trying to understand—the evidence for the changes that the Government say this policy would bring about, not evidence of the problem.

[Lord Taylor of Holbeach]

Perhaps in the context of the figures that I am intending to provide to the noble Baroness when I reply in detail, I will seek to do so. However, I think that I have just said in my most recent contribution to the debate that this policy is focused principally on those people who hazard themselves and others through excessive drinking. The policy is targeted at those drinkers with very high consumption of alcohol and is considered to be a very effective policy in this area.

The noble Baroness asked why the Explanatory Memorandum contained one set of figures and the impact assessment a different set. The Explanatory Memorandum identifies the health benefits for the public sector, as is the practice. The impact assessment presents a wider picture and includes the gains in quality-adjusted life years, which also benefits patients. The costs in the impact assessment outlined in the table on page 2 relate only to the costs in the public sector, because that is normal practice for impact assessments.

In response to the question on multi-buys, full details on how this policy will work with regard to the type of offers that have been mentioned can be found in the guidance that has been published by the Home Office. In effect, it means that, aggregated together, the multi-buy still has to meet the requirements of this policy so that there is no suggestion that the multi-buy can break through the price that this measure implements. Businesses can continue to promote multi-buys if the total price is not beneath the permitted price.

I picked up one point that the noble Baroness made about page 2 of the impact assessment. She pointed out that a whole series of costs were not included in those figures. If she looks, those total figures excluded transitional costs—and I think she admitted that the costs listed immediately above the paragraph entitled,

“Description and scale of key monetised costs by ‘main affected groups’”,

were transitional costs.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. I did see that but I just wonder why the figures exclude transition costs. They are still a cost of implementation.

[Lord Taylor of Holbeach]

It was considered that this was a reasonable way to evaluate the costs and benefits over time. Obviously, this is a continuing process, and amortising transition costs over time is not normal practice when one is doing an impact assessment. These costs are identified separately, which enables noble Lords to assess them properly.

I pay tribute to the noble Baroness’s diligence in drawing the House’s attention to some of the matters relating to the analysis of the Explanatory Memorandum and the impact assessment. I will make sure that all noble Lords who have spoken receive a copy of the letter which I shall write to the noble Baroness setting out answers to the detailed questions that she has asked me, and I hope that I will be able to answer them to her satisfaction.

I believe that at heart this is at least a brick in the wall towards building an effective alcohol strategy. We must build on this to maintain the momentum of our commitment to reduce the harm caused by alcohol to consumers, to families, to the thousands of victims of alcohol-related crime, and to local communities and businesses, which are also vital to our economy. With that in mind, I commend the order to the House and I hope that it will prove acceptable to noble Lords.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister and I look forward to receiving his letter. I do not doubt the Government’s objectives in this regard at all; what I doubt is the effectiveness of the policies outlined. I will go through his letter in some detail but, when I look at the tables in the impact assessment, the impact does not seem to be at all significant. I was not necessarily making the case for a minimum unit price; I was just trying to understand the Government’s direction of travel on this, having gone from absolute certainty to a position where the policy is now under consideration and under review. There is a lot more work to be done on this. For now, I beg leave to withdraw my amendment but I look forward to receiving the Minister’s letter and perhaps to having further conversations with him on this issue.

Immigration and Nationality (Fees) Regulations 2014

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 24th March 2014 Grand Committee

[Lord Taylor of Holbeach]

I thank the noble Baroness for her support and general welcome for these measures. I appreciate her comments and have, for me, a surprisingly large number of answers. I hope that the Committee will bear with me on them.

First, I must say that I did not refer to “a surge” but “a scourge” of illegal migration. I hope that the record shows that because that is what I meant to say. I do not want to get my notes muddled up and will therefore deal with the fees regulations first and then talk about the order on illegal working. I have a fair amount of information and will make sure that the noble Baroness receives details of the percentage increases, which actually were set out in the Written Ministerial Statement of 24 February. I am sorry that I do not have a copy of it to hand but will certainly make sure that I send it to her.

Secondly, the noble Baroness asked how much of the income generated is to cover a shortfall. She is quite right: we use this money to help support immigration services in general, which are quite expensive. If we want effective immigration control which efficiently delivers a speedy resolution of difficult cases, we have to make sure that we have the right resources to do it. The fee increases are expected to raise approximately £50 million per annum.

The noble Baroness went on to talk about that familiar subject: student visa fees and student numbers. If I appeared a little breathless when I came into the Committee, it was because I had been talking to a certain noble Lord about this very issue. I do not seem to be able to move around the House without talking about it. Our view is that there is no direct relationship between the visa fee and volume demand at this price level because the major costs are not visa fees or even the health charge that noble Lords have spoken about. Independent research suggests that visa pricing is only a marginal consideration for students and the UK is one of the most desirable places to come to study. This is an argument I have been making in the Immigration Bill. University applications are up 7% as of last September. We know that there is a problem in the Indian subcontinent as a whole, and that is reflected in the Australian experience. Elsewhere, numbers are almost the same. We have had a considerable surge in the numbers from China, which has more or less offset the decline from India. We are confident we have got the balance right.

Visas are not used as a method whereby we limit migration. We have not targeted tier 4 applicants. The 4% increase that applies to other fees also applies here, so it is a standard across-the-board increase. We set fees based on the value of the successful application to the migrant and, to that extent, it is a market-led calculation.

I think the noble Baroness welcomed the increase in fees as long as it was going to maintain or, if possible, improve service standards. We have put measures in place. There has been considerable organisational change in the old UK Border Agency. UKVI is now in-house in the Home Office, and our performance against service standards is improving. In the past year we have made great progress in reducing the stocks of in-country case work and backlogs. A straightforward application made today would be dealt with within service standards.

The noble Baroness asked whether we have considered joining Schengen or have considered our relationship with the Schengen visa system.

[Baroness Smith of Basildon]

I was not suggesting that we join Schengen. I was just taking about the comparative costs of visas.

[Lord Taylor of Holbeach]

Our visa product is competitive with Schengen in price and entitlement. We are running a pilot in China trialling ways to encourage tourists to apply for a Schengen visa and also to travel to the UK. This allows selected travel agents—that is fairly straightforward in the Chinese experience—to make offline applications for tour groups using the same form as they use for Schengen. We are trying to facilitate the use of Schengen applications in China and are monitoring that because some people say that having to make two applications for separate visas is a deterrent. However, I am pleased that the noble Baroness is not suggesting joining Schengen. In fact, I have to say that I did not think that she had said that, either—but my papers suggested that she might have done.

On the question of illegal working, I have the figures, which show an increase in particular years. They started off at 1,722 in 2008-09; the next year, they were 2,339, while in 2010-11 they were 1,898 and in 2011-12, 1,342. In 2012-13, they were 1,270 but last year, up to 28 February—we are still in 2013-14—the number was 1,862. I shall make sure that the record has the figures available.

[Baroness Smith of Basildon]

I did not quite catch them, but I shall read the record in Hansard. Does that suggest that from 2010 until last year, the figures for actions against those who employ illegal workers went down?

[Lord Taylor of Holbeach]

Yes, that is certainly the case. They dropped in that period and they have now increased markedly, so the latest figure is on track to be the second highest since the scheme was introduced.

We are taking steps to increase our focus on illegal working. With the creation of the Immigration Enforcement Directorate last year, we have already seen a significant increase of 47% in illegal working operations in 2013, compared with 2012, and a corresponding increase in civil penalties involved. Around 10,000 civil penalty notices were issued to employers since the start of the scheme until the end of 2013. The gross value of penalties levied during that time is in excess of £90 million, but the net recoverable value is £70.8 million. During the period from 2008 to 2013, almost £30 million was collected. Civil penalties to the value of £20 million were written off. The noble Baroness is right to draw attention to that factor. That happened during the previous Labour Government as well as during this Government, often because the companies evade the penalty by dissolving their business. The remainder is still subject to recovery; we are still pursuing some of these people—but we are using the Immigration Bill to make it easier to enforce civil penalty debts in the courts. The change will accelerate the process of enforcement, reduce costs and provide clarity.

[Lord Taylor of Holbeach]

Whether you are a small or large employer, it is clearly illegal to employ people who are not entitled to work here. The penalty regime is designed to provide the enforcement authorities with flexibility in how they apply the scheme. The whole point of the exercise is not to drive people out of business but to prevent businesses that gain an economic advantage by employing illegal workers from gaining that advantage and to discourage them—and to make sure that they have proper checks in place, small or big business, to make sure that they have proper records in these cases.

I would argue that in some ways it is easier for a small employer to have a rigorous regime, because people are more likely to be working alongside each other in small businesses than in larger organisations. We are trying to work with business. I hope that my noble friend will agree with me that the employment of illegal labour is a scourge that needs addressing and that, whether it is in large or small businesses, we are right to deal with it. They are treated equally, and we allow payments in instalments to reflect the impact on the business. I should just mention that.

[Baroness Smith of Basildon]

If the Minister has other points to make on the questions I asked about the penalty notices then I may be jumping the gun, but so far he has only repeated the information that I spoke of and has not given any of the information that was asked for in the debate. One question was about the money written off. The Minister in the other place said that £7.2 million was written off when companies were dissolved. I asked in particular whether we did any checks on the directors of those companies to see whether they set up other companies. I also asked what the £12.8 million remaining out of the £20 million written off was for. In the other place, the Minister, James Brokenshire, just said it was for “different reasons”. When we are writing off £12.8 million, I do not think that that is an adequate reply.

[Lord Taylor of Holbeach]

I cannot really add directly to the information that the noble Baroness already has but will certainly write to her on the matter. We are tackling phoenixism—the arrangement whereby a business is here today, gone tomorrow and there again the following week. We are intervening to prevent companies dissolving to evade penalties, which is a common enough phenomenon, and we act with the Insolvency Service to disbar directors who are clearly not prepared to abide by the law in this area. As I said earlier, the Immigration Bill accelerates debt recovery by enabling us to register the penalty as an order of the court. This avoids lengthy court processes, as we can insist on payment on a much easier basis than by having to use the court.

I have tried to answer a number of the questions but may not have answered them all. To the extent that I have failed to do so, I will make a point of writing to the noble Baroness and to my noble friend so that they are in the loop on this matter. I beg to move.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 19th March 2014 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I appreciate that that point is not part of the deliberations today on the Bill but it was appropriate for the noble Lord, Lord Ramsbotham, to address it given the concerns raised. I am glad the Minister has offered to place an answer in the Library if he is able to. I suggest if he is going on a removal flight that people do not know he is on there and he goes incognito. That is the best way to understand how these matters are carried out. I hope that is the case.

I turn to the amendments. On transitional provisions and arrangements regarding health, perhaps I should have been clearer. I apologise to the noble Lord if I was not. The reason for raising the matter here is that I am not clear from what he said in his previous responses when I raised this if any transitional provisions are required for the transitional arrangements. He referred to the arrangements between two departments—the Department of Health and the Home Office. Where I am confused and do not understand this is, as I said, in the real-life implications and workability. Will Home Office computers be able to talk to and share information with Department of Health computers?

My recollection as a government Minister of various meetings on Cabinet committees on this is that there must be some kind of process, agreement or even legislation to ensure that that happens. I am not clear if that has been agreed from what I have seen so far. It does not seem to be in the Bill and nobody is able to tell me how the process would work where, for example, somebody who has a visa and is in the country legally but has not paid the surcharge turns up for treatment. How will the health service know that they are legally in the country but just have not paid the surcharge? They came into the country and took their visa before the surcharge was in place. If that information can be provided only by sharing information between the computers of the two departments, how will that be done, have the arrangements been put in place and is legislation needed? If not, something will be needed in transitional provisions, presumably in this Bill, to undertake that. That is what I am trying to get to. I need to understand how it will work in practice.

[Lord Taylor of Holbeach]

All I can say at the moment is that if that were needed in transition it would be in the Bill. I have been party to some of the discussions that have taken place. Indeed, it is intended that there should be an exchange of information between the two departments. If the noble Baroness does not know how that will happen, I hope I am in a position to inform her. This matter does not need legislation; it is one of good administration. My noble friend Lord Howe and I both share the determination that this should be properly done because it is important to make sure that the health service is not in any way impeded by measures that we enact in this Bill.

[Baroness Smith of Basildon]

My Lords, I do not for one moment question the determination of the noble Lord and the noble Earl, Lord Howe, to make this work but when we pass legislation we need to understand—as I said at the very beginning, at Second Reading—the evidence base for something being brought forward and the workability of it; that is, if what is sought can actually be achieved and the implications, including unintended consequences. I really want to understand this. If the noble Lord could undertake to write to me with further information about how this will work in practice that would be really helpful.

I raised two other points in speaking to my amendments. It was helpful to have the response on the record. I take it from what the Minister said that there probably will not be a government amendment coming forward on the points I raised on my second amendment, but if there was it would be helpful to have very early notice of that. I would have expected that today. On the other issue, he made the point on fees. This is a reduction in scrutiny. I understand the Government’s reasoning that under Clause 62 a higher level is set and it cannot go above that but in terms of setting the amount, specifically where the fee for the visa is higher than the cost of the provision, we experience a loss of scrutiny. That is now on the record and I am grateful to the noble Lord for accepting that, even though I understand the reasons. With that, I beg leave to withdraw my amendment.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, this is an interesting and useful amendment that the noble Lord, Lord Avebury, has brought before us. If the only objection from the Government in the other place was that they thought it was out of scope and that it could not be brought forward, it is clearly no longer out of scope as it has been brought forward. I hope that the Minister might take the advice of my noble friend and that, if the Government are not able to accept this amendment or bring it back, they will explain why. I really hope that there can be a positive resolution to this.

[Lord Taylor of Holbeach]

I am grateful to my noble friend Lord Avebury for raising this matter and to the noble Baronesses, Lady Lister of Burtersett and Lady Smith of Basildon, for supporting it because we are well aware of the issues faced in acquiring British citizenship by those whose parents never married. We agree that this is an anomaly which deserves to be addressed. Having understood that nationality matters were outside the scope of the Bill, we were considering whether a measure covering this could be drafted as a government handout Bill for the next Session. I understand that had this amendment been tabled in another place, it would indeed have been ruled out of scope. However, this House has different rules on relevance and therefore it is appropriate for us to debate the matter.

I say to the noble Baroness, Lady Lister, that while I cannot give her any numbers, she is quite right that this is not about numbers but about whether to do it or not. That is the position the Government are coming from.

As my noble friend Lord Avebury pointed out, the law changed on 1 July 2006 to enable British citizen fathers to pass on their citizenship to a child where the parents were not married. This was not made retrospective, however, because it could have created difficulties for those affected in relation to any other citizenships that they held. For example, some countries do not allow dual nationality, as some noble Lords will know. Since 1987, the Secretary of State has exercised discretion in relation to those born to an illegitimate father. Discretion is exercised under Section 3(1) of the 1981 Act to enable the registration of children born before 1 July 2006 who are the illegitimate children of British citizens or settled fathers. Registration can take place if the Home Secretary is satisfied about the paternity of the child, if all those with parental responsibility have consented, if the good character requirement is met and, had the child been born to the father legitimately, if he or she would have had an automatic claim to British citizenship or an entitlement to registration.

However, this exercise of discretion under Section 3(1) applies only to those who are minors at the date of the application for British citizenship. There is no power in law to register as a British citizen a person who was born illegitimately to a British citizen father before 2006 and who is now an adult. We accept that this creates a lacuna and that those who were born illegitimately to British citizen fathers are at a disadvantage compared with those whose parents were married.

I cannot accept my noble friend’s amendment as currently drafted because while this provision covers any person who would have been a British citizen had his parents been married, we think that it should be set out clearly exactly who should benefit from such a change in the law. In addition, other matters would need to be considered such as good character, which persons registered under this provision should be British citizens by descent and what additional measures should be included for those who might apply when under the age of 18. These are technical matters which need to be considered in amending the legislation. I am afraid that I must resist the amendment as it stands but I am happy to commit to taking it away, with a view to considering urgently whether the Government could prepare a suitable amendment for tabling at Report. I hope that amendment would have the support of the House, should it come back, and I therefore ask my noble friend to withdraw his amendment and its proposed new clause.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 17th March 2014 Lords Chamber

[Lord Taylor of Holbeach]

The noble Baroness will have to allow me to write to her on that issue. The Government have responded to the report of the Joint Committee on Human Rights, so she may find that the answer is in there. If not, I will seek to provide her with that answer.

As I said, Clause 60 is consistent with the UK’s obligations under international law. As I have set out here, and as accepted by the JCHR in its recent report, this clause is in accordance with international law by virtue of the UK’s declaration upon ratifying the 1961 convention and the domestic legislation that existed at the time. There is therefore no question of the clause undermining our international obligations. We are adapting and responding to the threat that the UK faces, but acting within our international obligations. Amendment 76 would be an unnecessary addition to the Bill.

The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, asked if we were contravening international law by making people stateless. I have given the answer to that. As a party both to the UN Convention on the Reduction of Statelessness of 1961 and the UN Convention Relating to the Status of Stateless Persons of 1954, the UK is obliged to comply with the provisions of those conventions, which we would continue to do. If a person was recognised as a stateless person and inside the UK, they would have—as my noble friend Lady Hamwee rightly pointed out—protection against removal and a right to work and study. Depending on circumstances they may be granted access to public funds and be able to apply for a stateless person’s travel document. Those, therefore, are the facts: we would not seek to ride roughshod over those conventions that we have signed up to.

[Baroness Smith of Basildon]

I did not intend to intervene until the noble Lord had spoken, but there is a lack of clarity in what he has just said. It does not seem to be the same as what the Minister, James Brokenshire, said in the House of Commons. He said that special consideration may be given, and that if leave to remain or some other kind of leave to be in the country was given, conditions would be attached to it. He mentioned new conditions. Is that the noble Lord’s understanding, or is this something different?

[Lord Taylor of Holbeach]

I must say that nothing I have said implies that there may not be conditions. They are frequently imposed on people who may pose a threat to this country, and this case is no different. However, I have said that the right to protection against removal would be part of our obligation under the existing conventions, and we would not seek to do otherwise than honour those conventions.

On the challenge made by the noble Baroness, Lady Smith, about the question of deprivation action taking place only in the UK, that is the salience of Amendment 76A. The purpose of the new power is not to target naturalised people who are abroad, but to allow the Secretary of State to take timely action against individuals, whatever their location at the time the decision is made.

However, it is a fact that in some cases key information comes to light when a person is outside the UK. Indeed, often travel abroad to terrorist training camps or to countries with internal fighting is the tipping point—the crucial piece of the jigsaw—that instigates the need to act, given the potential danger that those individuals would present on their return to the UK. The Home Secretary therefore needs to be able to determine the most appropriate response and timings to deprive a person of citizenship, regardless of whether they are inside or outside the UK.

--- Later in debate ---

[Lord Taylor of Holbeach]

The noble Baroness is right. I was getting muddled between the two responses. The second report has not yet been responded to; it will be. I hope that it can address some of the issues raised by the noble Baroness.

The noble Baroness, Lady Smith, referred to the question of whether there was some difference between what James Brokenshire said and what I said in my speech. Perhaps I can explain that by saying that where a person cannot be removed to another country, we would consider whether a discretionary granting of leave was appropriate. An option would be for the person to be placed on limited leave, with conditions such as regular reporting restrictions or the need to notify the Home Office before taking up work or study in a particular field. I hope that explains that there is no difference, and I think it backs up my supplementary answer to the noble Baroness when we debated the issue.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for coming back to me on that point, but there are numerous other questions that he has failed to answer. He has not answered any questions about whether there are any other areas of law in this country that allow for two categories of citizenship. He has not told us whether there have been discussions or consultations with other countries to which British passport holders may travel—

[Lord Taylor of Holbeach]

On that first question, perhaps I could ask what the noble Baroness means by “two categories” of citizenship.

[Baroness Smith of Basildon]

In most countries, if someone is a citizen then they are a citizen. If someone is a natural born citizen of this country, their citizenship cannot be removed and they cannot be made stateless. Yet in this Bill the Government propose that if someone is a naturalised citizen of this country—as are Members of your Lordships’ House—they could have their citizenship taken away, even if they would be made stateless. I thought that that was clear, and that it was the point of what the Government sought to achieve.

--- Later in debate ---

[Lord Taylor of Holbeach]

Surely the categorisation is about naturalised British citizens and not about whether they are stateless. Therefore, this is in existence because it already exists in UK law.

[Baroness Smith of Basildon]

I think that the noble Lord is missing the point. My understanding was that if someone was a naturalised British citizen, he or she had all the rights and responsibilities of any other citizen. That is changed by this legislation. I was asking whether any other area of law is responsible. The noble Lord can come back to me on that. The position would be changed by this legislation because a naturalised citizen can be stripped of their citizenship and be left stateless. If I am correct in my understanding, a British-born citizen could not be left stateless. Only naturalised citizens could be made stateless by this legislation. Perhaps the noble Lord wants to respond to that.

[Lord Taylor of Holbeach]

I am afraid that there is a disconnect in our train of thoughts on this. I will write to the noble Baroness to explain exactly how this operates. The only change made by Clause 60 is that statelessness is no longer a reason why naturalised citizens should not be deprived of their citizenship. It is not a question of two categories of citizenship based on whether a person is naturalised or not.

[Baroness Smith of Basildon]

I think that it does and I will look to the lawyers on this issue. I also look forward to receiving the letter. Only naturalised citizens of this country could be made stateless. Natural-born citizens could not be made stateless by this legislation. However, I have other questions. I asked about consultation and discussions with other countries on the impact of people travelling overseas on a British passport and having their citizenship withdrawn. The noble Lord has not come back to me on that point. He has no more information on the 27 people. He has not come back on the issue of someone not being able to get citizenship in another country. We have the short-term answer but not the long-term answer. A number of questions remain unanswered.

The noble Lord is always very gracious and helpful in writing to noble Lords when he has not been able to answer questions. However, this clause has had very little scrutiny in Parliament. To have tabled it at the last minute, literally about 24 hours before Report in the other place, was disgraceful. It would have been helpful if all those answers had been addressed today to allow a full and proper debate. I am grateful to the noble Lord for writing to us but that is not a good principle when issues have not been debated in the other place. After the noble Lord has written, the only discussion that we will have will be at Report stage. I find that unsatisfactory.

[Lord Taylor of Holbeach]

If the noble Baroness had advised me in advance of the things she was uncertain of, I would have done my best to provide her with those answers. I have limited resources available to me at the Dispatch Box and a limited amount of time. I have suggested to the noble Lord, Lord Pannick, that it would be very useful if we could discuss this matter before Report stage. In the mean time, if noble Lords have any questions other than those that they have raised today, which I will address in writing, please advise me. It is important to get this legislation right. I believe in being able to scrutinise legislation in this House, in Committee and at all stages of a Bill.

I apologise for not answering all the questions but I have done my best. The noble Lord, Lord Pannick, advised me that he considered that my reply had been helpful. I seek to be helpful to the House.

[Baroness Smith of Basildon]

The noble Lord always seeks to be helpful. My point is a broader one of scrutiny and the lack of time available for discussion, but I would welcome any meeting. I also say that my resources are somewhat more limited than his. I sometimes felt that in his response we were having a slightly different debate. He was responding to a debate about deprivation of citizenship. Most noble Lords who spoke in today’s debate were talking about statelessness and its implications for the security of the UK. There was little argument that there might be a need at times for people to have their citizenship taken from them or revoked. That was understood. It is the changes being made by this legislation that would create a position of statelessness that cause the most concern.

The reason I say that great scrutiny is required is to establish evidence as to whether the measure is necessary. I thought that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was extremely helpful in his take on the measure before us. I also ask whether this measure achieves the objectives that the Government are seeking. The noble Lord and his party do not have a monopoly on wanting the citizens of this country to be safe and secure. I am sure that is the objective of every Member of your Lordships’ House. However, we do have to consider the wider impact and unintended consequences of any legislation that is brought before your Lordships’ House. There is much concern about the measure. Noble Lords have asked many questions and the opinions of respected and eminent lawyers have been quoted. That is because of concern that it does not achieve the objectives that the Government are seeking. Most importantly, it does not make the citizens of this country, or more widely, safer or more secure if people are deprived of citizenship in a way that makes them stateless.

I take on board entirely the comments made by the noble Lord. He was talking about individuals who have committed acts that are a danger to this country and that may involve terrorism. Why, if there is evidence of that, could it not be presented as evidence against those people? Instead, the Government want to make them stateless. There are consequences around statelessness that give rise to concern for public, national and international safety. I look forward to receiving further information from the Minister. The jury is still out on this. I have not been convinced that the measure proposed by the Government does what it seeks to do or is an appropriate way forward. I beg leave to withdraw the amendment.

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[Baroness Smith of Basildon]

My Lords, my comments are equally brief. I have added my name to one of the amendments, and I think that the idea of an independent reviewer and a sunset clause are reasonable and worth further consideration by the Government. Like our amendment, they would provide greater oversight, which I would have thought all parties would welcome. Perhaps I may add one point. It may be possible that an existing independent reviewer could fulfil the role, and I think that we would all be willing to discuss how that could best be achieved.

[Lord Taylor of Holbeach]

My Lords, after the passion of the previous group of amendments, I find this a little easier to respond to. The noble Baroness, Lady Smith, has made the point that there is a pre-existing independent monitor, and indeed my noble friend Lady Hamwee referred to the role occupied by John Vine. His role was set up under the UK Borders Act 2007, and he is able to monitor and report on the efficacy and effectiveness of functions relating to immigration, asylum and nationality. That includes the effectiveness of decision-making on deprivation of British citizenship, so it exists already.

This is not an annual review process, and I think that that is probably one of the things we disagree on. With all his independent inspections, the chief inspector is permitted to examine only individual cases for the purpose or in the context of considering a general issue. But it illustrates that in addition to the judicial scrutiny of individual cases—I have explained that the power of appeal still exists—Parliament has already agreed an independent inspection regime which covers nationality and hence the deprivation of nationality.

Throughout the passage of the Bill, the Government have stressed the serious nature of the cases that will be considered under this new power. Clause 60 itself carefully limits the uses of the power to circumstances where an individual’s behaviour meets a new, higher threshold of being,

“seriously prejudicial to the vital interests of the United Kingdom”.

This will ensure that the courts subject the strength of the Government’s rationale for deprivation to close and anxious scrutiny in each and every case. In this case, I do not believe a new independent reviewer is necessary.

There has been a lot of discussion regarding the requirement to publish guidance and how individual cases will be considered, evidenced and decided. As I have said, deprivation is nothing new—it has gone on under this Government and previous Governments. Established practice exists, and guidance is published for fraud and deception cases, for example. Every case is different and will have its own case-specific facts. The core requirement on officials is to assess evidence and circumstances, consult colleagues across government and carefully weigh the evidence before making a recommendation to the Home Secretary. This is central to all cases. The Home Secretary herself reviews and personally signs off all deprivation decisions. Beyond this, there is little additional detail that would necessarily be appropriate, given that matters in cases that will fall under Clause 60 will be to do with national security. More importantly, in every case, the individual will be told the reasons for the decision and there will be a statutory right of appeal to the courts in each case.

I will address the bid for a sunset clause in this matter. The Government have a responsibility to protect the public and to respond to threats, and this clause is aimed at dangerous individuals who abuse their British citizenship and threaten the security of the UK. As I have emphasised, the power will be used only against those who pose such a threat. However, it is impossible to predict as and when these threats will emerge and I do not believe it would be appropriate therefore to time-limit the clause.

As I have said, I hope we have an opportunity to meet between now and Report, and this will no doubt be one of those matters which could be discussed at that stage. In the light of these points, I hope that the noble Baroness will agree to withdraw the amendment and that other noble Lords will not press theirs.

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[Baroness Smith of Basildon]

My Lords, I have just a couple of queries relating to Schedule 8 on “Embarkation checks”. This obviously requires co-operation and action from the airlines.

I was a bit concerned to receive an e-mail and a briefing note from the British Air Transport Association expressing its concerns about the schedule—not about the principle or what it seeks to do but the way it could be achieved. It says that it has worked very closely with the Government to ensure that e-Borders is in place—it has invested in that—but it is concerned that it will not be able to use passenger data for e-Borders as a new system is being brought in. It is seeking assurances from the Minister about the action that is being taken to work with the UK airlines, which of course have responsibility. It is concerned about longer boarding times and, most importantly, the risk at borders, because it feels that introducing the checks at border gates will require unqualified customer service staff to take on the role of an immigration officer without having the training to do so. It also feels that in some airports there are physical constraints because there is not sufficient or adequate infrastructure to support the efficient and timely carrying out of the checks. It also mentions issues around cost.

My understanding is that the British Air Transport Association has put a proposal to the Home Office on how to address this and how it can meet the requirements of the legislation without incurring additional costs, delays, constraints or compromises in security, which is another concern. I would be grateful if the noble Lord could address those points, and tell us what discussions are ongoing at the moment and when the Home Office expects to reach agreement on this. My fear is that if the association says that it physically cannot undertake measures in the Bill, a very serious situation then emerges.

[Lord Taylor of Holbeach]

My Lords, this is an opportunity to discuss this development, which forms part of the strategy and is widely supported.

I am very pleased to have the support of my noble friend Lord Avebury on this issue. He asked whether he was correct in his assumptions. I can tell him that he is: for the vast majority of individuals, the embarkation checks will be quite simple and straightforward and the existing officials employed by ports and airlines will be trained to do this task using very limited examination. The checks will allow those who currently have a role in outbound passenger processes to be designated and trained to perform the basic checks to establish a person’s identity, to collect the data necessary to identify threats or persons of interest and to confirm departure, so it is only those who are of interest who would be dealt with. It is not intended that designated persons should exercise any other powers of an immigration officer, such as powers of search or detention.

The exit checks will allow us more easily to identify those who have overstayed their visas and will help us improve measurements of migration so that we have a sounder basis for policy-making. The Government are confident that Clause 61 and Schedule 8 as drafted will provide the full range of powers necessary to conduct embarkation checks at the border and to collect all the information necessary to deliver in full an exit check capability.

The noble Baroness referred to a briefing that she had had. I have not seen that briefing but we are working closely with airlines to ensure that those checks can be conducted with minimum if any delay. We want to control departures in the same way as we control people coming into this country. We have introduced a new system for general aviation, the collaborative business portal, which allows operators to enter their data online. We do not plan to use the embarkation check powers in the Bill for general aviation and general maritime operators. We are working with them on a co-operative basis to enable them to come up with solutions that deliver our objectives, and those discussions are going very well.

I was asked by my noble friend whether we would achieve 100% coverage of exit checks. As I say, our target date is April 2015 and we are still sticking to that. We will have the arrangements in place to enable checks on those who leave the UK on scheduled commercial air, sea and rail services.

The noble Baroness, Lady Smith, asked whether this would lead to long delays at ports. We see the checks as being important, but our aim is to integrate them within the grain of existing processes in order to minimise the impact on passengers at ports. We are introducing the powers in the Bill so that we do not need to use immigration officers to do this work but, rather, can use existing staff, properly trained to deal with this particular process.

[Baroness Smith of Basildon]

I think that that is the point I was making. One of the issues raised by air transport operators was that it would not be qualified immigration staff undertaking checks but rather customer service staff.

Also, I think the Minister said that there would be two dates. He said that all the exit checks would be in place by April 2015 but then said that the system would not be rolled out in every place. I am trying to understand whether this really makes our borders more secure, or whether the fact that unqualified customer service staff instead of immigration staff are undertaking checks will cause a problem.

[Lord Taylor of Holbeach]

Not at all. These are not customer service staff but designated persons who will have the authority to do the task of exit checks. They will be designated and trained to perform the basic checks required that will deliver the policy.

I do not think that I said that this would be rolled out. I said that we intended to have the checks in place by April 2015. That is the plan, and it is going according to plan. I hope that the Committee will accept that.

[Lord Taylor of Holbeach]

All I can is that if my noble friend is flying to Düsseldorf, she can expect to have her passport checked at that time. She will know that that is what is happening. There is no difference.

[Baroness Smith of Basildon]

I am sorry, but I seek clarification on this. Does that mean that those airlines already compliant with providing passenger data through e-Borders will still have to have these additional checks undertaken at the point of leaving the country?

[Lord Taylor of Holbeach]

We are working with the airlines to find ways in which the existing advance passenger information can be incorporated into these checks. The advance passenger information provides only so much information. It is very useful and gives names, but it does not necessarily give the details of the individual’s passport or any visa requirements on that passport. That is a matter for examination, and the designated staff will be in a position to check that material at the time the person leaves the country.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 12th March 2014 Lords Chamber

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

I am delighted that we now have another name for the rollout and the trial run; we are accumulating quite a vocabulary of descriptions for this important part of the development of this legislation. I am grateful to all noble Lords who have spoken. We have moved down to some detail, which it is important that we use Committee to tackle. I am grateful in particular to the noble Lord, Lord Best, for tabling his very thoughtful amendments, and to my noble friend Lady Hamwee for hers. They are clearly intended to improve this part of the Bill. I welcome the opportunity I had to meet with the noble Lord, Lord Best, as I explained already, and with a number of interested bodies to discuss these provisions. My door remains open to the noble Lord; some of the suggestions he has made today require further exploration jointly between government and their advocates, so I hope that this will be a beginning.

This group of amendments includes some interesting suggestions, which I will reflect on further, as is right and proper. However, some of them would represent a retrograde step. We can take things in a different direction and further forward than perhaps the amendments aim to take them. I remind noble Lords that the aim of the legislation is to require landlords to conduct immigration checks on all adults who it is intended will occupy the property when the tenancy is created. It does not require all such adults to be named on the tenancy, although that may become common practice in future, and the Bill allows landlords to delegate the task of performing checks to a letting agent. The checking requirement applies only where the property is occupied for rent or lodging as the person’s main or only home.

That is an important measure, and the Government are right to identify housing as one of those facilities which, if controlled by measures as provided for in the Bill, will serve as a deterrent to illegal immigration. I am sure that the noble Baroness will share that view, just as both parties agreed that employers’ checks on people seeking work have been effective in that regard.

The Bill does not require the landlord to monitor who is living at the property once the tenancy has been created. While some landlords already require their tenants to inform them of changes to the composition of the household, some do not, and we recognise that. Where a tenant sublets the property or accepts a lodger without the landlord’s knowledge, that tenant effectively becomes the landlord under the scheme, so to a degree the landlord’s responsibility applies to the person who occupies the house as a principal home.

[Baroness Smith of Basildon]

Can the Minister clarify whether that is the case only if the tenant accepts payment by the lodger? Presumably, if they accept someone to stay in the property as a guest, nobody will be liable to check their immigration status.

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[Lord Taylor of Holbeach]

I am sorry because, as my noble friend Lord Attlee whispered to me, “You’re wrong”. He is so delicate in these matters. But I am wrong. This transfer of responsibility occurs when rent is paid; when no rent is paid, that is not an arrangement under this scheme. I hope that that is understood, and that it helps to clarify the border as to where the reporting happens.

[Baroness Smith of Basildon]

I am grateful to the Minister and thank him for clarifying that—we all make mistakes. Does that not seem some kind of a massive loophole in the law—the landlord will have to undertake all these checks to ensure that the landlord’s tenant is a legal citizen of this country and entitled to stay, but the person who is renting the property could then allow guests to stay permanently, with it as their main home and with no payment? It would be possible for a rogue landlord to charge exorbitant rent to one person and for the others to stay for free. There seem to be complications around that, allowing a significant loophole in this legislation, if I am correct—but I may be wrong.

[Baroness Hamwee]

My Lords, I might add to the complications by pointing to the provision that, although the residential tenancy agreement of rent must provide for payment of rent, it need not be a market rent.

[Lord Taylor of Holbeach]

Yes, a further elaboration of the point is that the restriction applies only when the person is under an agreement, formal or informal, where the tenant pays rent. The immediate landlord is responsible; if the tenant sublets without the superior landlord’s knowledge, the tenant is responsible for the subtenant. This is quite convoluted language, if I may say so, and it might help noble Lords if I wrote to clarify that point. I see the importance of making it clear where the responsibility lies in these matters; I thank the noble Baroness for raising the issue in the first place and my noble friend Lady Hamwee for her comments.

[Baroness Smith of Basildon]

I am grateful—that is very helpful. But perhaps the Minister could address the point made by the noble Baroness, Lady Hamwee, and myself about a loophole. It does not have to be the market rent; it could be an exorbitant rent to one tenant to allow others to stay there for free. If he could address in the letter whether that is a loophole, that would be very helpful.

[Lord Taylor of Holbeach]

Yes, I will do it in the letter. I feel that if I try to do so here today, I might get into even deeper water than I am already swimming in.

Home Office immigration enforcement will enforce the scheme in the normal course of its activities. Where illegal immigrants are detected during illegal working operations, when arrested for criminal offences, or as a result of intelligence, immigration enforcement will investigate where the person is living. This will include establishing whether the new duty on landlords has been breached, who owns or controls access to the property, and who is collecting the rent. That ties up with the consideration that the noble Baroness asked me to look at earlier.

The checking requirement will apply only to adults, and the person’s age as a matter of fact will be apparent from the documents presented. The system of document checks has been adjusted, following consultation with landlords, to reflect closely existing check practice by landlords. Where these simple checks are completed, the Bill makes it clear that the landlord will have an excuse, and therefore will not be culpable under the provisions of the Bill. Only original documents can be accepted in view of the obvious risk of forgeries, as noble Lords will understand.

Earlier in the Committee’s deliberations—I am grateful for the comments of my noble friends Lady Neville-Rolfe and Lady Williams of Crosby—I announced the Government’s intention to bring forward on Report an amendment to broaden the exemption for student accommodation owned, managed or arranged by higher education institutions in all parts of the UK. Obviously, we await the full detail of the amendment, but I think this very much meets the point that noble Lords have made. This is an important area for two reasons: first, because it reinforces the message that I am trying to get over that we want to make it clear that we are supportive of the university sector in this country; and, secondly, because it introduces the concept that there can be no need for double checking in this area given that the university has already satisfied itself that its students are properly entitled to be in this country. I note the suggestion about the engagement of Section 233 in the amendment of the noble Lord, Lord Best, and I have already noted my noble friend’s contribution on the council tax exemption point.

The noble Lord, Lord Best, has raised concerns about people who are in need of support at a time of homelessness or the threat of homelessness. The exemptions in Schedule 3 already deal directly with the work of hostels and refuges and the work of local authorities, where they are providing assistance to comply with their duties, or are providing assistance on a discretionary basis to a person who is homeless or threatened with homelessness. Therefore, we have made this clear in the Bill.

The noble Lord makes a very interesting suggestion in advocating, and elaborating on, a role for a verifying body to support small landlords in performing the required checks. I say, in the modest way that Ministers do, that I undertake to reflect further on the merits of this suggestion. This is an interesting matter for us and the noble Lord to discuss. The Government want these arrangements to be workable in practice. I think my replies have shown that the Government see this as an important aspect of policy but it must be practical and work for landlords and people who want housing. We also want these arrangements to be successful in achieving the policy objective of deterring illegal migration.

I think I have made it plain that I want to engage with noble Lords. I hope that, in the light of the reassurance I have given, and, indeed, my promise to write in detail specifically on the division of responsibility—that is essentially what we are talking about in relation to the definition of a tenancy and landlords’ responsibilities—the noble Lord will withdraw the amendment.

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[Baroness Smith of Basildon]

My Lords, these amendments build on the two previous debates that we have had on this issue and highlight its difficulties and complexities. I know that the Minister will give an explanation of these but I ask him to take on board the points that have been raised today, and the other points raised on Monday at Questions, which strike at the heart of what these clauses seek to do.

What worries me is that if landlords are going to rent out their properties and want to abide by the law, they will need to have absolute clarity about what is expected of them. The noble Baroness, Lady Hamwee, thought that she was testing the patience of the Committee. I do not think she was because, for example, Amendment 55Q makes an important point. I worry that the measure outlined in that amendment could be a further deterrent to landlords to rent.

The noble Baroness mentioned the code of practice and the documents available. As I said on Monday, the Government have tried to be helpful by increasing the number of documents available. However, I am not sure how helpful that is because it creates even greater complexities. I had hoped for an explanation of why under List A of acceptable documents, 10f has only a full stop. Presumably there is something missing and there will be another document at some point.

[Lord Taylor of Holbeach]

It is only a draft document. There may well have been other matters under consideration at the time.

[Baroness Smith of Basildon]

So there may be further documents which are acceptable. I appreciate that.

However, clarity for landlords is crucial, particularly if they are expected, according to the impact assessment, to pay £6.8 million-worth of fines, which is the Government’s break-even policy objective. Every time I read the landlords’ guidance it raises more questions than answers and I am sure it will be the same for landlords. If I were a potential landlord I would regard this as a disincentive.

In the previous debate I asked the Minister a question about landlords seeking to play safe and the noble Baroness, Lady Hamwee, has reminded me that I did not receive a response. The worry is that landlords will look at the obligations placed on them and want to choose tenants who most look like, sound like and are easier to identify as, in their eyes, British citizens. Rather than choosing those who may even have permanent leave to remain, they are going to play safe. There is a discriminatory aspect to that. However, the specific question I asked was whether the Government have made any impact assessment of the impact of the legislation on the availability of rooms to rent in the private rented sector. It would be helpful to know if any consideration has been given to that point.

[Lord Taylor of Holbeach]

I am grateful for both the debate and the amendments tabled by my noble friend. They contain constructive suggestions and are designed to make this part of the Bill work, an aim which noble Lords will share. The amendments seek to exclude vulnerable people and students from the provisions of these clauses. I have already referred to the Government’s plans in relation to students. However, I wish to provide some reassurance in relation to those who may be vulnerable.

On the point made by the noble Baroness, Lady Smith, discrimination is a concern. Certainly if it became widespread it would destroy the credibility of these arrangements. That is why there is a code on discrimination running parallel with the code of practice. As noble Lords will know, to breach this code and to act in a discriminatory fashion is against the law in any event, and so it is part and parcel of the package of non-regulatory measures being brought forward to reinforce these particular provisions.

Clause 16 provides discretionary powers for the Secretary of State to authorise a tenant who has no lawful status to rent property. This will include asylum seekers, who will be able to confirm that they have a right to rent with the landlords’ checking service, or a landlord may conduct a check directly with the service. This discretion will be exercised where a failed asylum seeker is unable to return home because of a recognised barrier.

Tenants housed by virtue of children or national assistance duties are also covered in exclusions. Schedule 3 provides that any accommodation provided to a person as a result of a duty on a local authority is excluded—that is, a duty on a local authority in respect of any obligations to vulnerable people. It does not seek to particularise the duties, including the respective Acts and orders relating to children or social care; it is a general obligation which local authorities may have to individuals. Therefore the amendment proposed by my noble friend is not necessary given the wide scope of this exclusion.

The amendments are also intended to provide further protection to landlords. The provisions create a civil penalty scheme which the Government are committed to applying on a light-touch basis. Where a suspected contravention is discovered, the Secretary of State may issue a penalty notice, including where they are not immediately contactable. The landlord is then afforded a right to raise objections. Where these objections show that the landlord has a statutory excuse from a penalty, they will be notified in writing. No further consequences will arise if the objections show that the landlord has a statutory excuse.

The power to increase a penalty is important—it is a kind of parallel power—as it may not be immediately clear whether the landlord has been previously penalised in this way. The landlord may, where it is decided to maintain a penalty, appeal to the courts. That is the right order of events: rather than going immediately to appeal, adjudication can take place informally between the landlord and the Secretary of State.

It is proposed that where a penalty remains unpaid the Secretary of State should be able to pursue recovery through the courts if the penalty were due under a court order in exactly the same way as a civil penalty. In cases where an appeal has been heard by the courts, this avoids the landlord, the Secretary of State and the courts having to return to the same court to hear an application for judgment for an amount the court has already determined should be paid by the landlord.

Turning to Amendments 55A and 55B, to which my noble friend wanted me to pay attention, I remind the House that the proposed sanction is a civil penalty, an administrative scheme; it does not form part of a criminal investigation. Clause 23 places a responsibility on the landlord and/or agent to evidence that they have complied with the prescribed requirements and have maintained an excuse against a penalty where necessary. That does not mean to say that the Secretary of State is not required to establish that there has been a contravention of Clause 17 to justify the issue of a penalty notice, nor that the Secretary of State will not engage with the landlord or agent and give them the opportunity to establish an excuse before a penalty notice is issued. I can confirm that the intention is that landlords and agents will be invited to demonstrate their excuse before a penalty notice is issued. However, in cases where the landlord or agent refuses to co-operate with an investigation, the Government consider that this is a proportionate and practical approach. The landlord or agent can easily prove that they have undertaken the checks by producing copies of the relevant evidence, whereas it would be difficult for the Secretary of State to establish a negative and establish that the prescribed requirements were not complied with.

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[Baroness Smith of Basildon]

I apologise because I now understand why the noble Lord is inching towards our pilot. However, I have asked him a question in the last two debates: has any assessment been undertaken of the impact of this part of the Bill on the availability of rooms to rent and properties to rent?

[Lord Taylor of Holbeach]

I cannot give the noble Baroness an absolute answer to that question. Of course one of the reasons why the rollout is important is that we need to check to see if there are any adverse implications in this policy.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 10th March 2014 Lords Chamber

[Baroness Smith of Basildon]

I am sorry to intervene on the noble Lord; I know that noble Lords are anxious to get on to the next debate. The answer the Minister gave me was not the answer to the question that I asked. I asked about those who have leave to remain in this country and are here legally—they could be UK citizens—but, having fled the domestic home where they have been subjected to violence, do not have the documents to show to a landlord and so cannot prove their status. How does the noble Lord intend for that matter to be dealt with, given the problems that it will cause to women fleeing domestic violence?

[Lord Taylor of Holbeach]

My Lords, I remember that the noble Baroness painted this scenario and I understood it well enough; I am sorry if I missed that point in picking up another. There are exceptions for refuge accommodation and local authority-provided housing. After all, a broad range of individuals are in this situation. Social services will be able to help them with long-term housing needs and asylum seekers will also be authorised to rent. If I have not satisfied the noble Baroness, I do not want to mislead her or the House by giving her an off-the-cuff response which is beyond my brief at the minute. I will write to her, and copy in everyone, on this matter.

I am looking through these notes, and see that I have satisfied a number of questions—such as those raised by the noble Lord, Lord Patel, on children—in the way in which I have answered the broader matters. However, I recognise, too, that I may not have covered all the points made by noble Lords, but I am very mindful of the time. If noble Lords will forgive me, I will ask the noble Earl, Lord Listowel, to withdraw his amendment. I thank all noble Lords who have contributed to the debate, which is by way of a warm-up, I suspect, for further adventures in these fields with the amendments that are yet to come.

Immigration Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 3rd March 2014 Lords Chamber

[Baroness Smith of Basildon]

I am grateful to the Minister for addressing the amendment, but he will know that that was not the substance of the questions that I asked. It was used as an example to raise two issues, the first being the criteria that the Home Secretary would use and the second, significantly, whether an individual who had had bail denied would be told whether the Secretary of State had overruled the tribunal judge. The amendment was just probing. If the Minister could address the questions that I asked, I would be grateful.

[Lord Taylor of Holbeach]

I was about to go on to develop the theme based on the noble Baroness’s example. I cannot give an exhaustive list of the circumstances where the Secretary of State might consider it right to intervene, but examples which we have already given in the statement of intent are good ones. Mental health and family bereavement are examples of such circumstances which I hope the noble Baroness will understand. We expect the power to be exercised in a relatively small number of cases.

[Baroness Smith of Basildon]

I think the Minister has missed the point that I made. I was probing not what the exact examples would be but the criteria that the Secretary of State would use given that she will have the ability to overturn a decision by a tribunal judge. In the other place, Norman Baker said that there were no other grounds that she would look at, yet that begs the question about it being a political decision. What grounds will the Secretary of State use if she decides to overturn the decision of a tribunal judge?

[Lord Taylor of Holbeach]

I hope that the examples I have given show that these are not trifling matters. Deterioration in a person’s mental health or a family bereavement are changes in the circumstances of the applicant which would mean that the Secretary of State was able to make an immediate decision without it having to go back to the tribunal for a bail hearing. This is the Secretary of State using her executive power to ensure that in circumstances where people are significantly disadvantaged by a change in their conditions the matter can be resolved. If the noble Baroness wishes me to elaborate further, I shall do my best to explain it to her in writing so that she has something more positive than just a few scattered notes from which I am addressing her.

Amendment 19 would have the effect of creating many unnecessary bail hearings in the tribunal, increasing the inefficiency and complexity of the system. An individual can still apply for immigration bail at any time or challenge the legality of their detention by way of judicial review. A significant number of individuals are released on bail by the Home Office without the need for a bail hearing—we have just heard examples of why that is so—and so to mandate a requirement in primary legislation to require bail hearings to take place will unnecessarily increase the number of hearings and will slow the system and add complexity.

Amendments 20 and 21 would make two changes. First, they would limit judicial discretion to maintain detention of those who are suffering from mental health concerns or of those who are under 17 where the judge considers immigration detention remains appropriate for their own or, in the case of those with mental health concerns, others’ protection. Secondly, the amendments would remove the requirement for repeat applications made within 28 days of a previous application where there has not been a material change in circumstances, made under the bail provisions in Schedule 2 to the Immigration Act 1971, to be decided without a hearing.

Published guidance provides that certain categories of people are considered unsuitable for detention in the first place unless there are very exceptional circumstances in play. Unaccompanied young people under the age of 18 and those suffering from serious mental illness which cannot be satisfactorily managed within detention are specifically listed as case types that should be detained only in very exceptional circumstances. However, there will always be cases with very exceptional circumstances which mean that detention is appropriate. An example may be when it is necessary for detention to continue while an individual is being or waiting to be assessed or awaiting transfer under the Mental Health Act. We may also need to hold unaccompanied children where, for example, it is in the public interest because of a risk of reoffending or a risk to national security. They may also be held for a very short period either on arrival pending collection by social services or when we are trying to remove them. In any decision to hold an unaccompanied child, we will consider our duty to safeguard and protect the welfare of children.

The noble Lords’ amendment would prevent a judge in a bail hearing from considering if very exceptional circumstances are in play and would require judges to release individuals even where there is the real possibility that this will put them into a more vulnerable situation or where they clearly pose a threat to themselves or others. Amendment 21 seeks to remove the requirement for the Tribunal Procedure Committee to change the rules to require repeat applications to be disposed of without a hearing, thus undermining the Government’s proposals. It would also allow the current inefficient bail processes to remain in place.

However, I have listened to the points made by noble Lords in this debate. It has been a good debate about a very important aspect of the provisions of the Bill. I will consider those points before we return on Report. In the mean time, I ask noble Lords not to press their amendments.

Immigration and Nationality (Fees) (Amendment) Order 2014

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 28th January 2014 Grand Committee

[Lord Taylor of Holbeach]

I am grateful for the contributions from the noble Lord, Lord Bilimoria, and the noble Baroness, Lady Smith of Basildon. It is helpful to have an opportunity here to discuss some of the detail that lies behind this. The more exciting event perhaps follows when the level of fees is discussed, but this is the framework against which we might discuss those matters.

The noble Lord, Lord Bilimoria, referred to queues at airports. Certainly from my own experience, while queues are still a feature, they are nowhere near as great a feature as they were. None the less, there will be people who wish to avoid any queueing and, for them, a premium service facilitates that. Part of the reason for fee-charging is to make sure that income generation is available to help resource UK Visa and Immigration, which is the body responsible for this aspect.

The noble Lord asked why we had not joined Schengen. This is a matter that frequently comes up in debate. Our view is that, while we can work as closely as we can with Schengen, we need to protect our own borders—that has been a policy decision under this Government and the previous Government—and we should continue to do that.

We take note of the level of student fees. We are well aware of the pressure that people wishing to come from India are under because of the fall in the purchasing power of the rupee. It is quite right to say that the number of students coming here from that country has fallen. We regret this, but this does not challenge our overall policy because student numbers from elsewhere in south-east Asia and China are up and, overall, the number of overseas students is increasing. I expect, and as the noble Lord rightly suggested, that this matter will feature in debate when the Immigration Bill arrives in this House. Indeed, the noble Lord, Lord Hannay, has already advised me that he intends to raise it.

Exit checks are included in the Immigration Bill and will be debated as part of that. I think that it is well known that it is the Government’s intention to introduce e-Borders where possible.

I shall take up the noble Baroness’s invitation to write. I shall include the noble Lord, Lord Bilimoria, in that and place in the Library a copy of anything that I am not able to answer on my feet here today. I hope that I have covered the majority of the issues that the noble Lord mentioned.

I should say that the cost of production of a UK visa is £136; the fee charged is £80. We are still a long way from recovering costs on student visas, for example. However, we are in a competitive market and we do not wish to have a fee level that discourages people from coming to study here.

I have a note on the contractors, which the noble Baroness, Lady Smith, chose to ask about. Overseas visa applicants can choose to take up a number of added-value premium services provided by processing partners on a commercial basis alongside their application. Many of these services have been offered on a small scale and developed over time. We plan to expand these services, so it would bring greater clarity and transparency to have fees. All these services are set out in the legislation. I think the noble Baroness was asking about the nature of the arrangements with contractors. It may be advantageous to write to her on that point.

[Baroness Smith of Basildon]

I must clarify my question: I was probing further on the nature of the arrangements. Will any new services be undertaken by contractors that are currently undertaken not by contractors but by the Home Office?

[Lord Taylor of Holbeach]

We have two principal contractors at the moment, VFS Global and CSC. These were retendered in 2013. From 2014, there will be two new contractors. VFS Global is reinstated but Teleperformance UK has been re-engaged. These were open-tender contracting arrangements. However, if the noble Baroness would like more information on them, I am prepared to write to her about the services they supply. I will make sure that that is done. I have some of the information here.

[Lord Bilimoria]

I thank the Minister for giving way. I wish to make two points. He said that the number of overseas students has increased. However, if I may correct him, according to the Times Higher Education Supplement of 16 January, the number of non-EU students at UK universities fell by 1% last year—the first such decline ever recorded. In the Government’s defence, the noble Baroness, Lady Smith, asked if there had been consultation. My understanding is that targeted consultation took place.

[Baroness Smith of Basildon]

My point was that it has not been published and we were not able to see it before the order came before us.

[Lord Taylor of Holbeach]

I will comment on the consultation after I have described the services. The services provided by the contractors are priority visa services, user-pay visa application centres, prime-time appointments, passport passback, mobile clinics and international contact centres, so there are a variety of things, all designed to facilitate people’s applications. What goes on under these headings is probably best put in the letter rather than my reading it all out.

I must correct myself. I said that the £80 fee is for a short-term study visa; it is actually £298 for the points-based system, but the comments that I made still apply.

The Government held a limited consultation on this. There had been a previous consultation, as my honourable friend Mark Harper announced yesterday. A full public consultation took place in 2009-10 on the whole business of charging and a more limited consultation was carried out. We received 78 responses, mainly from representative bodies. The document will be published. I will ensure that we write to the noble Baroness with details of the consultation and, indeed, the Government’s response to it as soon as it is available.

I say to the noble Lord that we do not want to bandy figures about but the Government’s intention is clear: we do not want to impede students coming to this country. Our figures show that sponsored visa applications for university students rose by 7% in the year ending September 2013. Genuine students are indeed welcome to the United Kingdom.

As I said, I may not have been able to cover all the ground. The noble Baroness mentioned firearms. One day I hope to shoot her fox on that particular issue, but not at this juncture, so I have to take her chiding in good heart. I hope that noble Lords will allow me to write on the detailed questions I have been unable to answer.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 27th January 2014 Lords Chamber

[Baroness Smith of Basildon]

It may well be. I sometimes think that when we use acronyms, people have not got a clue what we are talking about. However, should it not be an injunction to prevent anti-social behaviour rather than an injunction to prevent nuisance and annoyance?

[Lord Taylor of Holbeach]

I have an answer to the noble Baroness’s question, which I know about because I asked the same question at one stage. The title of Part 1 of the Bill—a title covering the whole of Part 1—will be revised in advance of the Act being published, following Royal Assent. Apparently, this is quite customary. It is worth making it clear that the title of Part 1 does not represent the formal name for the injunction and that whatever name is chosen will not affect the meat and substance of what it seeks to do.

Modern Slavery

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 22nd January 2014 Lords Chamber

[Lord Taylor of Holbeach]

I am very interested in the right reverend Prelate’s suggestion. As my experience before I came here was very much involved in the supply chain, I know how important it can be to have companies interested and integrated in good practice at every level. This is an area where we are looking to work with the supply chain to drive out slavery in supply at cropping and processing levels in food cases, and in the manufacturing industry.

[Baroness Smith of Basildon (Lab)]

My Lords, in Committee on the Children and Families Bill, the noble Lord, Lord McColl, proposed that a guardian should be appointed for child victims of human trafficking, whether for sex or slavery. The Government rejected that. Will the Minister explain why, and will the Government reflect on their decision and look again at whether there should be guardians for child victims of human trafficking?

[Lord Taylor of Holbeach]

Yes, I acknowledge that the noble Baroness is right; the child guardian idea does not form part of the Modern Slavery Bill at present, but we are examining it. The Security Minister, my colleague James Brokenshire, will also meet the Children’s Society and the Refugee Council, which were co-authors of the independent review of practical care arrangements for trafficked children, to discuss their findings. We want to make sure that the arrangements we set in place, both through legislation and the corresponding action plan, really do tackle this problem.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 22nd January 2014 Lords Chamber

[Baroness Smith of Basildon]

My Lords, noble Lords will recall that in Committee, we made the point that injunctions for nuisance and annoyance were certainly very helpful in certain circumstances, but not appropriate in every case. That is now the position adopted by your Lordships’ House, with the amendment to maintain the more serious definition of harassment, alarm and distress and retain the definition of nuisance and annoyance only for specific circumstances, as already provided in housing law, where that definition is entirely reasonable.

In Committee, we argued that ASBOs should be retained because, first, the higher threshold—harassment, alarm and distress—recognises the seriousness of the issue and how devastating anti-social behaviour can be. Secondly, there is the effectiveness and understanding that has grown up around the issue. I appreciate that there were teething problems with ASBOs initially and that there is always room for improvement. But after around 15 years, the various agencies involved know and understand how to use anti-social behaviour orders and could, I think, best advise on any improvements to be made. Thirdly, there is the seriousness of the issue which, given how devastating anti-social behaviour can be, meant that a breach became a criminal offence.

We now await the Government’s response, at Third Reading or later, to the rejection by your Lordships’ House of the definition of “nuisance and annoyance” from every situation. However, the penalties, sanctions and requirements for breach of an IPNA still remain, even with the new definition. It is that area which I seek further clarity on because it is so different from the ASBO penalty. We need an assurance from the Minister that the sanctions will be meaningful and have the effect that the Government claim they will.

The Minister, the noble Lord, Lord Taylor of Holbeach, said in Committee:

“By moving away from focusing solely on enforcement and getting agencies to work with young people, we can get these young people’s lives back on track. Positive requirements”—

part of the IPNA procedure—

“which are absent at the moment, are integral to this move and to the Bill. Front-line professionals not only know about them, they welcome them. When applying for an injunction agencies will consider whether positive requirements can help address the underlying drivers of the anti-social behaviour. They will be better than individual support orders because positive requirements will be more flexible and can last for more than six months”.—[Official Report, 18/11/13; col. 820.]

What causes us great concern is that the Government have already set about dismantling some of the early intervention, and therefore the positive measures, which were in place in part to tackle anti-social behaviour. For example, the Sure Start centres were established to support any family which needed that support or help but have been decimated. Current estimates are that more than 600 Sure Start centres have been lost across England and Wales. I was told last week that even one in Basildon, where I live, and others in other parts of Essex are being closed. Those centres were important tools to help and support families with young children and in the prevention of anti-social behaviour.

One of the early indicators of the Government’s priorities were the cuts to early intervention grants and programmes, so when the Government rely on positive requirements that will accompany the new injunctions it is extremely worrying that they have said, as the Minister said in Committee, that:

“The Bill makes no provision for the funding of costs”.—[Official Report, 18/11/13; col. 823.]

I refer to pages 26 and 27 of the Explanatory Notes, which talk about the injunctions and give examples of what the positive requirements would be. They could be prohibitions: for example, not being in possession of a can of spray paint in a public place. However, the ones I am specifically concerned about and would welcome in most circumstances say that:

“Requirements would be designed to deal with the underlying causes of an individual’s anti-social behaviour and could include, for example, attendance at an alcohol or drugs misuse course or dog training in the case of irresponsible dog owners”.

The notes go on to say that these have to be monitored and that, before applying positive requirements, the court has to receive evidence on the suitability and enforceability of any requirement. That comes with some costs. Unless the Minister thinks that will be cost-neutral, there are costs associated with those requirements.

If the Government are going to replace a criminal sanction with a requirement, positive or otherwise, they have to be confident that these will be effective, be complied with and be monitored to ensure compliance, otherwise the Government will take action. To breach the terms of that injunction’s positive requirements is a very serious matter; it is punishable by prison. However, if the Government do not make it easy for somebody to comply with the positive requirements laid upon them because there is no support, help or funding for that, they will be moving quickly back to a position where a breach of that injunction is imprisonable and becomes a very serious matter. However, it might not be that person’s fault if they are not able to comply because the Government are not providing the funding for it.

I have some questions for the Minister and would like to know whether he can give me the necessary assurances. First, are the funding and resources available for the requirements to be undertaken? Secondly, are they available for the requirements to be appropriately and accurately monitored? Thirdly, are they also available to take action if that injunction is breached?

Unless those reassurances are forthcoming, there is a real danger that whatever the test for anti-social behaviour—whether it is nuisance and annoyance or harassment, alarm and distress—there will be no effective action against those committing such behaviour. We want those assurances because I would hope that in the public interest we all wanted serious measures that tackled anti-social behaviour and for those measures to be effective. Without such guarantees, it would be totally wrong to scrap what exists and start all over again. I beg to move.

[Lord Taylor of Holbeach]

My Lords, I am grateful to the noble Baroness, Lady Smith of Basildon, for tabling this amendment. It brings us back once again to the real failings of one of the key powers introduced by the previous Government to tackle anti-social behaviour.

This Government have been clear that, in developing our reforms, the police, local councils, social landlords and others must focus their response to anti-social behaviour on the needs of victims and put them first. As part of our consultation on the new powers, we asked victims what they want. They told us three things: first, they want their problem to be taken seriously; secondly, they want an efficient service and quick response; and, thirdly, they want the problem to stop and for it not to happen again. That is what this Government also want. That is why we want to support agencies by giving them effective new powers to do this. However, ensuring that the right powers are available also means removing or reforming the existing powers where we know that they do not work as well they should, particularly the anti-social behaviour order.

Front-line professionals have recognised the ASBO’s failings, and this is demonstrated by the most recently published statistics from the Ministry of Justice. Since 2005 there have been year-on-year falls in the number of ASBOs issued, with 1,329 issued in 2012, a decrease of 6% from the 1,414 issued in 2011 and a decrease of 68% since 2005. That is not because ASBOs have been so effective in preventing anti-social behaviour that they are no longer needed.

I made this point in Committee when the noble Baroness tabled a similar amendment, but it is worth repeating: up to the end of 2012, 58% of ASBOs were breached at least once and just over 43% were breached more than once. If an ASBO is breached, on average it is breached five times. Perhaps even more shocking are the figures relating to young people. As I also informed the House in Committee, the breach rate for under-18s is a staggeringly high 69%. To put it another way, over two-thirds of ASBOs against young people are breached. Those are the statistics. Those are the facts. They are certainly not teething issues, as the noble Baroness, Lady Smith, suggested; the ASBO is a fundamentally flawed device for tackling anti-social behaviour.

It is also a story of abject failure for under-18s who, for whatever reason, have taken the wrong path in their lives. ASBOs have unduly focused on enforcement, criminalising young people with insufficient emphasis on helping young people subject to ASBOs to deal with the reasons for their anti-social behaviour and turn over a new leaf. That is why this Government want to see the back of ASBOs and give the police, local councils, social landlords and others more effective powers to enhance their ability to tackle anti-social behaviour and protect the public.

In her evidence to the Public Bill Committee, the chief constable of Thames Valley, Sarah Thornton, made the point forcefully:

“The fact is, the experience has been that the ASBOs have been quite bureaucratic, in terms of securing them, and maybe not as effective at tackling the problem as we hoped”.—[Official Report, Commons, Anti-Social Behaviour, Crime and Policing Bill Committee, 20/6/13; col. 71.]

The fact is that ASBOs are an all too visible reminder of a broken system which the new powers are designed to fix. As I said in Committee and indeed in our deliberations earlier on Report, the injunction under Part 1 and the criminal behaviour order provided for in Part 2 form major planks of our reforms to give front-line professionals the swift and more effective powers they need to protect victims and communities. The injunction will enable agencies to act more quickly, with its lower civil standard of proof, and will not overly concentrate on enforcing prohibitions or criminalise those who breach it—unlike the ASBO. However, the criminal behaviour order will be available for more serious cases, where there is a criminal conviction. In these cases, it is right for tougher sanctions to be available on breach and, as with the ASBO, breach will be a criminal offence. However, both powers can include positive requirements to help individuals to address the root cause of their anti-social behaviour and help them turn their lives around.

Public Order: Busking and Live Music

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 21st January 2014 Lords Chamber

[Lord Taylor of Holbeach]

I do not intend to comment on the Camden case because it is subject to judicial review, as the noble Earl will understand. However, perhaps I can convey to the House the sentiments of the Mayor of London, who clearly believes that busking is an important part of street life in London. He is keen to encourage street entertainment and live music, not least because of the positive aspect it brings to the life of the city. As I have made clear, the Government believe that live music and street entertainment can play an important part in community life. The Government support the mayor’s position.

[Baroness Smith of Basildon (Lab)]

My Lords, I welcome the Minister’s responses and I think that the intention of the legislation is clear, but the noble Lord, Lord Clement-Jones, is on to something about the guidance. We all know that overzealous implementation of legislation can cause problems. Will the Minister respond to the noble Lord’s specific point about making things clear in guidance? When looking at the public spaces protection order, will he also consider guidance for community protection notices and dispersal powers because, with this whole new architecture of arrangements for dealing with anti-social behaviour in the Bill, guidance will be important to ensure that we do not have overzealous implementation?

[Lord Taylor of Holbeach]

I hope I gave my noble friend a positive response to his request. The Government do not start from the position that busking requires regulation and control. Busking can brighten our lives; local action is necessary only to curb any excesses. I think that noble Lords will understand that that can occur. It is not about top-down government; it is about local authorities using the powers available to them. The guidance will certainly make clear the Government’s position on busking and street entertainment.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 20th January 2014 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I am sure that the Minister did not think I would pass up this opportunity. This is an interesting amendment. I was quite surprised to hear the noble Lord, Lord Blair, say that the Minister was going to resist the amendment, because when I read it, especially after our previous debate, I assumed, possibly wrongly, that it reflected what the Minister had said in previous debates and therefore set out the position for clarity in the Bill. Clearly, nobody in your Lordships’ House has criticised in any way the possibility of a police officer from overseas, suitably qualified, becoming a chief constable or the Commissioner of the Metropolitan Police. That is not at issue.

What is at issue is that they should be subject to the same conditions and rules as any member of the UK police force. I am surprised if the Minister does not think that there should be an explanation or guarantee of some form of appropriate security vetting, in the same place as the Bill says that a police officer from an approved overseas police force can be appointed. The change is being made in the Bill; I would have thought, therefore, that any qualification to that change should also be made in the Bill.

I entirely agree with the comments of the noble Lord, Lord Condon, and I hope that the Minister will be able to give some reassurance on this, and will take it away and come back at Third Reading with something that is appropriate and addresses the concerns that have been expressed. I do not think that it is unreasonable. The noble and learned Lord, Lord Hope, made a very strong point about public confidence. It serves public confidence well to understand that if a police officer comes from overseas, particularly in the role of commissioner, which is a counterterrorism role unlike any other chief constable role in the entire country, they will be subject to the same kind and level of vetting as any police officer taking the job from within the UK.

I hope that there has been some misunderstanding or error in the report that the Minister intends to resist the amendment. He has his piece of paper there; I hope it does not say that. I hope he will want to think again and come back. I think that he will have got a sense from your Lordships’ House that there is widespread support for what seems to be a very moderate clarification, and I hope that he can accept it.

[Lord Taylor of Holbeach]

My Lords, this has been a useful debate. I see this as an area of principle. I somewhat regret that the noble Lord, Lord Blair, addressed the issue ad hominem; I think that that was a little unnecessary. The Government take this matter seriously—and take his amendment seriously, too. As I said when responding to similar concerns in Committee, I agree that it is essential that those who are appointed as police officers undergo vetting appropriate to the role they are undertaking. I reinforce that view today. I am grateful to the noble Lord for reflecting on that debate and, in constructing his new amendment, taking the arguments I presented into consideration.

However, while vetting is vital, I do not believe that primary legislation is the place to set out the level of vetting. It is not the place where the level of vetting should be determined. Nor do I see the case for singling out just one chief officer post—namely that of Metropolitan Police Commissioner. As I said in Committee, no Home Secretary—also an appointee of Her Majesty—would make an appointment to the post of Metropolitan Police Commissioner that would put national security at risk. Furthermore, naming,

“developed (or equivalent) security vetting”,

as the requisite standard in primary legislation could be a hostage to fortune. Were the name or criteria for this type of vetting to change, this requirement could become outdated.

However, I have listened very carefully to the arguments that the noble Lord put forward, and there may be some merit in setting out vetting requirements in regulations. It is right for the College of Policing, as the body that sets the standards for policing, to take the lead role in considering whether to propose such regulations. As noble Lords will recall, Clause 111 makes statutory provision for its formal role in the preparation or approval of regulations. I will undertake to draw this matter to the attention of the college.

The noble Lord also highlighted the possibility that in a few years’ time we could find that all the chief officer equivalent posts in the Metropolitan Police, and indeed in other forces, could be filled by persons who have previously never served as a police officer in the UK. I have to say that such a possibility is, at best, theoretical, and I think that the noble Lord would admit that. Under the existing law, it could already be the case that every officer from commander through to deputy commissioner could be a person with no previous policing experience in the UK. That was not the case when the noble Lord, Lord Blair, was commissioner and, in practice, I see no possibility whatever of that happening in future.

We simply do not need legislation to preclude such a possibility. It has never been a legal requirement for the Deputy Commissioner of the Metropolitan Police or for deputy or assistant chief constables in other forces in England and Wales to have been a constable in the UK or a British national. As I indicated, these are not really matters for primary legislation; they are matters that the College of Policing may wish to advise on as matters for regulations—or they are matters that can be stipulated when a particular appointment is advertised. We remain of the view that an amendment to the Police Act 1996 is not required and, accordingly, I cannot undertake to bring forward a Third Reading amendment.

It will be for the Home Secretary to make decisions on the eligibility of applicants for appointment as Commissioner or Deputy Commissioner of the Metropolitan Police, and for the commissioner and chief constables in every other force to decide in relation to other senior posts. It is right that the Home Secretary and police chiefs should be trusted to decide who is best qualified and most appropriate to fill those roles. I cannot undertake to bring forward a Third Reading amendment on this issue, as I said.

I hope that the noble Lord, Lord Blair, will accept that the issues he has raised are not new. They would have arisen whether or not Clause 128 was in this Bill. He is right to raise these matters, but questions about the appropriate vetting of senior officers and about the relevant previous experience of such officers on appointment should not be a matter for primary legislation. However, I will draw this debate to the attention of the College of Policing. It may be that the college will come forward with regulations in future. Accordingly, I invite the noble Lord to withdraw his amendment.

--- Later in debate ---

[Baroness Smith of Basildon]

I rise briefly, having supported the noble Lord, Lord Marlesford, when he raised this issue in Committee and at Second Reading. He is wise not to rely on the Private Member’s Bill route at present, since we have a number of Fridays when we are discussing just one Bill, which crowds out every other Bill that noble Lords wish to bring forward. I agree with the noble Lord, Lord Deben, about “Better not, Minister”, or “Better, Minister”. I think that the phrase in the “Yes Minister” series—which I heard myself as a Minister—was, “That’s very courageous, Minister”, which, from civil servants, is not praise. I hope that the Minister has not had to be too courageous in accepting the principle behind this amendment.

I want to raise a couple of thoughts, because this is a big issue. The cost to councils is enormous. I come from a generation that came home from school or from shopping with our hands stuffed full of any litter we had had during the day. Sadly, that is not always the case now. Sometimes the methods used are not entirely appropriate, although the problem has to be dealt with.

I have one concern. As I understand it, the Minister will bring forward an order-making power at Third Reading, but I take the comments from noble Lords opposite that we need assurance that the order will not be delayed and will be fairly swift. We all know how long orders can take. Given that they are unamendable—though they have to be consulted on—it should not take too long. If the Minister can give assurances or any guidelines on the timescale in which he expects to bring the order forward, that would be helpful. Otherwise, I am delighted with the news that the Minister accepts the principle of this amendment.

[Lord Taylor of Holbeach]

My Lords, I have sat listening to noble Lords’ expectations thinking, “No pressure, then”, so I hope that I do not disappoint noble Lords. I am grateful to my noble friend for bringing forward his amendment. All noble Lords share his concern about littering; indeed, as all who have spoken in this debate have said, it is anti-social, causes a nuisance, is an eyesore for the communities in which we live and can cause harm to the environment and, potentially, other road users. It is unacceptable behaviour and should be treated as such.

My noble friend describes his amendment as a simple measure to “fix” a problem. I have not heard the words quoted by my noble friend Lord Deben—“Better not, Minister”—in all my time, albeit brief, in ministerial office, although he of course had a longer time in office and perhaps had to deal with slightly more weighty matters than I have. When my colleagues who work with me on this Bill talk to me, they demand not “courage” or sensitivity to other considerations that they do not believe to be justified; I find them remarkably supportive and they have been very supportive on this measure.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, we have two reasons. First if the noble reads my comments in Committee, he will see that we gave further information on that. Secondly, we take the view as outlined by David Anderson in his report, and we think that was a reasonable position to take.

[Lord Taylor of Holbeach]

My Lords, the noble Lord, Lord Pannick, my noble friend Lord Lester, the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Kennedy, have all made very valuable speeches on this issue, addressing the fundamental principle of Schedule 7 to the Terrorism Act 2000 through their amendments: when a person may be detained and when their personal electronic devices may be examined.

I preface my remarks by noting that we continue to await the judgment of the High Court in the judicial review proceedings brought by Mr David Miranda, following his examination under Schedule 7 in August last year. Although the independent reviewer of terrorism legislation, David Anderson QC, who has been referred to several times in the debate, has made some recommendations in relation to Schedule 7, we will not have the benefit of his report on the detention of Mr Miranda and any further recommendations he may make until after the judgment is handed down. Consequently, the debate on Schedule 7 will continue beyond our proceedings today and beyond this Bill. I am certain that we will return to these matters in detail in the future. I am grateful to the noble Baroness, Lady Smith, for agreeing to this approach and I commit to keeping her informed of the Government’s approach to the issue.

Let me address the amendments before the House. I begin with Amendment 93B, which provides that a person “may not be detained” for examination,

“unless the examining officer has reasonable grounds to suspect”,

that the person is concerned with,

“the commission, preparation or instigation of acts of terrorism”.

The powers in Schedule 7 to the 2000 Act are for the purpose of determining whether a person appears to be someone who is or has been concerned with the commission, preparation or instigation of acts of terrorism. This is an examination of whether they appear to be. As I explained in Committee, examinations are not simply about the police talking to people they know, or already suspect, are involved in terrorism. They are about talking to people travelling to and from places where terrorist activity is taking place or emerging, to determine whether those individuals appear to be involved in terrorism—whether that is because they are or have been involved, will become involved or are at risk, either knowingly or unknowingly, of becoming involved.

The Government maintain the view that introducing a reasonable suspicion test for the exercise of powers under Schedule 7, both to detain individuals and to search electronic devices, would undermine the capability of the police to determine whether individuals passing through ports, airports and international rail stations appear to be involved in terrorism. That view is shared, as some noble Lords have commented, by the independent reviewer of terrorism legislation, who explained to the Home Affairs Select Committee:

“My exposure at a variety of ports to the operational constraints under which ports officers operate inclines me, on balance, towards rejecting the reasonable suspicion standard as a condition for detention”.

Mr Anderson highlights:

“Terrorists pose risks on a different scale to most other criminals: they have shown themselves capable of causing death and destruction on a massive scale”.

He adds:

“Active terrorists are not numerous, and not easily identified as such”,

and that a port environment suspicion may be,

“harder to substantiate objectively in the absence of specific intelligence”.

Those are important words, setting the background to the Government’s consideration of these matters.

I note that the Joint Committee on Human Rights accepts that, “the concerns which underpin” the independent reviewer’s,

“rejection of a reasonable suspicion standard are entirely justifiable concerns”.

For his part, the independent reviewer has recommended that detention be permitted only, and continue only, when an officer is satisfied that there are grounds for suspecting that the person appears to be concerned with terrorism. In Mr Anderson’s view, this represents,

“the maximum safeguards consistent with the continued productive operation of these vital powers”.

There have been two or three references to the discriminatory effect of these powers on ethnicity. Perhaps I should tackle this one. As the independent reviewer of terrorism legislation said, if the powers are operated properly, the ethnic breakdown of those examined will correspond not with the ethnic breakdown of the general population or the travelling population, but with the ethnic breakdown of those involved with terrorism. I believe we have to accept that.

The Government welcome the debate to find an appropriate threshold for the exercise of powers to detain individuals, and to make and retain a copy of electronic data under Schedule 7. However, in the specific context of port and border controls to determine whether individuals appear to be concerned with terrorism, reasonable grounds for suspicion is not an appropriate threshold. Ensuring an appropriate threshold that is clear in its meaning and provides an effective safeguard in its distinct context is a matter the Government continue to reconsider. We shall reflect further on the recommendation that the independent reviewer has made. However I am not persuaded that it would be right to introduce a test of reasonable suspicion, as Amendment 93B seeks to do.

The effect of Amendments 93A, 93C and 93D would be to restrict the duty of a person being questioned under Schedule 7 to disclose anything in relation to data stored on a personal electronic device unless they are detained. They also restrict the power of an examining officer to search things in relation to data stored on personal electronic devices unless the person being questioned is detained. I have tried to reassure my noble friend Lord Avebury that the power to search for and examine property, including personal electronic devices, is an essential part of the Schedule 7 powers. The independent reviewer observed—I make no apology for quoting him again—that,

“the Schedule 7 evidence which has assisted in the conviction of terrorists … consists of physical possessions or the contents of mobile phones, laptops and pen drives”.

These amendments are intended to complement Amendment 93B and to require reasonable grounds for suspicion to delay a person and consequently to examine their personal electronic devices. I have set out the Government’s position on the reasonable suspicion threshold.

The independent reviewer has recommended that the power under new paragraph 11A to Schedule 7—to make and retain copies of data from personal electronic devices—be exercised only if a senior officer is satisfied that there are grounds for suspecting that the person is concerned with terrorism. As with the threshold for detention, the Government are considering additional safeguards for examination of personal electronic data. We shall reflect further on this, both on the independent reviewer’s recommendation and alternative enhanced safeguards—for example, to provide for a review officer to approve any decision to examine data.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 14th January 2014 Lords Chamber

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

My Lords, sexual offences against children are a serious crime and one of the utmost concern to the Government. I thank the noble Baroness, Lady Smith, for tabling this amendment to allow the House to debate this important issue today.

The Government are determined to do everything they can to protect the public from predatory sexual offenders. The United Kingdom has some of the toughest powers in the world to manage the risks posed by sex offenders, but we are committed to ensuring that the police and other enforcement agencies have the right powers to protect the public from sexual harm.

It may be useful to noble Lords if I outline some of the powers already available to the police to tackle the sexual exploitation of children. As the noble Baroness, Lady Smith, has said, in particular, the Sexual Offences Act 2003, already gives the police and the courts the power to close premises on a temporary basis where there are reasonable grounds for believing that they are being used for certain sexual offences involving a child and that closing the premises is necessary to prevent the commission of those offences.

Under that Act, service of a closure notice by the police will prevent anyone entering or remaining on the premises, unless they regularly reside in or own the premises, until a magistrates’ court decides whether to make a closure order. If the court is satisfied that the relevant conditions are met, it can make a closure order for a period of up to three months. An application can be made for the closure order to be extended but the total period for which a closure order has effect may not exceed six months. The Sexual Offences Act closure notice and order therefore operate similarly to the closure power in the Bill, although they are targeted specifically at sexual crimes against children, which are listed in Sections 47 to 50 of that Act. These crimes all relate to the abuse of children through prostitution or pornography. In addition to their duty to investigate criminal offences, the police have a statutory duty to safeguard and promote the welfare of children, and have powers to enter premises and remove children to ensure their immediate protection if they believe they are at risk of significant harm.

I recognise—the noble Baroness is correct to draw this to our attention—that there are concerns that the powers in the Sexual Offences Act do not go far enough. As the noble Baroness has indicated, Home Office Ministers have been in recent correspondence with the police and crime commissioner for Greater Manchester, Tony Lloyd, on this issue. Tony Lloyd has pointed to cases where takeaways and other premises could be used for grooming children.

As I have said, the closure powers in the 2003 Act relate only to premises used in connection with prostitution or pornography, so there may indeed be a case for extending their reach. As my noble friend Lady Hamwee has pointed out, I believe the 2003 Act rather than the closure powers in this Bill, which relate to anti-social behaviour, is the proper place to address this issue.

I suggest to the noble Baroness, Lady Smith, that if she would be prepared to withdraw her amendment, I will undertake to give the matter sympathetic and urgent consideration in advance of Third Reading. I cannot, at this stage, as noble Lords will understand, give any commitment to bring forward a government amendment at Third Reading. However, I will let her know the outcome of our further deliberations in good time so that she can, if necessary, retable her amendment, or something similar to it, at that stage.

We all want to ensure that all possible action is taken by the police to protect children at risk of sexual exploitation. I share the noble Baroness’s determination to get to the bottom of this issue and, as speedily as possible, to plug any confirmed gap in the powers of the police in this regard. I hope that on this basis she will be content to withdraw her amendment.

[Baroness Smith of Basildon]

My Lords, I am extremely grateful to the Minister for his response in this regard. It contrasts quite starkly with the comments from the noble Baroness, Lady Hamwee, who seemed to be much against taking action in the Bill. However, his response—

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I am grateful to my noble friend Lady Gale and the noble Lord, Lord Trees, for bringing these issues before us for debate. We had a fairly lengthy debate on dogs in Committee. It was quite illuminating at certain points and also helpful in outlining the extent of the problem we face. Even since that debate took place there have been several quite dreadful attacks on people, with some serious consequences, which shows the need for strong action.

In Committee I acknowledged the seriousness of the problem and reported on the scale of the attacks. I do not intend to repeat all the figures. They are on the record and, in any event, they will have increased in the past couple of months. However, they are truly shocking, and, given that 23,000 postal workers have been attacked in the past three years, I wonder how many suffered delivering our Christmas mail.

Something the Minister said in Committee gave me cause for concern. I have no doubt that he is convinced that the Government’s actions will work. I was very pleased that in Committee he committed to reviewing the effectiveness of government measures, and I trust he is willing to confirm that review in your Lordships’ House. I think the noble Lord, Lord Redesdale, would also welcome a report back on how the Government’s measures are working if no amendment is agreed.

The Minister also said in Committee:

“I hope the Committee will agree that it is better for a dog owner to address the problem themselves rather than to be compelled to do so under the terms of a notice”.—[Official Report, 02/12/13; col. 106.]

It is precisely because some dog owners do not address the problem themselves that there is the need for a dog control notice. If every dog owner could be trusted to take the necessary action, no notices would be required. It is because so many owners are negligent in that regard, and dogs are able to attack people—or, as we have heard, other dogs or animals—that there needs to be further protection and further action. I believe that dog control notices are the way forward.

When a dog attacks a person or another dog, it may not be malicious on the part of the owner. I think I stressed that. It may be a lack of awareness, but the consequences are the same in either case. Dog control notices provide the ability for local authorities to take action to prevent such attacks. A wide range of organisations supported the introduction of dog control notices—the RSPCA, Battersea Dogs & Cats Home, the British Veterinary Association, the pet charity, Blue Cross, the Communication Workers Union and the Association of Chief Police Officers. I hope that the Minister will consider bringing this forward solely to try to address what I know he and the House regard as a serious problem. I agree with the noble Baroness, Lady Gale, that we hope to have a better response from the Minister and that he will give some ground on the issue of dog control notices. If not, can he indicate that the review he referred to in Committee will be reported to your Lordships’ House so we can judge the effectiveness of the existing legislation?

The noble Lord, Lord Trees, brings his professional expertise to this debate—for which we are grateful—with his Amendments 86B and 86C. I was shocked at the number of attacks he referred to on other animals and cats. I was not aware that it was so great. I think it reinforces the need for preventive measures and, undoubtedly, prevention is the preferable way forward. His amendments are helpful and I will be very interested to hear the Minister’s comments on them. The suggestion that he take them away and consider them and bring them back if he thinks there is merit in them and they can improve the Bill is very helpful and wise.

[Lord Taylor of Holbeach]

My Lords, this has been a useful debate. I thank the noble Baroness, Lady Gale, for bringing it back for us to consider, having had this debate in Committee. In a number of instances we are going over ground we have discussed before, but it is important that we try to set the Government’s position in some context. As noble Lords will know, I was a Minister in Defra—and, indeed, had quite a lot to do with some of the early talks about how to deal with dogs and the dangers that out-of-control dogs present not only to postmen and people visiting houses but to people going about their daily lives.

While it is true that some organisations, as mentioned by the noble Baroness, support dog control notices, it is similarly true that some do not—and it is by no means the case that the scales are weighted on one side of the argument. That aside—it is history really—the animal welfare organisations have all agreed to suspend their campaigns for dog control notices and to work with us to ensure that the same aims may be achieved through the community protection notice.

I very much welcome this constructive approach from the sector. It is a genuine partnership, working with the Government to ensure that measures may be as effective as possible. That really answers the noble Baroness’s point as to how the facilities offered by the community protection notice will be publicised and how it will be implemented. It will be implemented with the co-operation of the dog charities, and I expect this dialogue to continue after implementation; I know my colleagues in Defra will listen to these organisations on the question of how effective the implementation is.

The noble Baroness, Lady Smith, suggested a report for Parliament. I am sure that this House will readily take to a debate on this subject a few years hence, when the new regime has had a chance to have an impact. I am confident that it would be a positive debate; I would like to think so.

As I said, Defra officials are in regular contact with the national policing lead on dangerous dogs, as well as other units involved in this work, so that the new measures may be as useful and as user-friendly as possible in cases of irresponsible dog ownership. Reference has been made to the guidance that has been produced for practitioners. The Local Government Association, representing those who will be using the measures—they are likely to be the enforcers—has been consistent in its message that it does not see the need for an additional power specifically in relation to dogs.

The Government agree with the underlying aim of the amendment: to hold irresponsible dog owners to account and, more importantly, to change their behaviour. However, we have already provided the necessary powers in the Bill, so it remains the case that we cannot support the amendment. Effective use of the provisions in the Bill should see an increase in responsible dog ownership and a reduction in the number of dog bites and dog incidents.

I make it clear that the community protection notice can do all that the dog control notice proposed in the noble Baroness’s amendment can do. In fact, I will be so bold as to go further and say that it can do more, because it avoids the prescriptive nature of issue-specific notices and allows practitioners to respond to all manifestations of behaviour that negatively affect the community. Focusing on the impact of the behaviour ensures that dog owners are not unjustly penalised and that communities are protected from existing, as well as new, forms of irresponsible dog ownership.

The community protection notice provides a mechanism so that officers faced with a case of irresponsible or anti-social dog ownership may decide on the most effective way to stop and prevent future recurrences of that behaviour. It may be by requiring the dog to be on a lead in certain areas, fixing inadequate fencing, attaching a letterbox guard or requiring the owner to attend training classes. The officer, in consultation with welfare experts where necessary, may use the notice to educate owners and increase responsibility.

It may be helpful to provide an example to noble Lords of how the CPN could work in practice. Many noble Lords will have heard about terrifying and unacceptable incidents in which postal workers have been attacked or regularly have to face the unpredictable and, at times, out-of-control behaviour of dogs at certain properties. Clause 98, in amending the Dangerous Dogs Act 1991, corrects the current legal lacuna and will ensure that the Crown Prosecution Service can take forward prosecutions where postal workers and others are injured, or indeed fear injury, by a dog while on private property.

However, let us suppose that the threshold is not met; perhaps the dog is out of control but not dangerously so, as defined by the 1991 Act, but is nevertheless barking excessively at the postal worker or jumping up at the letterbox. I think that all noble Lords have had enough doorstep delivering experience to know exactly what we mean. Under the new powers we are introducing, the postal worker may alert the authorities and report the behaviour. I should take a moment to congratulate Royal Mail on its sophisticated reporting and logging systems for these incidents, which have proved useful in tackling such irresponsible ownership.

The local authority may investigate and, if it is satisfied that the test for the community protection notice has been met, serve a written warning that such behaviour is evidently detrimentally affecting the quality of life in the locality—in this case, that of a postal worker, although other people may be affected. An officer from the authority may wish to visit the address and discuss the issue with the owner, or may simply post the order as a warning to the owner. The warning would state that the officer considers the threshold to have been met and would detail the offending behaviour. It would make clear that the officer will serve a community protection notice should the behaviour not change or stop, and that, over time, this may result in prosecution and a criminal record.

For many owners, this level of intervention will be sufficient, and the engagement from an officer will encourage the owner to consider the opportunities for better education and training. However, if the warning is not heeded, a community protection notice could be served, which may make a number of requirements of the owner: for example, that they attend dog training classes with their dog and/or attach a letterbox guard or similar item, as I have already illustrated. The owner will be provided with the opportunity to become more responsible and the postal worker will be better protected. Should the owner attend training classes, the dog’s welfare may also be improved. All this can be achieved with a community protection notice, fully negating the need for an additional power in the form of a dog control notice.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 14th January 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords—

[Baroness Smith of Basildon (Lab)]

I understand the noble Lord’s eagerness to accept this, and it may have something to do with the hour, but, just occasionally, I have a few words to say on the proposals put forward by my noble friend Lord Harris of Haringey. I must admit that when I first looked at these amendments I had a slight concern about the role of the community safety partnerships and their responsibilities. My own CSP has seen a massive cut in its budget and its capacity to deal with some of the issues before it. But when resources are short, planning is most essential. It would be extremely useful to have the kind of co-ordination function that is laid out in the amendments.

I am sorry that the Minister laughed when my noble friend said how helpful he was trying to be. He has been accused of many things during the course of proceedings on the Bill. He was accused of being mischievous when he was trying to be helpful. He put on record that he is trying to be helpful now and there was hilarity from the Benches opposite, which I genuinely think is most unfair. This is the kind of amendment that sets in place how the objectives of the Bill can be achieved by those responsible for implementing it.

There are new powers in this Bill. It is important that all the partners understand their role and the expectations. I give one example. The noble Lord will recall that I proposed amendments in Committee on dispersal orders. One of the issues is that there is no longer a responsibility on the police to consult the local authority when issuing dispersal orders. The new orders that the Government are proposing are wider and can last longer than the ones in place at the moment. There is also no obligation to consult the local authority, but the guidance says—I cannot remember the exact phraseology—that there is the opportunity to discuss or that that is expected or is likely. Before any dispersal orders were issued, would it not be helpful if discussions took place within the community safety partnership about what the expectations would be when it came to the point of issuing one? It is fitting to have that kind of co-ordination, to know what the expectations and responsibilities are, to ensure that the legislation being put forward by the Government has an impact, that it does not disappear into the ether somewhere but can be worked on. I would expect that this is the very least that the Government would expect—to have this way of taking the new legislation into the existing framework.

I certainly accept my noble friend’s comments that he is seeking to be helpful. It is a very helpful amendment. I trust that the Minister will be able to take that on board.

[Lord Taylor of Holbeach]

I thank the noble Baroness for that comment. Indeed, I thank the noble Lord, Lord Harris of Haringey. I am quite prepared to accept that he has a helpful side to his nature. I am very grateful that he has presented these amendments. I sense the spirit in which he has tabled them. My noble friend Lady Hamwee is always helpful. I am grateful for her contribution to this debate.

I will talk about the issue in general and then talk about how it happens specifically. This is about how police and local councils will use the powers running right through Parts 1 to 5 of the Bill. I will deal with Amendment 90 first and then I will come on to Amendment 91. I have listened to the noble Lord’s comments on the amendment. Although I appreciate the helpful intent behind the amendment, I do not believe that it is necessary. As the noble Lord will be aware, Sections 5 to 7 of the Crime and Disorder Act 1998 already require local authorities and the police to co-operate with each other and other local agencies in formulating and implementing strategies to reduce crime and disorder. The noble Baroness, Lady Smith, is absolutely right. The Government expect local authorities and the police to co-operate together. The formulation and implementation of those strategies would manifestly include a consideration of anti-social behaviour. I am sure that the noble Lord will be aware of the London Borough of Haringey’s current community safety strategy which identifies six outcomes, one of which is to:

“Prevent and reduce acquisitive crime and anti-social behaviour”.

It is in implementing such strategies that it goes almost without saying that the responsible authorities will take full account of the new powers in Parts 1 to 5 of the Bill, as well as existing less formal interventions, to tackle such behaviour.

As a result of our extensive consultation on the new powers with local authorities—the Bill has been drafted with local authority consultation as its backbone—as well as other agencies, I am confident that they are fully aware of the importance in ensuring that the use of the powers is underpinned by a coherent strategy and good partnership working. Indeed, local authorities have played a major role in shaping the new powers and would no doubt be keen to ensure that they work effectively in their areas. Moreover, along with their individual strategies and the Government’s statutory guidance, local authorities will issue their own guidance to front-line professionals on the use of the new powers and their approach to them. This is what they do with their existing powers and I see no reason why that practice would not continue.

I turn to Amendment 91. I will repeat the point that I made in Committee. The election of police and crime commissioners put the public back at the heart of our drive to cut crime, thereby giving them a greater say in how their local area is policed by these directly elected representatives. I admit that it will be a great day when I can get the noble Lord, Lord Harris, to admit that the policy has achieved that objective—but that task is not beyond us.

Under the provisions of the Police Reform and Social Responsibility Act 2011, PCCs are required to issue and publish a police and crime plan for their local area and must consult with their chief constable in drawing up the plan. Such plans must include objectives for reducing crime and disorder. As I indicated in Committee, 30 of the police and crime commissioners have put tackling, preventing and reducing anti-social behaviour as one of their key priorities in their plans. Another eight have put reducing the impact and keeping people safe from anti-social behaviour as one of their individual priorities; and the remaining three commissioners want to encourage the reporting of anti-social behaviour.

Perhaps I may give the noble Lord an example. London’s Police and Crime Plan 2013-2016 states that,

“tackling anti-social behaviour … or quality of life crime, is critical to addressing perceptions of disorder in a neighbourhood, and although MOPAC”—

the Mayor’s Office for Policing and Crime—

“is setting no explicit targets for the police in this area, ASB is one of the three priorities for the London Crime Reduction Board, chaired by the Mayor”.

It is obvious that the successful implementation of this and other police and crime plans when it comes to tackling anti-social behaviour will necessarily involve an assessment of how the new powers in the Bill can be put to best use.

This was reflected by Sir Graham Bright, the Cambridgeshire police and crime commissioner, who said about the Bill in October last year:

“Police and Crime Commissioners have been closely following the progress of the Anti-Social Behaviour, Crime and Policing Bill. We want the police to be given effective powers to tackle anti-social behaviour that provide better protection for victims”.

Sir Graham went on to say:

“It is also important to have a multi-agency approach to tackling anti-social behaviour as the police are only one part of the solution. By working with local authorities, housing associations and other agencies we can effectively combat anti-social behaviour and empower victims and communities”.

In short, the police, local authorities and other agencies recognise the importance of understanding how to use the new powers in the Bill effectively to protect the public from anti-social behaviour. The statutory guidance provided in the Bill will undoubtedly help them in this regard.

In practice, I believe that on this issue there is little between the Government and the noble Lord, Lord Harris. We are at one in recognising the importance of partnership in working to tackle anti-social crime and anti-social behaviour, and of this being reflected in local crime and disorder strategies and police and crime plans. This is what the Government expect local authorities to do.

In implementing such plans, in so far as they relate to tackling anti-social behaviour, we would clearly expect the police, local authorities and other agencies to make effective use of the new powers in the Bill. While we seek the same outcome, I do not believe that these amendments are needed to achieve it. I therefore invite the noble Lord to withdraw his amendment.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 8th January 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, this is one of those debates that are quite special to your Lordships’ House. I spent 13 years in the other place and I have been in your Lordships’ House for three and a half years. I think other noble Lords who served there would agree this is not the kind of debate that we often heard in the other place. This House is made all the more relevant and important because of that. It is also one of those debates that Ministers from any party in Government would perhaps refer to as “interesting” and “helpful”. It certainly has been a very interesting debate. The noble Lord, Lord Dear, the noble Baroness, Lady Mallalieu, and the noble and learned Lords, Lord Mackay and Lord Morris, have done this House a great service by bringing forward this amendment.

I want to be clear at the outset that I think everybody who has spoken wants to see effective and swift action to tackle serious anti-social behaviour and to treat the issue with the seriousness it deserves. It is not overdramatic to recognise that, if left unchecked, anti-social behaviour can destroy lives. Ongoing anti-social behaviour can cause alarm and distress and, in some cases, leaves people feeling utterly devastated and unable to cope. It creates total misery.

In previous debates, I have spoken of my experience in supporting victims, both as a Member of Parliament and a county councillor. There is no doubt that when anti-social behaviour orders were brought in they created a significant change in the way such cases were dealt with. There were teething problems but experience has shown that they are an important tool in tackling such serious problems. That is why I just do not understand why the Government are embarking on such a dramatic change in this legislation. Obviously, improvements can always be made to any system and we would support improvements to anti-social behaviour orders. However, this really is a case of throwing the baby out with the bathwater and does not improve the position for those suffering from anti-social behaviour.

I am not a lawyer—I am perhaps in a minority among those who have spoken today—but all my experience and instincts from dealing with this issue tell me that these proposals from the Government are ill thought-out and unworkable. Noble and learned Lords with far greater experience and knowledge than I who have spoken have come to the same conclusion. As we have heard, the concern is that the Government’s new proposed threshold for granting an injunction for engaging or threatening to engage in causing nuisance or annoyance to any person on the balance of probabilities if the court considers it to be just and convenient is too vague and too broad. The noble and learned Lord, Lord Morris, described it as open-ended machinery that would catch people who should not be before the courts. The danger is that in the rush of those being brought before the courts for nuisance and annoyance we could lose focus on the serious cases of harassment, distress and alarm.

The very real concerns about how this power could be used and abused were raised at Second Reading and in Committee. In preparing for this debate, I started to draw up a list of activities that could be brought into the remit of Clause 1. I had to give up after several pages and hours. The noble Baroness, Lady Mallalieu, described it as an extraordinary power, and indeed it is. I appreciate and welcome the experienced and knowledgeable legal views but this is not just a legal issue. It is a moral issue of dealing with those people who are suffering the most. The Government are not targeting the behaviour causing the most serious problems but creating a catch-all clause that could affect almost everybody at some point. There is no doubt that some people and some activities inevitably cause some degree of nuisance and annoyance. However, is an injunction, which in most cases will be pretty weak and ineffective—although at the extreme end it could involve custody—the most appropriate way of dealing with these cases, or should we accept that in our everyday lives some level of nuisance or annoyance is a consequence of ensuring the liberty and freedom of the individual? Liberty and freedom are not open ended. There have to be constraints and the test of harassment, alarm and distress spoken about today is the appropriate point to place those constraints.

The ACPO lead for children and young people, Jacqui Cheer, emphasised this point in November when speaking to the APPG on children. She said:

“I think we are too ready as a society, as the police and particularly with some legislation coming up on the books, to label what looks like growing up to me as anti-social behaviour”.

There have also been concerns that one person’s annoyance may be another person’s boisterous behaviour. Indeed, as the noble and learned Lords, Lord Morris and Lord Mackay, and the noble Baroness, Lady Mallalieu, said, it need not be boisterous behaviour. Exercising fundamental democratic rights of protest or even just expressing views in a forceful manner can cause nuisance or annoyance.

The Minister’s amendment suggests that behaviour has to be reasonably expected to cause nuisance and annoyance. That is an admission that the Government now recognise the unreasonableness of the clause that they have previously defended to the hilt. As the noble and learned Lord, Lord Mackay, made clear, while that change on its own may be welcome, it does not address many of the points being raised here today. It still leaves the test as nuisance and annoyance to any person on the balance of probabilities. That is not good enough. I was interested in the points made by the noble and learned Lord on “just and convenient”. I accept his assessment of the value and usefulness of that. If the boisterous behaviour to which I referred is ongoing and causes harassment, alarm or distress, then action obviously has to be taken. But as it stands, even with the government amendment, a one-off event that causes nuisance or annoyance to any person on the balance of probabilities would still lead to injunction.

In Committee the noble Lord, Lord Taylor, relied largely on the definition in the Housing Act 1996. Noble Lords have concerns about paragraph (b) of the amendment. I do not share their concerns because it is appropriate in limited circumstances for the existing law aimed at people in social housing to remain to give housing providers the tools to deal with tenants in such circumstances. No change is being sought to that position and that is what part (b) of the amendment makes clear.

I will now address some of the points made by the noble Lord, Lord Faulks, in his defence of the Government, which I am sure we will hear in due course from the Front Bench as well. One great benefit of ASBOs is how seriously anti-social behaviour is taken. The issue of alarm, harassment and distress is crucial and there are appropriate sanctions for dealing with it. We could end up with more of these orders being imposed but in most cases they will be a weaker response to dealing with anti-social behaviour. The noble Lord referred to the guidance and he read it out very quickly. I have a copy of that guidance. It is somewhat confusing because it says, as he rightly quoted:

“It should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities”.

Where in the Bill is harm referred to? Guidance is not legislation. The legislation, as it stood, referred to alarm, distress and harassment. The Bill refers to nuisance or annoyance. Guidance suggesting there has to be harm as well does not override what is in the Bill. Noble Lords who were defending the Government’s position, when asked whether they could give examples of activities that would come under the Bill’s definition of nuisance and annoyance but not cause alarm, harassment and distress, were unable to do so. Every example they gave of where action should be taken caused harassment, alarm and distress. It is quite clear that the existing legislation is the best way to define the kind of behaviour that is disrupting lives.

The noble Lord, Lord Faulks, also raised the issue of hearsay evidence. It is currently the case with anti-social behaviour orders that professionals can give advice on behalf of those suffering so that they themselves do not have to go to court to present their case. The noble Lord, Lord Phillips, made a very important point about the courts being clogged up and about the pressures on police officers having to respond to every case of nuisance and annoyance. Has the Minister given any consideration to how the police should respond with their increasingly limited resources to cries for help from people suffering what they consider to be nuisance and annoyance and whether they will then be able to deal with very serious cases of anti-social behaviour?

The existing test of harassment, alarm and distress recognises the seriousness of anti-social behaviour and the need to take action against those who breach an order. The definition proposed by the Government is too broad and the remedies are too weak. Setting the threshold so low undermines fundamental freedoms and tolerance. It is a great shame that, having had warning at Second Reading and in Committee of the great concern in your Lordships’ House, the Government did not come back today with something a bit better than the amendment being put forward. There are serious concerns about this, not just because it would catch too many people but because those who are really causing distress in our communities will not be the focus in tackling problems. I urge the Minister to accept the amendment moved by the noble Lord, Lord Dear. The only compromise that would be acceptable today would be if the Minister were to say that he accepts that there has to be a change of definition and that he can assure us that that would be “harassment, alarm and distress” and not “nuisance and annoyance”.

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

Well, my Lords, this has been an interesting debate. I am not particularly thick-skinned, so I am clearly sensitive to the views that have been expressed by this House. I am grateful to the noble Lord, Lord Dear, and other noble Lords who have spoken, because they have done justice to this debate by the contributions they have made. I owe it to the House to explain the Government’s position, and perhaps I can then take this issue on.

Clause 1 is clearly an important part of the Government’s reforms, and I begin by acknowledging that there has been some common ground on the need to include it in the Bill. We have indeed reached some common ground on the elements that we need to include in Clause 1 to make it effective. First, I am glad that the civil standard of proof for the new injunction has been accepted by so many noble Lords. Secondly, I welcome the tacit acceptance of the “just and convenient” limb of the test for an injunction. The noble and learned Lord, Lord Carswell, said that this is a proper consideration for courts in any case, but it is right that we should make it explicit as one of the limbs of the test.

The terms of Amendment 1, as compared with the amendments put forward in Committee, are a welcome demonstration that this House listens carefully to the evidence put before it both by noble Lords and by front-line professionals, and that it adapts its approach accordingly. The Government have also listened to the concerns expressed by noble Lords in Committee and by the Constitution Committee and the Joint Committee on Human Rights, and that is why I have tabled Amendment 2, which we believe addresses the concerns about the breadth of the “nuisance or annoyance” test. Although Amendment 2 is not part of this group, it addresses exactly the same issue—the appropriate form of the test for the grant of an injunction—and, accordingly, it is important that your Lordships consider Amendments 1 and 2 together.

As I said in the debate in Committee when my noble friend Lord Faulks tabled his amendment, I believe it is inherent in the way that the court will look at any application for an injunction to consider whether it was reasonable to grant an injunction in the circumstances of the case. I am grateful for my noble friend’s contribution, and I look forward to him joining me on this Bill before we conclude our consideration of it.

I thank my noble friend Lady Hamwee for her contribution to this debate. I also thank other noble Lords who wanted to speak but were not able to or who have forgone their right to speak in order to expedite this debate. In that I include my noble friends Lady Newlove and Lady Berridge.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I start by joining in the tributes being paid to Paul Goggins. I know that my colleagues in the Home Office share this view. We were together yesterday evening when his illness was mentioned. His loss this morning is a loss to British public life and I am happy to pay tribute.

I am very grateful to the noble Earl, Lord Listowel, for tabling these amendments. It is right and proper that we consider these matters. His amendments raise important issues about whether detention is appropriate for someone aged under 18, and we debated this at some length in Committee. I was pleased that we had the opportunity for a productive meeting yesterday and I hope that I will be able to answer some of the points made by the noble Earl and other noble Lords.

The Government strongly support the use of informal interventions and rehabilitative approaches, particularly when dealing with young people. That is at the heart of our overall approach to anti-social behaviour. However, detention must be available to the court if the new injunction is to act as an effective deterrent and to protect victims and communities in the most serious cases. When we consulted on the new anti-social behaviour powers, 57% of those who responded were in favour of the breach sanctions for the injunction for under-18s. Only 22% disagreed, with only a further 4% against any custody for under-18s.

The injunction is a court order and must be supported by tough sanctions to ensure compliance. However, in contrast to anti-social behaviour orders, under-18s will not be unnecessarily criminalised and saddled with a criminal record for breach. However, it is only in the most serious or persistent cases of breach that a court may detain someone aged under 18. Schedule 2 to the Bill makes clear that a court may not detain a young person for breach of an IPNA,

“unless it is satisfied that, in view of the severity or extent of the breach, no other power available to the court is appropriate”.

Where this is not the case, the court may impose a supervision order on a young person and Part 2 of Schedule 2 to the Bill sets out a number of non-custodial requirements that can be attached to such an order. The relevant requirements are a supervision requirement, an activity requirement or a curfew requirement. These are three of the requirements which may be attached to a youth rehabilitation order, the youth equivalent of a community sentence.

We would expect the youth courts to do all they can to ensure that a young person’s rehabilitation is effective. In making any decision to make a detention order, the court must consult with the youth offending team and inform any other body or individual the applicant thinks appropriate. If the court does decide to make a detention order, it must give its reasons in open court. The availability of custody as a sanction in exceptional cases reflects the current position as regards the anti-social behaviour order on application. Indeed, breach of an ASBO on application attracts a maximum penalty of five years’ imprisonment as well as a criminal record.

The previous Administration took the view that there needed to be effective sanctions for breach up to and including imprisonment, including in cases involving young people. While it was generous of the noble Earl to congratulate the previous Government on this aspect of their policy, we do not believe that they got the balance quite right between punishment and rehabilitation. That is why we are treating breach of the IPNA as a contempt of court rather than as a criminal offence: we believe that they were right to include the option of custody for both adults and juveniles. To remove that option for juveniles would significantly weaken the effectiveness of the injunction and thereby weaken the protection we are seeking to afford to the victims of anti-social behaviour.

I shall address some of the concerns expressed by the noble Earl and other noble Lords. Of course, a vital part of preparing for the introduction of these new powers will be appropriate training and support for the judiciary, police and other front-line professionals in how these powers are applied to young people, and the Home Office is already discussing these requirements with the Ministry of Justice, the Judicial College and the College of Policing.

I can inform the noble Earl that young offenders under 18 years of age may be placed in a young offender institution run by the National Offender Management Service, NOMS, a privately operated secure training centre or a local authority secure children’s home. Placement is made by the placements team of the youth justice board, which is notified by the court when custody is given. They will use their expertise and will be informed by the relevant youth offending team to place them in an appropriate establishment suitable for their needs. The youngest and most vulnerable young people will be placed in secure children’s homes. There are no longer any places for girls in young offender institutions, so they will be placed in a secure training centre or secure children’s home.

Under the Bill, the court must consider any representations made by the relevant youth offending team in considering whether to make a detention order against an under-18. Moreover, the applicant for a detention order or a supervision order must consult any youth offending team and inform any other body or individual the applicant thinks appropriate. I hope that helps to reassure the noble Earl.

I shall go on to the dispersal order.

[Baroness Smith of Basildon]

The noble Lord made the point about it being a contempt of court. Can he tell me in how many other cases young people can face detention for a contempt of court?

[Lord Taylor of Holbeach]

Off the top of my head, I cannot, but I hope that the noble Baroness will allow me to write to her on that. I will copy in all noble Lords who have spoken in this debate and put a copy in the Library.

As for breach of a dispersal direction, I can offer the noble Earl some comfort and, in doing so, I should like to correct the impression I gave in Committee on 20 November that custody was an option for breach of a dispersal direction by a person aged under 18. I can, in fact, reassure the noble Earl, the noble Lord and the noble Baroness that this is not the case. Detention and training orders—the juvenile equivalent of imprisonment —must be made for a minimum of four months. That means that where the maximum term of imprisonment that could be imposed is less than four months, as is the case here, a detention and training order is not an option in relation to a juvenile offender. The court will be left with the options of a youth rehabilitation order, a fine, a conditional discharge or an absolute discharge. I hope that is of some reassurance and apologise if my previous comments misled noble Lords. I hope I have been able to reassure the noble Earl as regards the dispersal powers.

In the case of the IPNA, I fear that we have to agree to differ on the appropriateness of having custody as a long-stop option for breach of an injunction by a person under 18. For the sake of victims of anti-social behaviour, we remain strongly of the view that, in exceptional cases, a detention order should be available to the courts. We should not weaken these provisions by removing that option.

Amendment 86, the final amendment in this group, seeks to place a new responsibility on local authorities to provide youth services to prevent young people becoming involved in anti-social behaviour. This obligation is already effectively provided for by the Crime and Disorder Act 1998, which places a responsibility on local authorities to formulate and implement a strategy for the reduction of crime and disorder in their area, where crime and disorder includes anti-social behaviour and youth anti-social behaviour. That Act includes a responsibility for local authorities to keep the strategy under review, monitor its effectiveness and alter it accordingly. Local authorities must ensure that their strategy focuses on the types of problem in their area, based on an analysis of local levels and patterns of crime and disorder, and the misuse of drugs and alcohol. Therefore, if an area has a particular problem with youth anti-social behaviour, the local authority has a responsibility to put measures in place to reduce the problem. I would expect this to include preventive measures. In addition, the Children Act 1989 places an obligation on local authorities to safeguard and promote the welfare of children in their area who are in need and to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children’s needs. This includes services to prevent young people becoming involved in anti-social behaviour, crime and disorder, as well as services to support those young people and their families who become involved in anti-social behaviour or crime.

I hope I have reassured my noble friend Lady Hamwee, the noble Lord, Lord Harris of Haringey, the noble Baroness, Lady Smith of Basildon, and the noble Earl that the duty he seeks to create through this amendment already exists and that local authorities have these crime and disorder reduction strategies in place. In these circumstances, I hope the noble Earl will be prepared to withdraw his amendment.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 8th January 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for the amendments that he has brought forward. He did respond to the debates in Committee by bringing them and we welcome the provisions on freedom of expression and assembly. However, as my noble friend Lord Harris of Haringey said, he and I both raised more fundamental concerns about the changes being made by the Government. I do not propose to repeat the comments made by my noble friend or comments that I made previously but the fact is that we did not receive satisfactory answers in Committee, particularly on how the dispersal orders will work in practice or on the evidence base for why they are being extended and changed.

In Committee, the Minister said that he would write to me with that information. Again, I take the same view as my noble friend Lord Harris: my apologies if I have missed the Minister’s letter to me in the many letters that we have received or have been copied into. However, I do not appear to have received the letter that he promised with information on the evidence base for changing the orders. I was very interested in the comments that the Minister made this evening when he opened and I wish that I had had them in writing previously, as I thought I would. That would have given me an opportunity to consider them properly but I will read Hansard to see what he said.

In Committee, the noble Lord, Lord Harris of Haringey, tried to extract information about how the orders would work in practice. He made a similar point tonight, but when he made it in more detail in Committee the Minister accused him of being mischievous. It is fair to say, he does have a mischievous streak. That has been evident but it was not evident on that occasion and it is not evident this evening.

[Lord Taylor of Holbeach]

I think that was the phrase I used—that the noble Lord had a mischievous streak to his nature.

[Baroness Smith of Basildon]

No, it was not. The Minister accused him of being mischievous in that regard. He cannot rewrite Hansard. My noble friend was making then, and is making now, a genuine attempt to find out how the orders will work in practice, step by step. The points made about the police officers are ones to which I should like answers.

We are not opposed to dispersal orders. I made that point before and I will make it again. We introduced them in 2004. There was some controversy at that time but we think it was the right thing to do. The issue we have is with the significance of the changes being made in the geographical area and the timescale and the lack of involvement from the local authority. The noble Lord, Lord Harris, made the point that our issue is not with any demographic oversight the PCC can provide after the event. It is with ensuring that, where there is to be a dispersal order, democratically elected community representatives ensure that the power is used to the best effect and that they do not cause any further problems and misunderstandings by not using it appropriately. That consultation and involvement with local authorities is very important.

When the Home Affairs Select Committee recommended as part of its pre-legislative scrutiny in the other place that there should be a duty to consult local authorities over dispersal orders of more than six hours, the Government agreed and said they would amend the legislation. They have not done so and it would be helpful to hear from the Minister why the Government are not now fulfilling their commitment to HASC. There must be a reason why they are no longer choosing to do that.

As far as I understand it, the Minister said that the police have now said that they find the dispersal order powers useful. At the risk of being accused of a blunderbuss approach, I have tabled the same amendment to try to get some answers. What was the evidence base for bringing such significant changes forward? Did the police come along and say to the Government, “There is a lack of flexibility in the current orders. There are delays in implementing them. We do not want to have to liaise with local authorities. We want to go it alone. We need them to be longer. We need a wider area.”? Did they raise those concerns prior to the Government bringing this forward? I am not aware that they did or that there were any such concerns raised by the existing orders, but if there were, can the Minister let us know that? In his comments in Committee regarding the involvement of local authorities he used phrases such as “it is likely” the police will work with the local authority and he referred to draft guidance, which states that the authorising officer “may wish where practical” to consult local council or community representatives. That is very vague and it is not my understanding of the commitment made to the Home Affairs Select Committee.

I am just trying to understand why the changes were brought forward in the first place, who complained about local authority involvement and who thought that was hampering the process or the use of orders? If the Minister is unable to answer these questions at this stage we will have to conclude there is no evidence base but I would very much regret the Government bringing forward such significant changes without an evidence base. I reiterate the point made by the noble Lord, Lord Harris. We need some real understanding of how this will work in practice, given the very significant changes that are being made.

Visas: Artists and Entertainers

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 9th December 2013 Lords Chamber

[Lord Taylor of Holbeach]

My noble friend makes a very good point. In fact, I have had some briefing on this incident and I am grateful that it has been drawn to our attention. We suspect that a deficiency in the guidance of the operation of the rules rather than the rules themselves led to this incident. I do not want to go into a lot of detail about a particular circumstance but my noble friend’s comments have not gone unnoticed.

[Baroness Smith of Basildon (Lab)]

My Lords, this is a bit of a shambles and it is also becoming highly embarrassing for the UK. Towards the end of last week a London concert by the Pakistani Sachal Jazz Ensemble was cancelled because of visa problems. The residents of New York had enjoyed packed performances at the Lincoln Center just the week before but the musicians had problems getting visas to come to the UK. A Home Office statement today says:

“Britain is open for business and genuine visitors and tourists coming here to enjoy our world class attractions, study or do business are always welcome”.

It does not appear like that to those artists and performers who are having great problems getting to this country to perform, so our citizens are denied the opportunity to see them whereas American citizens have not been. Can the noble Lord give this urgent attention? I am sorry to say that his answers so far sound slightly complacent.

[Lord Taylor of Holbeach]

I hope the noble Baroness will never assume that I am complacent about anything. I am well briefed on this subject too and this incident. It is part of our commitment to work with those putting on concerts and international events to ensure that they are aware of the visa application process. However, the responsibility to have the correct visas rests with people coming here and guidance is available on the website to help them before they travel. As with any other visitors to the UK, we expect individuals to meet our entry requirements. I can say no more than that.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 4th December 2013 Lords Chamber

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

My Lords, I am pleased that we have had this short debate on what is a very important issue. The new clause proposed by the noble Baroness, Lady Smith, relates to two firearms licensing issues which were discussed extensively during the passage of the Bill in the House of Commons. As the noble Baroness has explained, the first part of the proposed new clause seeks to create a presumption that if an applicant for a firearm meets one of the stated criteria, the police should not grant a licence. The stated criteria include evidence of domestic violence, mental illness and drug or alcohol abuse. While I share the anxiety of the noble Baroness about firearms being possessed or accessed by unsuitable persons, the police already have the ability to take these factors into account when assessing the risk to public safety. I would also be concerned about including mental illness as a presumption for a refusal. It would be wrong for us to suggest that all forms of mental illness, even a past episode, should prima facie disqualify a person from possessing a firearm.

I understand that there are particular concerns about domestic violence and abuse. In response to these, on 31 July, we published specific guidance on this issue which provided greater detail on how the police should handle such cases. In addition to that the revised full guidance, published as recently as October—the noble Earl, Lord Lytton, may not have seen that but it is available—specifies that the police must take seriously non-convictions intelligence and information when assessing a person’s suitability to possess firearms. It also states that any incident of domestic violence or abuse which comes to the attention of the police should result in a review of the current suitability of the certificate holder. Decisions must be made on a case-by-case basis, but the guidance is clear that evidence of domestic violence will generally indicate that an application should be refused or, if a certificate has already been issued, that the certificate should be withdrawn. This new guidance is now being applied by police forces.

The proposed new clause also seeks to introduce a requirement that the police must follow any guidance issued by the Home Secretary when assessing public safety. I understand that argument, but I consider that guidance needs to remain just that. It is right that chief officers have the discretion to assess applications for firearms in their local areas, taking into account the merits of each case and the published guide. Chief officers are ultimately responsible for public safety at a local level. I agree with the noble Earl, Lord Lytton, on this. The Government have sought to make decision-making a local responsibility wherever possible. I would not want to undermine this.

However, we are ensuring that, where national action can support local decision- making, it does. We are working with the national policing lead for firearms licensing to ensure that police have a more detailed awareness and understanding of the Home Office guide. The College of Policing will also be publishing authorised professional practice on firearms licensing, which will complement and cross-refer to our guidance. I believe that this is the way forward. In order to assess standards, HMIC has carried out a scoping exercise on how firearms licensing is conducted in practice, and we will use the findings from the exercise to drive up consistency of decision-making across the country.

I turn to the second part of the proposed new clause, which seeks to introduce a legal requirement for the Secretary of State to consult all chief police officers before revising the licence fees so that they achieve full cost recovery. Noble Lords should be reassured that consultation with the police is integral to the fee-setting process and we fully accept the need to consider the impact of licensing on police resources. That is why a new online licensing system is being introduced, cutting the administrative burden of a paper-based system. Primary legislation is not required to make this happen. Until we have driven out the inefficiencies in the current paper-based approach to the licensing function, it would not be appropriate to raise the fees fourfold in order to achieve a “one giant step” full cost recovery. The current fees and licensing structure has remained the same for a long time and—we all accept—needs to be reviewed. It is extremely important that we achieve a balance between an efficient system and a proper fee level. For this reason, we are considering what level firearms licensing fees should be over the long term, once these efficiencies have been made. I hope that, having demonstrated to the noble Baroness that we have made considerable progress on these issues, she will be persuaded that further legislation is unnecessary and in a position to withdraw her amendment.

[Baroness Smith of Basildon]

My Lords, I would love to have been persuaded by the Minister, because the only reason we brought this amendment forward is that the current system is not working. If it were, there would be no need for such an amendment, so it is clear that we are extremely concerned. I was interested in the point raised by the noble Earl, Lord Lytton, on the case of Michael Atherton; he said that existing legislation was adequate. I tell him that there are a number of reasons why Mr Atherton should not have had a firearms licence, perhaps most crucially his history of domestic violence. The police wanted to refuse his application, but they were given legal advice that they did not have the grounds to refuse. That is part of the problem: it indicates the change in the law that is needed. Discretion can be very difficult for police officers when they are getting legal advice that, if they use that discretion, they will be challenged in courts. That is one of the reasons we have brought this forward. I understand the concerns on mental illness, and I would never suggest for a moment that anybody who has had a mental illness should not be able to hold a licence. I think, however, that there should be a check on people who have had a mental illness who could be a danger to themselves or others; where it is coupled with domestic violence, for example, then there is a case.

I am also rather surprised by the Minister’s issue on full cost recovery, because I do not think that that principle is applied to other areas of full cost recovery. It does not really explain to me why a fisherman pays so much more to have a licence or why that licence is so much more expensive than a firearms licence.

In the light of the debate today I will take away the Minister’s comments and look at them in Hansard, and for now I beg leave to withdraw the amendment.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 2nd December 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Lord, Lord Harris, who first raised this issue at Second Reading. It can sometimes be difficult across government to see how the actions of one department impact on another. I say to the noble Earl, Lord Lytton, that the reason that the amendment is before us today is that Secured by Design is in great danger of being totally undermined by the action of the Department for Communities and Local Government. There seems to be a holy grail of deregulation, to see what we can pull out of regulation, without making a proper assessment of where regulation is good or bad, of what is its impact.

Secured by Design is there to protect people in their homes. One of the non-violent crimes that causes the most distress to anybody is the intrusion into and burglary of one's home. It is not necessarily about theft of items, although they may be things of great personal, sentimental or monetary value; it is the intrusion into one’s home, the place where we expect to be the most safe, but where we suddenly feel the least safe and the most insecure. That is what Secured by Design sought to address.

I have to say: it works. The noble Lord, Lord Deben, mentioned his experience of it. I was looking at some of the case studies of what was done and how much difference it made. Secured by Design case studies are interesting because they show the situation before and after. Prior to the work being undertaken in Nottingham City Council area, a particular estate, Bells Lane and Broxtowe, suffered 227 burglaries. Following the work undertaken by Secured by Design, there was a 42% reduction in the number of burglaries, yet in the city as a whole there was a reduction of just 21%, so it was inevitable that Secured by Design had an impact there.

The Secured by Design estates in West Yorkshire outperformed the region as a whole on burglary of dwellings offences. Between August 2007 and 2008, there were 19,701 burglaries, but only two of those were in Secured by Design properties. Similar research in Glasgow demonstrated that total housebreaking crime fell by 26%, while attempted housebreaking decreased by 59% at properties with new Secured by Design doors and windows. So there is clearly a case that that is extremely effective.

That is what surprised me about the consultation by the Department for Communities and Local Government, which was introduced under housing standards, building regulations, and so on.

The noble Lord is chuntering away to me, but I cannot hear a word he is saying, so he should know that I cannot respond.

[Lord Taylor of Holbeach]

I would say it is a consultation.

[Baroness Smith of Basildon]

It is a consultation but it was in August, and I recall that when we discussed it at Second Reading the Minister seemed to be unaware of the consultation and could not tell us then if the Home Office had responded to the DCLG. It would be helpful if he could say what response the DCLG has had now from the Home Office. I do not think that the noble Lord, Lord Harris, is overstating the issue when he says that the proposals being consulted on—some of us are a bit more sceptical about government consultations perhaps than others these days—undermine the standards currently being met by Secured by Design properties.

It was interesting to see the response from neighbourhood watch, in which the noble Lord, Lord Blair, said he was involved. Since neighbourhood watch arrived 30 years ago, the number of domestic burglaries has fallen sharply, due in no small part to the development of high security standards for locks, doors and windows and the design of open spaces. These kinds of issues have really made a difference.

The noble Lord, Lord Harris, asked who asked for these changes. The noble Lord even mentioned developers. My experience of dealing with developers when I was building regulations Minister was that many of them wanted to see the higher standards. Good developers feel that they will be undercut by bad developers if they want to meet the high standards, whether in security, building regs, the kind of materials they use or environmental works in the home. They find it very difficult to compete with what they would call the cowboys, who do not meet the same high standards. I would find it difficult if developers were asking for this change. I do not think there is a national union of housebreakers in existence yet, so I doubt if it was that. It would be great if the Minister was able to say to us again, “This has been taken off the table. We wish to continue with Secured by Design. We have spoken to the DCLG. It understands our concerns and the necessity for this”. Will he answer the questions raised at Second Reading and today about why this was ever considered, because it is clearly such a ridiculous move?

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 2nd December 2013 Lords Chamber

[Baroness Smith of Basildon]

The noble Lord said page 58; did he mean page 68?

[Lord Taylor of Holbeach]

I apologise if I misdirected the Committee. There is direct reference to the subjective nature of anti-social behaviour. That was on the recommendation of the Home Affairs Select Committee. It also appears in the guidance, under the heading “Putting victims first”, which states on page 10:

“The Community Trigger can be used by any person and agencies should consider how to make it as accessible as possible to young people, those who are vulnerable, have learning difficulties or do not speak English”.

On the following page, under “Responding to the victim”, it repeats that the potential harm to a particular victim is one of the key matters that has to be taken into account. We have already built in the very issues that the noble Baroness has said she would like in the Bill.

I turn to Amendment 56L, tabled by my noble friend Lady Hamwee. It probes the finer detail of how the community trigger threshold will work in practice. My noble friend seeks reassurance that, for instance, three members of a household cannot report the same problem and have that count as three separate incidents for the purpose of meeting the threshold. This would of course mean that they would essentially jump the queue to get their problem dealt with as a community trigger. The Bill already accounts for this, and I will happily explain how.

Clause 96(11) defines a “qualifying complaint” for the purpose of the community trigger. The complaint needs to be made within one month of the incident occurring, or a different period if specified within the review procedures. This is to prevent someone making complaints about historical incidents in order to use the community trigger. Subsection (12) allows the local agencies to set out what will be considered a “qualifying complaint” where someone makes two or more complaints about the same behaviour or incident, in particular when separate complaints relate to different aspects of one incident. That achieves the safeguard that Amendment 56L is designed to achieve.

We want to ensure that the legislation is robust enough that only genuine requests to use the community trigger meet the threshold, while allowing the procedures to be flexible enough to ensure that the trigger can help those victims who need it most. I hope that I have reassured my noble friend that the procedures are set out in a way that will ensure they will not be manipulated in the manner that she fears.

As I said, we have trialled the community trigger in four parts of the country since June 2012, and the majority of requests to use the trigger were genuine. We have tested the legislation through trials and I am content that we have achieved a good balance between addressing the needs of the most vulnerable victims, which my noble friend Lady Newlove emphasised, and allowing agencies the flexibility to operate the community trigger to suit local circumstances.

Some amendments have been tabled by my noble friend Lord Greaves, to which my noble friend Lady Hamwee referred. I know that my noble friend is anxious to ensure that we standardise the definition of a local authority in the Bill. In this case, however, the wording used in Clause 97 and Schedule 4 is technically correct. His amendment 56LD inadvertently omits line 19 on page 69, which is still required. Given that our provisions are technically correct, I am not persuaded that there are sufficient grounds to make the amendments.

I hope that, having listened to what I have said, the noble Baroness is content to withdraw her amendment.

[Baroness Smith of Basildon]

I am grateful to the Minister; I think he has heard what I said. I should like to read the details of what he said in Hansard with reference to the guidelines and the Bill, because I am not 100% sure that the points he makes fully address the issues that I brought forward today. First, he said that there is a right to demand that the authorities take action. My understanding is that it is not a right to take action, it is a right to have a review of the case. He is right to say that, sometimes, cases of anti-social behaviour are motivated by someone’s vulnerability, but sometimes it is the vulnerability of the individual that makes the anti-social behaviour more severe, because they are less able to cope with the pressures they face.

I am very grateful for the support of the noble Baroness, Lady Newlove, the Victims’ Commissioner. She fully understands the point I am trying to make about how people react to anti-social behaviour. For the trigger to be used 13 times in more than 14,000 incidents gives me cause for concern. If I can go back to read what the Minister said and read the guidance, at this stage, I beg leave to withdraw the amendment.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 2nd December 2013 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, government Amendment 56M relates to the maximum penalty for dog attacks. Following an amendment tabled in Committee in the House of Commons by Richard Fuller, Defra consulted over the summer on possible increases to the maximum sentences for offences under Section 3 of the Dangerous Dogs Act 1991 of allowing a dog to be dangerously out of control—the very measure that we have been discussing in the previous amendment. Specifically, that is the aggravated offence where an out-of-control dog kills or injures a person or an assistance dog.

Some 3,180 people and organisations completed the online survey and a number of organisations sent written representations. In summary, some 91% of respondents considered that the maximum penalty should be increased. We have taken into account the results from the survey, the written representations and the need for the maximum penalty to be proportionate to the offence.

The amendment provides for an increase in the maximum penalty for an aggravated offence under Section 3 of the 1991 Act, to apply in England and Wales, as follows: 14 years’ imprisonment if a person dies as a result of a dog attack, five years’ imprisonment if a person is injured by a dog attack, and three years’ imprisonment for an attack on an assistance dog that results in injury or death of the dog.

These changes reflect the high public concern that two years is an insufficient penalty for these offences, and the fact that seven adults and 10 children have died in dog attacks since 2005, and some 10 assistance dogs are attacked by other dogs every month. As now, each of these offences could also be punishable by an unlimited fine instead of, or in addition to, imprisonment; and, of course, the courts have the option of passing a community sentence.

I should make it clear that these revised sentences will apply only to the aggravated form of the offence in Section 3 of the 1991 Act; that is, the offence where a person or an assistance dog is actually killed or injured in a dog attack. Where someone actually sets their dog on to a person, the Offences Against the Person Act 1861 is likely to come into play. As noble Lords will be aware, the Act comes with its own sentencing regime. Were someone to be killed by a dog set upon them, if this is found to be an act of murder or manslaughter, the maximum sentence that would apply is life imprisonment. As now, it will be for the Crown Prosecution Service to decide whether there is both sufficient evidence to charge a person with the Section 3 offence and whether it is in the public interest to mount a prosecution. Once a case comes to court and a person is found guilty, it will be for the judge to take into account any mitigating or aggravating factors when passing sentence. We can, and should, leave it to prosecutors and the courts to make decisions in light of the facts of each individual case.

Of course, increasing the maximum penalty for dog attacks is only one aspect of trying to target irresponsible dog ownership and to encourage more responsible approaches. The Government consulted on a range of measures to encourage responsible dog ownership in 2012, and published a summary of results and the way forward in February this year, including bringing forward the other measures in the Bill relating to dogs and the compulsory microchipping of dogs by 2016. However, I hope noble Lords will agree that increasing the maximum penalty in the way that I have described is an important additional step. I commend the amendment to the Committee.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Lord for bringing this forward and for his explanation. I know he said at Second Reading that he would bring forward the amendment and he has been kind enough to write to noble Lords about it. I think this came from amendments proposed in the other place, where Richard Fuller raised the point and the Government agreed to do a consultation on it over the summer. Therefore, we are supportive and want to see better sentencing guidelines around dangerous dogs. The culpability of those responsible and the actions taken against them are central to the measures the Government have taken. It also comes back to the point I made to the noble Lord earlier. I do not want to hark on about dog control offences too much but it is about prevention. Tougher sentences help with preventing such attacks taking place, and encourage more responsible dog ownership. That certainly is a positive.

I would like to ask the noble Lord a few questions about this. I am slightly puzzled about the reasons—if he could help me on this—that the amendment says:

“14 years if a person dies as a result of being injured”.

That will be the maximum penalty and we all recognise that in most cases the maximum penalty would not be the penalty given. Is 14 years comparable with other legislation? Are there other kinds? Where has this come from? I am sure it is not something the Minister has just dreamt up. I assume that there is other legislation that is seen as similar or relevant, which the period of 14 years would have been taken from.

I think there was some discussion in the Commons. This measure is for when a person dies as a result of being injured, but what if a dog is used as a weapon? We know that there are cases when somebody is injured because a dog is deliberately set on a person. What if they die? Is that the same penalty? What if somebody deliberately sets a dog on another animal, or a pet? With the penalty for when somebody dies as a result of being injured—in the case of an assistance dog, whether or not it dies, the penalty is three years—is there any distinction between an attack occurring when the owner has tried not to have their dog attack an individual and an attack occurring when the owner sets the dog on an individual? I do not think that it would be covered by dog fighting laws if a human were attacked. If the Minister has any information on that, it would be helpful.

Furthermore, is the five years’ imprisonment for a person being injured something that is found in other legislation? I am speaking slowly, because I think that inspiration is about to arrive for the Minister on this issue. Where do the 14 years, five years and three years come from? Is there comparable legislation? The crucial point is whether the attack is deliberate, and whether a dog is forced to attack another dog or person. Many years ago, I helped to home a dog that had been the victim of quite serious attacks by other dogs. This poor dog was quite an aggressive creature with other dogs, but it had had half of its jaw bitten off and was in a terrible state. So I have seen at first hand and cared for dogs that have been very seriously attacked by other dogs. I am trying to get to the base of whether this is about something that happened, which should have been prevented, or something that is deliberate. It would be very helpful if the noble Lord could answer these questions.

[Lord Taylor of Holbeach]

The most important thing is to recognise that the prosecution of these cases is in the hands of the prosecuting authorities and adjudication of sentences is in the hands of the court. But there are particular aspects to the legislation. The noble Baroness asked me whether there was something comparable: 14 years’ imprisonment is the same penalty as for causing death by dangerous driving, so there is a parallel with that.

The noble Baroness made a further point. I thought that I referred to it—and, certainly, I half thought that I mentioned it in my previous contribution. It is getting late and my memory may not be right, but I certainly have it here in my notes and may have said it in my speech. When a person deliberately sets a dog to injure someone, using a dog as a weapon, other offences would apply, such as murder or manslaughter, which as the noble Baroness knows carry a maximum of a life sentence, if that is shown to be the case. I am sure that I alluded to that in my previous remarks.

Why did we decide to increase the maximum penalty for injury to a person to five years? The majority of people wanted to see 10 years, but we wanted to be proportionate and felt that this was about the right tariff for injury to a person. But I think that the noble Baroness welcomes the amendments, and I am grateful for her support.

[Baroness Smith of Basildon]

The noble Lord is right: I am welcoming the amendments and am grateful to him for his explanation, which is extremely helpful. I had not realised that a dog could be used as a tool currently in a murder or manslaughter charge; that information is news to me. So I am grateful to him for explaining that more fully. He is right—we do support these amendments.

[Lord Taylor of Holbeach]

What has been helpful about these debates on the dog legislation is that they have reinforced the fact that this is an area in which the legislative framework has been imperfect. I hope that I have convinced noble Lords on the flexibility of the anti-social behaviour measures when applied to dog ownership. There is specific draft guidance being given to professionals. I shall make sure that all noble Lords who have spoken in this part of our discussions this evening, including those who might have done, such as the noble Lords, Lord Trees and Lord Greaves, get a copy of that guidance, because it will help future discussions. I hope it will persuade noble Lords that, given the acknowledged difficulty of legislating in this area, what the Government are seeking to do is sympathetic to the sentiments of the Committee.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 25th November 2013 Lords Chamber

[Baroness Hamwee]

I will not waste the Committee’s time by repeating the arguments, but this is an instance where guidance would not be enough. Unless we can have hard examples of where the provision might be properly used to restrict assembly where there is no other provision to deal with any of the problems, it would not be adequate for guidance to say something like, “The Government would not expect this to be used in such and such a situation”. This is a power that I would be very unhappy to give to anyone because of its misuse, unless there was a very good reason to allow it here and they have no other tools.

[Lord Taylor of Holbeach]

I am really grateful for this debate. It has been very helpful to the Committee to be able to talk in these terms. I draw noble Lords’ attention to Clause 55 and how it is constructed. I am not a parliamentary draftsman and sometimes legislation is difficult to read or understand, but here the tests that are required on public spaces protection orders are quite clear and explicit.

We all agree that rights to freedom of expression and peaceful assembly are important, and we would not wish to interfere with them in this Bill. Noble Lords are right to seek from me reassurance on this. What the amendment seeks to do is not as important as the probing that lies behind it. The legislation sets a very high test that must be applied before a public spaces protection order is used, as I will explain. The first condition of the test, in Clause 55(2), states that the activities must have had a detrimental effect on the quality of life of those in the locality or it is likely that such activities will occur which could have this effect. The second condition is that the activity is persistent, unreasonable and is justified by the restrictions on the notice. I think that gives us a pretty clear idea of the sort of activity which a public spaces protection order is designed to cover.

I consider it highly unlikely that, in the case of a peaceful protest, or holding placards or handing out literature, or talking to people, even the first condition could be met. I do not see that as being a condition which any court would allow.

[Baroness Smith of Basildon]

The noble Lord refers to “any court”. It is of course the local authority that will be making the judgment. The court would only be involved at a much later stage, if that was challenged. The Minister says that the second condition is that it has to be,

“of a persistent or continuing nature”

and “unreasonable”. It does not have to be. It has to be “likely to”: a judgment is being made as to whether or not the effect of the activities is “likely to” do something. That is a much weaker test than that which the noble Lord implied.

[Lord Taylor of Holbeach]

The noble Baroness has only referred to one part of the second condition; there are three tests within the second condition alone. With the extra requirements set out in the second condition, I am satisfied that we have provided sufficient safeguards to ensure that these orders cannot be used to prevent peaceful protests or free speech. It is also worth mentioning that local authorities and the courts—I am sorry to come back to the courts, but we rely on them to make sure that legislation is properly used—must exercise their obligations compatibly with Articles 10 and 11 of the European Convention on Human Rights, which enshrine the rights to freedom of expression and association respectively. They are intrinsic in any matter concerning peaceful public protest or free speech.

That is not to say that public order legislation will not continue to apply; it can still apply. My remarks should therefore not be taken as licence to include threatening or abusive words on a placard, or the bearer of the placard containing that sort of wording could be liable to arrest. There is overriding public order legislation, but the test on a public spaces protection order has to satisfy the notion that it is a behaviour which is persistent and continuing, is or is likely to be such as to make activities unreasonable and justifies the restrictions imposed by the notice. All three of those have to be part of the second condition, let alone the first. I hope that, with that reassurance, my noble friend will withdraw his amendment.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 25th November 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I have a couple of quick questions on this issue. We tabled a clause stand part debate and I was slightly taken aback when the noble Baroness, Lady Hamwee, withdrew her two amendments because they touch on the issue that I wish to raise.

First, it seems to me that there has to be a very good reason to restrict a public right of way over a highway. Will it be in guidance, as there is nothing here to say that it should be a matter of last resort and that all other options should be considered before taking that step? It would be useful to have the Minister’s comments on that. Secondly, I have clearly been dreaming about this Bill—I am affected so greatly by it. I have just checked with the noble Lord’s officials as I was absolutely convinced that I had read in a letter from the Minister that he would make the amendment anyway, but I am told he has not. Clearly it is a very good amendment and he should make it. Will he enlighten me on Clause 60(3) which states:

“Before a local authority makes a public spaces protection order restricting the public right of way over a highway that is also within the area of another local authority, it must consult that other authority if it thinks it appropriate to do so”?

Why would it not think it appropriate to do so? Why would it not consult the other authority in whose area the highway on which it wishes to restrict public access or the right of way belongs? In my dreams I thought that this had already been done, but I am told by the Minister’s officials that it has not. Can he comment on that and explain why the authority must consult the other authority in whose area the highway is only if it thinks it appropriate to do so, rather than seeking the permission of the other authority as a matter of course? I hope that the Minister will clarify this as I am puzzled by the subsection.

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

I hope I can appear in the noble Baroness’s dreams in a good light. Do not have nightmares; that is all I say.

The decision to restrict activity on or access to public rights of way should not be taken lightly. Where anti-social behaviour, crime or disorder is present, local authorities will need to weigh up the impact of restricting access against the needs of the community. There are, as we have already discussed, additional consultation requirements associated with public rights of way above and beyond those expected more generally for a public spaces protection order. Those affected by the order must be notified of the proposal and be given details of how to see a copy of the restrictions. The local authority must also notify those persons of how they can make representations, and these representations must be considered before the order can be made.

Amendment 53G, proposed by my noble friend Lord Greaves, aims to protect private rights of way. I assure my noble friend that I agree with his sentiment. I am happy to confirm that the definition of public spaces included in Clause 60 will not allow for the order to be used for private rights of way. The principal access route to homes cannot be closed with a public spaces protection order. As such, I do not believe the amendment needs to be made.

On Amendment 53H, I understand the issue here relates to areas where there is a district council and a county council. Indeed, just as the noble Lord lives in such an area, so do I. In the situation described in the amendment, while the district council has the ability to make an order, the county council is likely to act as the highway authority. Therefore, in line with the consultation requirements I have just described, before restricting access the district council should consult the county council about the terms. However, I do not believe that this should come with a right of veto. In the majority of cases the evidence presented will be sufficient for both bodies, acting in the interests of the communities they serve, to agree. However, where this is not the case it should not prolong the misery for victims and communities, and so the district council should be free to make the order. On the basis of what I have said, I hope my noble friend will withdraw the amendment and I beg to move that the clause should stand part of the Bill.

On the specific question asked by the noble Baroness about the phrase in the clause,

“it must consult that other authority if it thinks it appropriate to do so”,

I can hardly see how, in the case of a public highway, it would be possible for a local authority to do other than consult those people. I have a note here which has come to my rescue. As to why it states in Clause 60(3),

“only if it is appropriate to do so”,

it is hard to imagine a situation where a council would not do so. However, it adds flexibility. Clause 60(3) was added to the Bill on Report in the Commons in response to a point raised by Gloria de Piero, the honourable Member leading on the Bill for the Opposition. It may be that the letter the noble Baroness is thinking of is the one from Damian Green to David Hanson of 7 October dealing with the Government’s amendments on Report in the Commons. I cannot remember ever discussing this issue before. However, it was added to the Bill on Report in the Commons, presumably with agreement.

I should say that it is only as a last resort. We have made it clear that the added flexibility means it is less likely that a right of way will be closed. This is covered in the guidance and we do not believe it needs to be in the Bill. It is also worth making clear that highways of strategic value cannot be restricted.

[Baroness Smith of Basildon]

My Lords, I think that the noble Lord sought to assist me, and I want to respond to his answer because he has actually puzzled me even more. He said, both before and after receiving enlightenment from the other end of the Chamber, that he really cannot conceive of the circumstances where it would not be appropriate to consult the other authority. He says that the provision was put in on Report in the other place. However, that does not really answer my question. Can he give me any circumstance where he thinks it would not be appropriate? That might help me to understand why it is there.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, it may be that I have been misreading this particular clause. I assumed that it was evidence of the phenomenon where you have both a district council and a county council, which my noble friend Lord Greaves referred to. It may be, of course, that the highway lies in two local authority areas, and that by restricting it to one local authority, an adjacent local authority that shares the highway might be affected. In that case it clearly would be appropriate for there to be consultation between the authorities. In effect, there would be a joint highway, shared with other authorities.

However, I am hazarding a guess and seeking to inform the House on the basis of guess-work. My best position is to say to noble Lords that there is clearly some uncertainty about the meaning of this and that I am quite prepared to write to noble Lords with all the detail. This is based on current gating order legislation, which has been used for many years by councils to deal with anti-social behaviour, so we might see a similar clause there. Clause 60 needs to be read with Clause 61, in particular subsection (1), which describes which public highways cannot be restricted. It excludes strategic highways, so it is non-strategic highways that are being considered here. I will write to noble Lords explaining how these two clauses operate together, as clearly they are both of a part.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for his very helpful suggestion for trying to get to the bottom of what it means. When he writes, perhaps he could focus on giving us an answer about when he thinks it would not be appropriate to consult the other authority. The other points he made are relevant and helpful.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, we know that in another place the Opposition stated their support for closure notices. I accept what the noble Baroness, Lady Smith, means when she says that she wants to clarify some of the detail in this, and I agree that a clause stand part debate is a good method to use. Clause 69 gives the police and local authorities a simple and easy-to-use power to close temporary premises that are the focus of public nuisance or disorder. There are a number of existing powers that could be used to close such premises, but they are similar.

[Baroness Smith of Basildon]

Did the noble Lord say, “to close temporary premises”? I am slightly confused by what he means by temporary premises.

[Lord Taylor of Holbeach]

“Temporarily”, I said. I am sorry. I might have said “temporary” but I meant to say “temporarily”. It may be me misspeaking or the noble Baroness mishearing but: “temporarily premises that are the focus of public nuisance or disorder”.

A number of existing powers could be used to close such premises but they are similar and overlap in a number of ways. We are consolidating these existing powers into a single scheme applicable to all premises associated with anti-social behaviour. These powers are flexible and can apply to private and residential premises, and to business premises whether licensed or unlicensed. The notice allows for immediate action while the longer-term order is put in place if it is required. This will give professionals a simple and flexible means to protect the public, making it easier to act preventively.

However, noble Lords will agree that such a power requires safeguards. Of course, local agencies already work informally with individuals and businesses to mitigate the risks of crime and anti-social behaviour before resorting to formal powers. This will continue to be the case. Most businesses want to protect their customers and premises. Where there is information that premises may be the location for or contribute to crime and anti-social behaviour, they can be invited to take action to tackle it, and many do.

Clauses 69 and 70 specify a minimum rank for police officers authorising the issue of a closure notice for up to 24 hours, with a higher authority needed for both the police and local authority for the extension of the notice up to a maximum of 48 hours. The provisions also include requirements about notification and consultation, and of course only the courts can require closures of premises for longer than 48 hours.

The noble Baroness has not tabled amendments but I can use some of the information that she was seeking. The court has to be satisfied that there is likely to be serious nuisance or disorderly, offensive or criminal behaviour. The second element is that it is necessary to prevent the nuisance or disorder from continuing, recurring or occurring. In practice, we expect that in most cases informal measures would be the right starting point. The draft guidance directs professionals towards informal measures in the first instance, where appropriate. Indeed, if alternatives to closure are available but have not been considered, it is difficult to see, save in exceptional cases, how it could be argued that the closure notice is necessary. Professionals, as public authorities, would have to exercise their powers proportionately or risk an adverse judicial review.

Additionally, in applying the test, a court, the police or a local authority must have regard to an individual’s human rights—for example, Article 8 rights. As I said when similar issues were raised in respect of earlier parts of the Bill, such qualified rights can be infringed only where to do so is necessary and proportionate in the pursuit of a legitimate aim.

The noble Baroness, Lady Smith, asked me what the reasonable grounds are. It is a matter of evidence, usually comprising of witness statements and statements of victims and police officers, in particular. CCTV evidence, for example, can also be brought into play when deciding whether there is a justification for the grounds. The term is commonly used in legislation and I hope that noble Lords will accept that.

The noble Baroness also asked who has been consulted. Given that the notice is affixed to the premises it would not be appropriate to name all the individuals who had been consulted. Guidance highlights the importance of partnership working and it is advised that the police and local authority keep a record of who has been consulted.

The noble Baroness also asked why we do not require the police and local authority to make information about the closure of the premises more publicly available, such as in a paper or some other way. The closure powers are flexible in that they can be used for residential, business, licensed and non-licensed premises. There may be circumstances where a short-term closure of the premises is needed to resolve a problem, such as closing a residential premises for 24 hours to prevent a Facebook party. That would not be of interest to the wider public in that area, and requiring the police or local authority to make a public announcement of all closures would add an unnecessary layer of bureaucracy. That is why we require the police and local authority to consult anyone they think appropriate as well as the owner and occupier of the premises. Clause 72 requires them, where possible, to fix a copy of the notice to the premises.

I hope that I have been able to answer the questions that the noble Baronesses have posed. I hope my noble friend will accept my explanations and agree to withdraw her amendment and that noble Lords will support the provisions in this part of the Bill.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 20th November 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, this has been a useful debate. I hope that the Minister can respond positively to it, because this is causing enormous concern. There is a great difference between the current regime of ASBOs—we still have them, and we propose that we keep them—and the new regime that the Government propose. We are talking about lifting reporting restrictions widely not for somebody who has caused harassment, alarm or distress, but someone who has caused merely nuisance and annoyance and breached the order. A child aged 10 who has been given an IPNA injunction for causing nuisance and annoyance—as I said earlier this week, I think that most children of 10 are at some point quite capable of causing nuisance and annoyance—could breach that injunction and find reporting restrictions lifted. That lifting of reporting restrictions does not seem to be a reasoned decision taken in certain circumstances—it is in every case. I do not understand why. I share the views expressed by other noble Lords. It is for the Minister to explain why he thinks that this is an appropriate and proper measure, because I fail to understand that.

The noble Baroness, Lady Hamwee, made a valuable point about safeguarding: whether children who receive publicity as a result of having caused nuisance and annoyance could be at risk. Could they be subject to grooming? Could they be targeted in any way? Have the Government done any assessment or evaluation? I cannot believe that such a clause would be brought forward without a great deal of thought, but I could be wrong. Have the Government undertaken any assessment of the impact that that could have on a child aged 10, 11 or 12? Given the naming and shaming effect of civil orders on children, have the Government consulted those organisations which seek to protect children to find out their views and how they think that it would impact on them? We are extremely worried, particularly given the low threshold level required for an order.

It really is incumbent on the Minister to explain the reasons for this clause. I hope that he has heard the concerns across the Committee. His explanation today will go a long way to seeing whether this is a matter to which we will return on Report.

[Lord Taylor of Holbeach]

I thank noble Lords for speaking in this short debate on an important issue, and my noble friend Lady Hamwee for moving her amendment. The noble Lord, Lord Ramsbotham, is not here, but we are aware of his sentiments through the Marshalled List, on which he gave notice of his intention to oppose the Question that Clause 17 stand part of the Bill.

As my noble friend Lady Hamwee said, the Bill in its current form specifically states that Section 49 of the Children and Young Persons Act 1933 is disapplied. This allows the details of under-18s subject to the new injunction to be reported unless the court imposes a restriction under Section 39 of the same Act. The same is true of the new criminal behaviour order, which is covered by a similar, parallel provision under Part 2.

My noble friend’s amendment would limit this disapplication to 16 and 17 year-olds. We know that the noble Lord, Lord Ramsbotham, thinks that it should apply to all young people. I understand the sentiments behind these amendments, but there is a strong case for maintaining the status quo in this area. There is a real need to allow reporting on under-18s in certain cases where it is necessary and proportionate, primarily to allow for effective enforcement of the order, with communities able to play their part in tackling the anti-social behaviour by alerting the police if, for example, the offender breaches the conditions of their order.

There are further legitimate reasons for lifting reporting restrictions. Publicising that action has been taken against anti-social individuals can also provide reassurance to the public that action can and will be taken, and can act as a deterrent to other individuals behaving without due consideration for their community. However, these legitimate aims must be weighed against the effect on the young person of making it known to their community that they have been subject to a formal court order, albeit a civil one. We made it quite clear in the draft guidance that we published last month, of which noble Lords are aware, that local agencies must consider whether it is necessary and proportionate to interfere with the young person’s right to privacy and whether it is likely to affect a young person’s behaviour, with each case decided carefully on its own facts.

Furthermore, the courts are used to making sensitive decisions, having been dealing with such cases since the reporting arrangements for ASBOs were changed by the Serious Organised Crime and Police Act 2005. The courts reinforced this position, as illustrated by the wealth of case law on the issue, by upholding the legislation that allows for reporting of under-18s and makes it clear that it is sometimes necessary. The legislation that we are examining today has been drafted to mirror these same provisions. This has worked in the past, and the case law provides further guidance on the factors that should be considered, and on how the court should go about making such decisions.

However, the Bill has made some changes that go further towards ensuring that the rights of young people are always properly considered. We see the role of the youth offending team as key. These front-line professionals work directly with young offenders to tackle the underlying causes of their behaviour. The Bill states that the youth offending team must be consulted before an application may be made for either an injunction or a criminal behaviour order. It will be able to give an invaluable insight into the effects that reporting would have on a young person, to allow for more informed decision-making by applicants and the courts on this issue.

It is worth pointing out that once these powers are in place, all applications for injunctions will be heard in the youth court, which is not currently the situation for ASBOs. The youth courts are best placed to make such decisions, so this move will also ensure that the right outcomes on reporting for the offender and the community are achieved. The noble and learned Lord, Lord Hope, is quite right. Discretion rests wholly with the court. The applicant for an injunction can express a view to the court on this matter, but the decision rests with the court.

My noble friend Lord Paddick asked whether there would be a presumption that reporting was permissible unless stated otherwise by the court, meaning that you would end up with a badge of honour situation. We are trying to change the way we deal with anti-social young people. We are focusing on working with the young person. All the debates we have had on IPNAs show how this new system provides a fresh approach to this issue. It will allow the youth offending team to be party to the decision-making process. The team is likely to be working with the young person already and will be able to advise on what current interventions are in place, whether the young person is engaging and what effects publicity may have. I think that covers the point made by my noble friend Lady Linklater.

I am a little surprised by the view taken by the noble Baroness, Lady Smith, because the previous Administration introduced these provisions in Section 49 of the Children and Young Persons Act through the Criminal Justice and Immigration Act. I shall quote the noble Lord, Lord Bassam, who was then a Home Office Minister, because it is very important to show that there has been a degree of unanimity on this among those of us responsible for dealing with these matters. Publicising procedures is a very important part of the local agencies’ attempts and efforts to deal with anti-social behaviour. The noble Lord said:

“It is about people being aware of those who have been challenged over the effects of their behaviour through the ASBO process. That challenge is very important. I believe, and I know that my colleagues believe, that we need to demonstrate to young people what unacceptable behaviour is. We need to draw a line. People need to understand exactly when behaviour is acceptable and when it is unacceptable. It is in the absence of those clear messages—those clear dividing lines—that young people get into the habit of the abusing behaviour that can have such a profound and damaging impact in our communities. So, yes, I do agree that publicity surrounding proceedings is an important part of the process. It is not about naming and shaming. I do not accept that tag, or title, at all”.—[Official Report, 23/4/08; col. 1612.].”

[Baroness Smith of Basildon]

Those are wise words indeed, but will the Minister confirm that my noble friend Lord Bassam was speaking about anti-social behaviour in terms of harassment, distress and alarm, and not an IPNA, which is to cause nuisance and annoyance?

[Lord Taylor of Holbeach]

The noble Baroness will know that an IPNA can be applied also in cases where there may have been harassment, alarm and distress, so although nuisance and annoyance is the test for an IPNA, it is not the absolute or exclusive text.

[Baroness Smith of Basildon]

This clause would apply to those who have committed a breach of an IPNA by causing nuisance and annoyance. Would that be correct?

[Lord Taylor of Holbeach]

The noble Baroness is quite right, but what we are seeking to do is to enable the IPNA-based process—at the discretion of the court, which I must emphasise to noble Lords, and in conjunction with the advice of the youth offending team—to determine whether this is the best way of dealing with this young person.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, the noble Earl, Lord Listowel, made some interesting and useful points. We sympathise with the comments that he made and with these amendments. As the noble Baroness, Lady Hamwee, said, I do not want to repeat the comments made in the earlier debate on the amendments of the noble Lord, Lord Ramsbotham. However, I asked questions in that debate that the Minister did not answer, and similar questions apply in this debate.

The Minister will recall that I asked about the evidence base for the proposals brought forth by the Government. In that case, it was about what assessment had been undertaken to evaluate the safeguarding of the risk to children. He was not able to reply then and I am happy for him to write to me. The same questions apply here. They concern the evidence base on which the Government are bringing forward these clauses. A number of children’s and young people’s charities have contacted Members of your Lordships’ House with concerns about whether, in the clauses we are debating and in our previous debate, the breach of civil orders is against the rights of children and whether it would do more harm than good.

As I said then, I hoped that the Government have an evidence base on which they are bringing forward these amendments, but the Minister was not able to answer. I hope that he can on this occasion. One part of my question is about consultation around these proposals and the previous provisions. The second part of it is on the assessment that is undertaken to evaluate, in the previous case, the risk and, in this case, the effect of the Government’s proposals. Are the Government prepared to have a review period in both cases to see whether they have been effective and what changes should be made?

[Lord Taylor of Holbeach]

My Lords, I thank the noble Earl, Lord Listowel, for picking up the amendments of the noble Lord, Lord Ramsbotham, and presenting them in the way that he has. In replying, I am very happy to have a meeting with those Peers who are interested in the impact of the Bill and its provisions in general on young people. That would be useful. We have had some productive debates on the issue here in Committee. I hope that I have been and am able today to show that we see our role in seeking to prevent anti-social behaviour as one that tackles the difficulties that some young people have, and in rehabilitating and supporting them.

This brings us back to whether it is right for young people to face the full range of criminal sanctions when they act in a way that is seriously anti-social: I emphasise “seriously”. I understand the points that have been made by all noble Lords who have spoken: the noble Earl, Lord Listowel, my noble friends Lady Hamwee and Lady Linklater, and the noble Baroness, Lady Smith of Basildon. They have all expressed the importance of rehabilitation, especially in cases concerning young people. That is why it is so important that the injunction under Part 1 and the criminal behaviour order that we are discussing here can include positive requirements to help them turn their lives around.

Youth rehabilitation orders are often a fair and proportionate way to deal with a young person who has been convicted of an offence as an alternative to custody. Use of such orders is in line with the intentions of the Bill: that informal interventions and rehabilitative approaches should be used first and foremost, in particular, when dealing with young people. However, it is right that tough sanctions are available on breach.

Amendments 22KB and 22KC seek to restrict the sanctions on breach of a criminal behaviour order for under-18s so that a youth rehabilitation order must be made. Breach of a criminal behaviour order is an offence. There is no danger of this criminalising someone for the first time because an order can be made only once they have been convicted of a criminal offence. It is worth remembering that the criminal behaviour order is aimed at tackling the most serious offenders, and that by the time that it is breached an offender may already have failed to respond to positive requirements aimed at addressing the underlying cause of their anti-social behaviour. They may also already have had a youth rehabilitation order made in respect of their offending. We would expect the youth courts to do all they can to ensure their rehabilitation when considering the sanction for a breach. This may well be a rehabilitation order but it is right that they have the discretion to impose the most appropriate penalty in a given case, including a fine or, in the most serious cases, custody.

On the dispersal power, there needs to be an effective and serious consequence to breaching a dispersal order which is imposed by a police officer. Clause 37 provides the option to apply a fine or a prison sentence of up to three months. We expect the court to use these sentences appropriately and proportionately in accordance with sentencing guidelines. The three-month sentence is the maximum sentence available to the court and it may impose a lower sentence if appropriate, including a youth rehabilitation order if the offender is under 18. However, there may well be some young people for whom a fine or even detention is appropriate, and I would not wish to tie the hands of the youth courts which, after all, will have access to all the evidence and will be best placed to make a decision in individual cases.

I hope I have been able to reassure the noble Earl that the sanctions available on breach of the CBO and the dispersal power will help the courts. From the comments of the noble Baroness, Lady Smith, one could be forgiven for thinking that breach of an ASBO was not an offence subject to a maximum penalty of five years’ imprisonment, which is what the previous Government legislated for. This sanction applies to the ASBO and the sanction of imprisonment applies to young people as it does to adults. Like the previous Administration, we believe that tough remedies should be applied on breach where it is appropriate. It is for the courts to test what is appropriate, and the test for the CBO is analogous to that for the ASBO, as the noble Baroness would expect.

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[Baroness Smith of Basildon]

Having listened to the noble Lord, I am sorry that I missed that debate. However, I get his point about locality and location; I just seek further clarification on how that can be dealt with.

I have a couple of other points. The 48 hours that the Government propose for these dispersal orders are twice the period in the Anti-social Behaviour Act 2003. I understand that the only other legislation that permits dispersal powers in this way is the Violent Crime Reduction Act. I would understand why a longer timescale would be used in connection with violent crime. However, we are not talking about violent crime but about anti-social behaviour. There must be some evidence base for why the Government think that 48 hours rather than 24 hours is appropriate.

It would be helpful if the Minister could talk us through “Directions excluding a person from an area”. I have had conversations with those who could be practitioners in this area of legislation, and some of them seem to be slightly confused by how it will work. It is quite clear how the current process works, but how will such a direction to exclude an individual or group of individuals from an area work? If they are to be excluded from a locality for 48 hours, does somebody draw a handwritten map—“This is the area that you’re going to be excluded from”—to make clear where it is? Who else should be notified? Forty-eight hours is quite a long time. If there has been no local authority consultation and it has all been done very quickly, how do the person and other authorities know that they are to be excluded for 48 hours? If the direction is to be withdrawn or varied, how will they and others be notified? This lack of involvement and consultation with the local authority gives rise to a number of practical questions. I would be grateful if the noble Lord would on this occasion be able to answer my questions—which he has not, so far, been able to do on any other occasion, although I am getting used to it—and talk us through the process.

[Lord Taylor of Holbeach]

My Lords, I might have preferred to be participating in the passage of the CRoW Act, although it seems to have been a merciful release that I was not here to be involved in those debates. This is the first time we have had a chance to talk about dispersal orders, so it would be useful to give the background of what we want to achieve by them and try to answer the questions that noble Lords have asked me.

The new dispersal power will allow the police to deal quickly—I emphasise that word—with anti-social behaviour centred on a particular locality, nipping such behaviour in the bud before it escalates and providing immediate respite to the victims of the anti-social behaviour that is the cause of the difficulty. The new power combines the best elements of the current legislation into a single, more effective and less bureaucratic tool. When I come on to the business of liaison with local authorities, I think that the noble Baroness and the noble Lord, Lord Harris, will see what I mean by that.

The current process can be very slow, and as a result victims and communities can suffer for a number of months before the police can act. Part of the problem is that the existing dispersal power can be used only once a dispersal zone is in place, and a zone can be designated only following consultation with the local council. The new power will not require prior consultation, so it can be used more quickly. However, we recognise that there should be some supervision of the new power, and in this respect the provision has benefited from scrutiny by both the Home Affairs Select Committee and the Joint Committee on Human Rights. Responding to points made by the HASC, we have included the safeguard that the dispersal power must be authorised by an officer of at least the rank of inspector. The authorisation may be given if the officer is satisfied on reasonable grounds that use of the dispersal power may be necessary in a specified locality during the specified 48-hour period.

The requirement for the officer to be satisfied “on reasonable grounds” was included on the recommendation of the Joint Committee on Human Rights. We had intended it to be part of the test when the Bill was introduced, and we believed it to be implicit. However, in this instance we agreed with the committee that it would be clearer to have that explicit in the Bill. I am grateful to the committee for drawing this to our attention. The addition of “reasonable grounds” further emphasises that the test for authorising use of the power is objective.

On Amendment 22L, tabled by my noble friend Lady Hamwee, the two elements of the test will mean that officers consider whether use of the dispersal power is a proportionate response to the problem at the particular time and locality. As a public authority, the police must also exercise their powers proportionately under general public law principles and human rights obligations. It is not, therefore, necessary to include “proportionate” in the Bill. I am firmly of the view that the safeguards in the legislation will ensure that the dispersal power is used appropriately, based on local knowledge of the area and on intelligence that there are likely to be problems at a specific time.

I return to the question of locality. My noble friend has put forward Amendment 22N to ensure that an authorisation clearly identifies the locality where the dispersal power can be used. The authorisation for the use of the power must be given in writing, must be signed by the officer giving it, and must specify the grounds on which it is given. These grounds must include the specified locality and time period for which the authorisation applies. My noble friend’s amendment is therefore provided for in Clause 32(1), which states that the time and location for which the dispersal may be used are as specified in the authorisation. Perhaps I can elaborate on that.

Clause 32(1) and (2) are concerned with this authorisation process, so the intention is that the reference to locality in both subsections has the same meaning; i.e. they cover the same geographical area to be specified in the authorisation. As drafted, the Bill makes this clear. The new dispersal power will allow the police to respond swiftly and flexibly. For example, on a particular housing estate where there is likely to be anti-social behaviour at the weekend, an inspector could pre-approve use of the new power by his or her officers. Alternatively, if an incident occurred at a different time of the week when it had not been anticipated, a police officer could contact an inspector for authorisation to use the dispersal in that specific instance.

Amendment 22M, tabled by the noble Baroness, Lady Smith, and supported by the noble Lord, Lord Harris of Haringey, raises an important issue for the Local Government Association regarding consultation with local authorities. As noble Lords know, I have had meetings with the Local Government Association Safer Communities Board. The association has expressed some concern about the impact of these dispersal powers on community relations and has therefore argued for them to be subject to democratic oversight. I understand this point, but to require consultation would seriously undermine the flexibility and utility of the power and would reinstate precisely the difficulties we seek to remove from the current system.

However, the draft guidance states that the authorising officer may wish, where practical, to consult with the local council or community representatives before making the authorisation, in particular where there are concerns about community relations and the use of the dispersal in a particular area. Therefore, for example, when planning the policing of a football match, the police might decide to authorise use of the dispersal in the area surrounding the stadium. It is likely that the police already work with the local authority in planning this kind of event, and this would include a discussion on the use of powers in such a dispersal.

This issue was raised when I met with the Local Government Association recently. I agreed to include in the guidance that it is good practice for the police to inform the local authority after the dispersal authorisation is used. This will help the local authority work with the police to plan longer-term solutions in areas where there are persistent problems. I remind your Lordships that the Government have published this guidance in draft to assist with scrutiny of the provisions.

I agree that accountability is important, and Police and Crime Commissioners now have a vital role in holding forces to account on behalf of the public. Police forces will be required to keep records of the use of the dispersal power and, while there is no duty to do so, they may wish to publish data in the interests of transparency. Police forces can share data about the use of the dispersal power with councils to assist in their crime prevention planning, and plan longer-term solutions to hot-spot areas. The draft guidance that accompanies the legislation emphasises the importance of involving the community in taking a problem-solving approach in areas with persistent problems. Clearly, this would be a case in which we would expect police forces and local authorities to work closely together.

The current Section 30 dispersal power has worked well in some areas to deal with longer-term issues. Those powers are led by the police with local authority consultation. We have acknowledged the important role that local authorities have played in this and have designed the new public spaces protection order to be used in much the same way by local authorities to deal with persistent, long-term problems.

I will deal with some particular questions asked by the noble Baroness. On the question of dispersal orders, she thought that people might be confused about what is actually involved in being dispersed. Much of the new power is available to the police now, but guidance will share good practice on how the dispersal orders should be used. In most cases, the officer will provide this information in writing and, in many forces, officers actually provide a map for the person given the dispersal order to show them the area from which they are excluded.

[Baroness Smith of Basildon]

I do not want to disrupt the Minister as he answers other noble Lords’ questions, and I am grateful to him for answering one of the questions that I raised. I just wondered whether he is going to come to the other questions I asked, about the representations he received that the current process was inflexible, and what examples he had of those. I also asked why the Government have not abided by their response to the Home Affairs Select Committee, as they committed themselves to do.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 18th November 2013 Lords Chamber

[Baroness Smith of Basildon]

We want the Government to justify their position. As I said at the beginning, I think it appropriate for young people to be held responsible for their actions, but I want to probe why the Government think that this kind of injunction is appropriate. The anti-social behaviour order, as we shall debate later, required a much higher level of proof of nuisance. In the injunctions contained in amendments made in 2003 to the Housing Act, there is a lower level, as we have heard from the housing associations which have contacted us. In this specific instance, I think that the Government need to justify why they consider this injunction appropriate as the only means of dealing with such behaviour.

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

My Lords, I am grateful to my noble friend Lord Greaves for tabling this amendment, because it does seem to be a good place to start. The issue has certainly triggered a lot of arguments from colleagues, if I may say so. We have set this age of 10 because that is the age at which children are currently deemed capable of being responsible for their actions under the criminal law. My noble friend showed quite clearly that this is something that has been enshrined in legislation for some time, but I emphasise that the focus of the injunction is to nip issues and problems in the bud.

Many of us agree that the move away from automatic criminalisation of young people is a step in the right direction; noble Lords have backed the Government’s decision to move in that direction. Breach of an injunction does not result in a criminal conviction, giving the young person a chance of reform with a clean slate. This is not the case with anti-social behaviour orders, where breach is a criminal offence; this change has been widely welcomed by, among others, the Home Affairs Committee in another place. In addition to the injunction, positive requirements can be used to help address the causes of a young person’s anti-social behaviour, to help them to turn their life around before that behaviour escalates to something more serious.

We have also built in requirements for the local youth offending team to be involved at different stages in the process, to allow for the proper and thorough consideration of the needs of the young person. This goes far beyond what was required for the anti-social behaviour order. Furthermore, on the recommendation of the Home Affairs Committee, we have limited the maximum period of an injunction to 12 months where it is issued against someone under the age of 18, whereas the minimum duration of an ASBO is two years. Twelve months will provide agencies with sufficient time for them to work with other agencies to address any underlying issues driving anti-social behaviour. It strikes the right balance between providing victims with the respite they need and sending a strong message to young people that anti-social behaviour is not acceptable.

My noble friend Lady Hamwee emphasised the importance of the guidance. We have published draft guidance for front-line professionals and I hope that noble Lords will take time to have a look at it. I think they will find that it complements what the Bill seeks to do, and it is a very important document. It is available on the Home Office website, but if those who want a hard copy let me know, I will ensure that one is sent to them. It will be relevant to the youth offending teams and, in relation to Part 6 of the Bill, to police and crime commissioners; again, my noble friend mentioned how important the role of the PCCs could be. We are consulting on the draft guidance at the moment, and we would welcome comments from noble Lords on what it should include.

The noble Earl, Lord Listowel, asked about reporting restrictions. We are going to come to that issue; it is in this early part of the Bill and will be debated as we have amendments down to discuss it. Amendment 21A has been tabled by my noble friend Lady Hamwee. I hope that the noble Earl will be able to be involved in that debate.

The noble Lord, Lord Ramsbotham, mentioned that the House is of course considering the Age of Criminal Responsibility Bill, introduced by my noble friend Lord Dholakia. He also questioned the risk of a lack of co-ordination across government. I hope—indeed, I have had private conversations with the noble Lord about this—that all this legislation is of a piece. It is designed to address the failure of Government to get on a child-focused agenda. The IPNA in particular is part of our Home Office legislation to reinforce child focus, and victim focus, in the same legislation so that we successfully tackle anti-social behaviour.

The noble and learned Lord, Lord Hope of Craighead, mentioned the question of the guidance and whether courts could be included in it. In theory, court rules could cover this, provided that the relevant rule-making committees agreed. We will consider the utility of this, as well as whether guidance could play a useful role here. I look forward to hearing from the noble and learned Lord on this issue.

If I may say so to the noble Baroness, Lady Smith, the timing of this particular day’s business, which I think all noble Lords will have found themselves swotting up on a little more earnestly than they might otherwise have done, was agreed through the usual channels, and indeed I understand from my colleague that the proposal was welcomed by the opposition Chief Whip, although I was not in the Chamber at the time.

I emphasise to the noble Baroness that the IPNA is not the only means of addressing anti-social behaviour by children. We have made it clear in the draft guidance that the police, local authorities and others should consider a non-interventionist basis in the first instance if they can do so. The Bill also provides for more serious cases at the other end with the criminal behaviour order, so there is a flexible response to the phenomenon. As I said earlier, the youth offending teams—

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[Lord Taylor of Holbeach]

The penalties, set out in Schedule 2, include up to two years’ detention for children of 14 or over, but only in exceptional cases. The noble Lord has invited me to write to him on this issue and I am very happy to do so. I hope he also has the opportunity to read the guidance because that will help in his understanding of how the IPNA is meant to operate on the ground, in particular cases, and will help inform him just as much as my letter will do.

[Baroness Smith of Basildon]

I am sorry to intervene on the noble Lord, but I asked a question about Article 3 of the UN Convention on the Rights of the Child and the comment made by the Joint Committee on Human Rights that this Bill has no requirement to consider a child’s best interests, their specific needs or learning difficulties. Why does the Bill have no reference to that?

[Lord Taylor of Holbeach]

That will be the subject of a later amendment, but I can reassure the noble Baroness that, as a legal process is involved, the courts have to take into account the human rights of anybody who is before them. It is not for the Bill to make that explicit: it is a matter of practice within the courts.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 18th November 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I think that I can be very brief at this point. I have sat in the noble Lord’s place, albeit in the other place, and one thing he will have in his file is a note on the amendment saying, “Resist”. May I tempt him not to on some occasions? Amendment 20 in the name of the noble Lord, Lord Faulks, seems eminently sensible and reasonable. It actually seeks to put some necessary clarification in the Bill. The Minister said he would look very sympathetically, and I hope he will, at Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins. There is a serious issue about people with learning disabilities. It does not mean that they are not capable of causing distress through anti-social behaviour, but the measures by which it can be addressed and dealt with have to take into account any special measures and any learning disabilities that an individual may have. I hope that the Minister can look favourably on both those amendments.

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

My Lords, I may be about to surprise the noble Baroness. Well, to some degree—modestly surprise her. With these amendments we return once again to the issue of the test. I understand the concerns that noble Lords have articulated. Some of the arguments are returning to this issue and it is very important that we debate them and get them clear in our minds. I shall start with Amendment 20GA in the name of the noble Lord, Lord Wigley, and the noble Baroness, Lady Hollins.

This amendment raises the important issue of the proper considerations which must be considered in applications for IPNAs under Part 1 against respondents with learning disabilities. The amendment may not be necessary, because I have already spoken at length about the test for the injunction and the two limbs of the injunction, but I reiterate that, in deciding whether to grant an injunction, the court will consider whether it is fair, reasonable and proportionate to do so. That is within the terms under which a court would consider any injunction. In doing so, the court will be aware of its obligations to prevent discrimination against any respondent and to ensure that a respondent’s human rights are respected. Of course, the court will also ensure that the respondent is capable of complying with the terms of the injunction—indeed, that is specifically mentioned in the guidance. If the noble Lord will look at that section he will find that it is referred to. It is all part of the “just and convenient” part of the test which goes along with the whole business of nuisance and annoyance as being a joint, two-limbed test.

Returning to Amendment 20B, my noble friend Lady Hamwee pointed out that the Housing Act refers to “a nuisance”, not simply “nuisance”. I can reassure her that the test for the new injunction is based on that used for anti-social behaviour injunctions in the 1996 Act. No difference is intended but one of the two usages had to be used in this case to provide that continuity. Similarly, in respect of Amendment 20C, the use of the term “annoyance” in addition to “nuisance” also derives from the Housing Act 1996. The two terms will take their ordinary meaning. The dictionary definitions we have heard from my noble friend Lord Greaves are very interesting, but there is a meaning in law, by precedent, which is clear to the courts and, indeed, the Law Society has made clear that it welcomes that definition. They are commonly used together and may cover a broader range of behaviours than either would alone. We see the benefit in retaining the familiar test that includes both; that was mentioned in previous debates.

My noble friends Lord Faulks, Lady Hamwee and Lady Berridge, and the noble and learned Lord, Lord Hope of Craighead, all made similar points about Amendments 20 and 20H, as, indeed, did the noble Baroness, Lady Smith. The amendment in the name of my noble friend Lord Faulks was, of course, one of those recommended by the JCHR. Both amendments seek to add an explicit test of reasonableness to the threshold for making an injunction. The Government are aware of the concerns about the test for the injunction under Part 1 and I listened carefully to those concerns expressed at Second Reading and again today. I agree that it is important that the courts consider reasonableness, fairness and proportionality in deciding applications for injunctions to prevent nuisance or annoyance. The courts will consider these factors as a matter of course as part of the second limb of the test—that it is just and convenient to grant an injunction—as I said in my answer to the amendment in the name of the noble Lord, Lord Wigley. However, the courts will be aware of their obligation to discharge their functions compatibly with the European Convention on Human Rights, an exercise which requires a consideration of necessity and proportionality. However, we will want to consider whether we have done everything necessary to ensure that this is so with the drafting of Clause 1.

That is not to say that we necessarily agree with the amendments as they are drafted. Both would revise the “nuisance or annoyance” test, and I have made it clear that we see the merit in keeping a test that is already familiar to the courts. However, we want to consider whether we can make it clearer in the legislation that the courts must be satisfied that it is reasonable to issue an injunction under Part 1. This is what the amendments seek to achieve and, in that sense, we are not very far apart on this issue, so I will reflect carefully on Amendments 20 and 20H in advance of Report.

In conclusion, the test for the new injunction is tried and tested, it has a long pedigree and I see no evidence that it has given rise to the difficulties that a number of noble Lords have suggested in this and previous debates. The previous Administration sought to recast and strengthen the “nuisance or annoyance” test for an anti-social behaviour injunction back in 2003. This House endorsed that strengthening and on this issue, as I have said before, I am happy to endorse the position then taken by the noble Lord, Lord Bassam. The police, local authorities and others will not act lightly in seeking an injunction. They and the courts must exercise such powers in a reasonable, fair and proportionate manner. As I have said, I am ready to take away Amendments 20 and 20H and explore, without commitment, whether it would be appropriate to introduce into the test an explicit reference to reasonableness. That point aside, for the sake of the victims of anti-social behaviour, who must be at the forefront of our deliberations on the Bill, I would be loath to weaken the effectiveness of the new injunction. I have no doubt that we will return to this matter on Report. I thank noble Lords for speaking to their amendments and I hope that they will be content not to press them.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 18th November 2013 Lords Chamber

[Baroness Smith of Basildon]

I just hope that that never happens to the noble Lord. I am sure that he would never give this House any cause to accuse him of nuisance or annoyance and therefore breach his IPNA. Actually, it would make a difference. If somebody breaches their IPNA and it goes to the full conclusion of being taken to court and their receiving a custodial sentence, the level at which they have breached is very low. With an ASBO, there is a much higher threshold. In terms of costs, my information is from the police, who say that it is a more complex process to pursue breach of an IPNA than it is with the automatic breach of an ASBO. We also see the number of breaches of ASBOs, because of their seriousness, coming down. That is why the police indicate to us that they think that there are significantly greater costs in dealing with a breach of an IPNA.

I do not know if the noble Lord had the opportunity to read the reports in the other place of the evidence-taking sessions before the clauses were debated. Gavin Thomas, who is the vice-president of the Police Superintendents’ Association, said,

“there is a cost because we have to have people to pull together the case, take it to court and enforce it, so there is a cost”.—[Official Report, Commons, Anti-social Behaviour, Crime and Policing Bill, 18/6/13; col. 9.]

In written evidence to the Committee, the noble Baroness, Lady Newlove, who spoke eloquently at Second Reading, said that she was concerned,

“that the injunction to prevent nuisance and annoyance could potentially add to the workload of front line officers because of their lack of knowledge of civil law”.

That is a matter that has been raised by the police as well.

We hear quite horrific tales of anti-social behaviour. We should be under no illusion that it is just nuisance and annoyance on the odd occasion; there are some serious cases. As a former Member of the other place, I dealt with constituents. In one case, a man could no longer sleep in his home, another would sleep on the kitchen floor; somebody else was too frightened to go to sleep. Those were ongoing cases.

In some cases, enforcement was the problem, but we need to have the right tools. The Government are seeking in the legislation to reduce the number of tools available to those taking action and then to put in place additional costs, which will make action difficult to enforce. I am asking the Minister for an explanation of why, when ASBOs are becoming more effective, are working and have a value, they are being reduced.

The Minister is shaking his head at me, but there is a great deal of difference between somebody causing nuisance and annoyance and somebody causing harm, distress and harassment. They are very different and there are times when different measures are appropriate. So far, I do not think that the noble Lord has satisfied people in your Lordships’ House, on amendments to other clauses or on this one, as to why the Government are seeking to deal with just annoyance and nuisance while losing the measure of an ASBO, which has served us well. It is not perfect, and we are happy to see changes to it, but the changes which the Government propose do not address the problem.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I should begin by refuting the suggestion of the noble Baroness, Lady Smith, about our focus on IPNAs at the expense of other measures. She has admitted that there are six measures involved in anti-social behaviour prevention and control, so the IPNA is one part of a suite of measures in the Bill. She makes no mention of the criminal behaviour order, which clearly provides much of the cover which was given by the ASBO.

[Baroness Smith of Basildon]

The noble Lord is wrong. My second amendment refers to criminal behaviour orders and I spoke to those in the course of my speech. I am surprised that he says I did not mention criminal behaviour orders when I tabled a whole amendment on them.

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[Baroness Smith of Basildon]

I apologise for intervening on the Minister, but I wonder if he thinks he has answered the question that I asked about costs. If he does, his response was completely inadequate. I asked what assessment had been made of the costs and quoted the impact assessment, and I asked whether the Government had considered whether or not the imposition of positive requirements would be related to the funds available. The Minister has said that these will be made and funded locally, and that he makes no apologies for local government deciding how they are funded. If there are additional costs on local government, surely the Minister and the Government should have some understanding of what those costs are going to be. He may be coming to the point about what guidance will be issued, but I think that he said that there would be no guidance on what measures could be introduced.

[Lord Taylor of Holbeach]

I was coming to that point, but I shall just deal with the cost element. The impact assessment, as the noble Baroness rightly says, did not hazard a guesstimate of that figure; in many ways it would have been a meaningless guess because we cannot know all the facts. We cannot know the extent to which local organisations, local authorities and voluntary organisations are already participating in much of that activity which is designed to help young people, or indeed older people, who are in difficulties. Much of the voluntary sector is dealing with this work. The whole point of the framework of the IPNA is that it provides a framework in which groups such as this can operate effectively. We are certain that there will be savings as well as additional costs in the reduction of anti-social behaviour that is going to follow from these measures. I will continue, if I may, because the noble Baroness wanted to know about the guidance.

The emphasis on empowering front-line professionals and giving them the flexibility to respond to individual needs is the reason why we have not provided detailed guidance on this point. That said, we have published draft guidance for front-line practitioners where we have included a steer on positive requirements and issues that local practitioners might like to consider. Pages 25 and 32 of the draft guidance provide examples of the sort of positive requirements that might be possible. We have deliberately not set out to provide an exhaustive list, as we do not want to produce a limited menu. Instead, we want to allow local practitioners, who are best placed to judge what positive requirements are likely to have the greatest positive impact on an individual, to remain unfettered in their use of positive requirements and allow for new and innovative interventions to be developed.

As I said, this is a draft document and if further, more detailed guidance would help front-line practitioners we can look at this again as we work to produce a final version. If noble Lords feel they can contribute to producing the final document, they are, as I said earlier, most welcome to do so. It is a testament to our commitment that we have published draft guidance. I have stood at the Dispatch Box and had to talk about guidance which is to come, which may be part and parcel of the implementation of legislation, without having the document in front of me. In this Bill, we are fortunate: we have the draft guidance on which we can base our discussions. We intend to publish this on a non-statutory basis, but I am quite prepared to acknowledge that we are ready to consider whether our commitment to produce such guidance should be reflected in the Bill.

[Baroness Smith of Basildon]

I apologise to the noble Lord for intervening, but I want to clarify, to make sure that I have not misunderstood what he said. Is he saying that, because they cannot quantify the costs at the moment, the Government do not know what those costs will be? Will he give an assurance that the Government will meet those costs or is he saying there will be no contribution from the Government to any additional costs incurred by local authorities in IPNAs or criminal behaviour orders?

[Lord Taylor of Holbeach]

I can give the noble Baroness some sort of figures on the comparative costs. It has been suggested that it will cost £1,500 to pursue proceedings for breach of an IPNA and that was quoted. However, the National Audit Office reported in 2006 that the average cost of prosecution for breach of an ASBO was around £1,500. So, if the figure for pursuing a breach of Part 1 is correct, it will be no more expensive. In addition, the new injunction will be quicker to obtain than a stand-alone ASBO. The National Audit Office found the average cost of obtaining a stand-alone ASBO was about £3,100, compared with a cost of £1,600 for one of the existing injunctions which, like the new injunction, uses the civil standard of proof. The lower test and lower standard of proof will speed up the evidence-gathering process for injunctions and enable—

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords—

[Lord Taylor of Holbeach]

I will finish what I am saying, if I may. I will not sit down before the noble Baroness has a chance to intervene. The lower test and lower standard of proof will speed up the evidence-gathering process for injunctions, enabling agencies to act more speedily in stopping further harm to victims.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for allowing me to come back on him, because he misunderstood. I was asking about the costs and the funding of positive requirements. Although I mentioned the cost of proceeding with the breach of an IPNA, that was not the point I raised when I intervened on the noble Lord. He must have had an earlier note. I am asking if I had understood his point about the cost of positive requirements and whether the Government would make any contribution, bearing in mind the additional burdens doctrine. Was he saying that there will be no additional costs in pursuing positive requirements?

[Lord Taylor of Holbeach]

The Bill makes no provision for the funding of costs.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, the noble Lord has asked me a number of detailed questions. If he does not mind, I will look at the record and write to him, as I do not have the briefing here to be able to reply in detail to all that he wishes to know.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. He did not fully address a couple of questions in the points that I made. One of the issues was about delays in county courts. I did not say that county courts were facing delays—that came from local government, the police and the Home Affairs Select Committee in the other place. The other point I raised was that, if he is not prepared to consider guidance prior to this being introduced to ensure that county courts are able to deal with these matters in a timely way, will he agree to consider and bring back to your Lordships’ House at Report a statement on whether, rather than having guidance beforehand, it is possible to truncate the normal five-year review period to see whether it is working? This issue should be reviewed after one year to see whether there are delays in the county court system which slow down the process of justice, or whether, as the Minister said, everything is working fine and there is no problem.

The delays at the moment are occurring for a number of reasons—they are under pressure to reduce staffing in county courts, and my noble friend Lord Beecham also raised some of the issues. I also understand that there are more litigants in person because of the reduction of eligibility for civil legal aid. Both those issues add to the delays in the system. We do not need to have a process whereby people suffer anti-social behaviour when someone has breached their IPNA and then there is a lengthy delay while they wait for the courts to assess whether an arrest warrant can be issued. Therefore, if the Minister rejects out of hand the issue of guidance beforehand, will he agree to look at truncating the review period and review how it is working after a year rather than five years?

[Lord Taylor of Holbeach]

I will take a look at the record and if I feel that it will be productive and I can add to the position they have stated I will write to the noble Lord, Lord Beecham, and the noble Baroness. I cannot commit to a particular timeframe, but if there is evidence of a problem to which the noble Baroness is able to draw my attention, I will deal with it.

EU: Free Movement of Labour

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 5th November 2013 Lords Chamber

[Lord Taylor of Holbeach]

I accept that the noble Lord is quite right in saying that free movement was one of the founding principles of the European Union, and we in this Government support it. Although the vast majority of individuals coming to the UK reside here lawfully and make a positive contribution to our society, a small minority abuse these rights by either becoming a burden on their local communities or turning to crime.

[Baroness Smith of Basildon (Lab)]

My Lords, in each answer the Minister has spoken of abuse of the system. Does he accept that enforcement of the national minimum wage helps to prevent bad employers undercutting the wage of local workers by not allowing them to exploit foreign workers on lower wages? We know that that is a real problem but only two prosecutions have been brought since this Government took office. To help tackle this issue, will the Minister and the Government support us by giving local councils the power to enforce the national minimum wage and bring their own prosecutions?

[Lord Taylor of Holbeach]

The noble Baroness has expanded the Question somewhat into Labour policy and that is not necessarily something on which I can support her. However, I reaffirm the Government’s support for the national minimum wage. Indeed, it has never been part of our policy to do other than to maintain a national minimum wage, and we do so regularly.

Democratic Republic of Congo

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 24th October 2013 Lords Chamber

[Lord Taylor of Holbeach]

I thank my noble friend for making sure that I had seen a copy of Catherine Ramos’ report; in fact I had been briefed on the report, and the Home Office is taking it seriously. This report is being considered in detail, just as we considered the first one in the series. It was published at the beginning of this month. The initial view, considered against other evidence, including the information that we have from other European countries, is that it will not warrant a change in our returns policy.

[Baroness Smith of Basildon (Lab)]

My Lords, does the Minister understand the concerns about the quality of decision-making? Some 30% of appeals against initial asylum decisions were allowed, meaning that nearly one-third were wrong. In more than one in 10 cases reviewed by inspectors, selective information from the country of origin reports had been used to deny claims. We have to get this right because asylum should be granted only when it is genuinely needed, but there is now a serious fear that those at great risk of violence are being denied a safe haven.

[Lord Taylor of Holbeach]

I hope that the noble Baroness was impressed by the figures that I gave earlier and that she understands that this process is undertaken with proper deliberation. The current country case law from the immigration and asylum Upper Tribunal concludes that there is no evidence that failed asylum seekers involuntarily returned to the DRC face a real risk of persecution or ill treatment merely because of an unsuccessful asylum claim in the UK. This was a conclusion upheld by the Court of Appeal in 2008. In 2012 the Court of Appeal found that country guidance remains the law until it is set aside or superseded.

Alcohol: Late Night Drinking

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 16th October 2013 Lords Chamber

[Lord Taylor of Holbeach]

I would not want to venture into a discussion with the noble Baroness, Lady Meacher, on the question of drugs. I believe that we have a debate on this tomorrow. Alcohol is clearly harmful if taken to excess and is responsible for considerable economic damage to the country as well as for health service costs.

[Baroness Smith of Basildon (Lab)]

My Lords, it is worth noting that alcohol consumption dropped by 13% between 2004 and 2010, though it seems to have increased since that time. I cannot imagine why. However, we recognise that problems remain, and more needs to be done to tackle anti-social behaviour connected with the excess drinking of alcohol. I am rather concerned at what the Minister said in response to my noble friend Lord Mackenzie, who has been president of the Police Superintendents Association, about the late-night levy and the actions that police superintendents can take. This has not been a success. Problems still continue. Only one late-night levy is about to be introduced and others have not been. Can the Minister assure me that, when the anti-social behaviour Bill is debated in your Lordships’ House, the Government will seriously consider our amendments, rather than reject them, as they did in the Commons?

[Lord Taylor of Holbeach]

I cannot promise to accept opposition amendments to the Bill, but I am sure that noble Lords will consider all amendments that are tabled. However, I can assure the noble Baroness that this is an important piece of legislation, and I hope she recognises that the measures being introduced by the Government are designed to tackle the anti-social elements that drinking can cause.

Alcohol: Minimum Pricing

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 24th July 2013 Lords Chamber

[Lord Taylor of Holbeach]

I reiterate to my noble friend that the minimum unit pricing policy remains under consideration. It has not been shelved.

[Baroness Smith of Basildon]

My Lords, I am surprised by that answer. On several occasions I have asked the noble Lord from this Dispatch Box about this so that I might understand why the Government have moved from absolute certainty that they would introduce minimum alcohol pricing to equivocation and a consultation, and now seem to be moving to total rejection. Following David Cameron’s evasive answers at the weekend, the lobbyist and Prime Minister’s adviser, Lynton Crosby, has stated that he has never spoken to the Prime Minister about plain packaging for cigarettes. Can the Minister give us the same assurance about minimum alcohol pricing? Do the Government consider that Mr Crosby should now declare all his lobbying clients?

[Lord Taylor of Holbeach]

The noble Baroness has been in government and I am sure that she knows the procedures and the way in which Ministers behave in relation to advisers. I give that assurance in the knowledge that my right honourable friend the Prime Minister will vouch for that himself.

Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 17th July 2013 Grand Committee

[Baroness Smith of Basildon]

I am sorry to interrupt the noble Lord and am grateful to him for giving way. However, he said that I asked about the cost of the commissioner. I did not do so as I referred to that matter in my comments. What I was asking about were the powers of the commissioner and how they could be enforced, not the cost.

[Lord Taylor of Holbeach]

The powers are clearly laid out in the instrument which places those bodies identified under a statutory obligation to comply with the code. That is what the statutory instrument is about. Those are the powers of the commissioner and his power is, of course, to see that the code is enforced by those public authorities so affected.

As I say, the Home Office will take an early and visible lead in the voluntary adoption of the code and, along with the Surveillance Camera Commissioner, will show how working with the 12 guiding principles can help build and maintain public confidence. Along with the Surveillance Camera Commissioner, we will be raising awareness of the code and its guiding principles. There will be practical advice on how to apply those principles so that where CCTV is needed it is effective in meeting its purpose. Maintaining public confidence is in itself an incentive for voluntary adoption. Not to adopt the code will be to risk reputational damage by appearing to be unwilling to engage with the public or to follow good practice.

The number of cameras is not really the issue. The BSIA’s recent report was clear that the issue is whether the cameras have the ability to meet their purpose and adhere to legal requirements.

The additional costs—the noble Baroness may care to take notice of this—incurred by a local authority are estimated to be on average £2,000 a year, and on average £23,000 for a police force. These are modest costs and are expected to bring the benefits of better quality images and help in investigating crime and bringing criminals to justice and greater public confidence. Placing a monetary value on these benefits cannot be done easily, as I think that the noble Baroness accepted, and yet they are important.

The Surveillance Camera Commissioner plans to generate a self-assessment test, which will be a speedy and efficient mechanism for an organisation—or a business in the case of voluntary adoption of the code—to assess whether it is complying with the code. This will be faster than digesting the code in its entirety and will help to demystify the principles in the code and any technical terminology used. There is no mandatory requirement to replace an existing system but organisations will be encouraged to work to approved operational and occupational standards. This can be done by better use of the existing resources. So I have focused once again on the effectiveness of the systems in delivering what is needed.

CCTV and ANPR are used in a variety of settings for a variety of purposes. Therefore, if some of the definitions are vague and general rather than specific, that is because the code does not contain a detailed, prescriptive and one-size-fits-all guidance which defines every circumstance. Some may regard it as vague but it is a matter for operators to assess necessity and proportionality when using CCTV and ANPR, and to then test their judgment with the public and their partners. This code and the Surveillance Camera Commissioner will provide a framework within which they can exercise their discretion to do so.

The commissioner will provide advice on approved operational, technical and competency standards. He is already meeting with relevant certified accreditation bodies to explore a formal certification scheme for CCTV. In addition, he is developing a self-assessment template, as I have said, to help system operators to assess compliance and to follow the code.

The noble Baroness asked about SOCA. Currently, of course, when Ministers say SOCA they mean the National Crime Agency, which will be its successor. I can demonstrate to her how public authorities have viewed the establishment of the CCTV and surveillance commissioner and his role by the response of authorities such as SOCA and, for that matter, the non-territorial police forces which have been pleased to sign up to this code. They can see the huge advantages of being part of a group of law enforcement agencies that receive the support and technical assistance of the commissioner and the reassurance that the commissioner’s appointment offers.

The noble Baroness also asked about the mechanism for enforcing compliance with the code. Perhaps I may explain. Local authorities and the police will be under a duty to have regard to the code when exercising their functions. The SI will place a statutory duty on them. When a local authority or police force fails to do so, it will be vulnerable to judicial review for a breach of that statutory duty. The possibility of being subject to such a legal challenge will incentivise local authorities and the police to adhere to that statutory duty.

Before I go on, I shall talk about DNA and the noble Baroness’s comments in that area. This is complex legislation, as she will appreciate, and considerable work has been carried out to date to prepare the relevant systems and to consult law enforcement authorities. Having made the policy decision, we undertook a full public consultation and carefully considered the responses before we brought this guidance forward. I am satisfied that it is in time and is specifically designed to address the concerns that the noble Baroness raised.

The noble Baroness particularly asked about the current legislative framework against which decisions have been made. The current legislative regime whereby material is held by the police and other law enforcement authorities is still in effect. There have been no applications to extend the retention period on national security grounds and no material has been destroyed as a result of not extending the time period on those grounds. There have been no applications, but the framework has not ceased to exist.

I am sure that the noble Earl, Lord Erroll, will be pleased to hear that under guiding principles one and two we are clear that the use of CCTV or ANPR must be in pursuit of a legitimate aim and meet a pressing need and must take account of privacy, which, as I have tried to emphasise, is the countervailing balance that this code is designed to reconcile. These first principles establish the need for surveillance and reassure the public that it is necessary.

The Government’s intention is to give communities confidence that camera systems are used to meet a legitimate aim, that they are necessary and proportionate —words which noble Lords will fully understand—and that they are used effectively to meet a stated purpose. The vast majority of systems are operated privately. However, local authorities and the police are key organisations in ensuring the safety and security of our public places—which is where the code is initially focused—and therefore have a significant interest in the use of CCTV. That is why the starting point of our journey of incremental and measured regulation is to place them under a duty to have regard to the code. CCTV is used in a wide variety of settings for a wide variety of purposes. Therefore, the code does not contain detailed, prescriptive, one-size-fits-all guidance which attempts to define every circumstance. Some may regard this as vague, but it is for operators to assess necessity and proportionality when using CCTV and then to test their judgment with the public and partners. This code will help them do so.

In this complex and challenging arena we have always been clear that our approach to regulation will be incremental and measured. Andrew Rennison characterised this as taking small but practical steps, and I am sure that that is a strategy that the noble Baroness will endorse. We are taking action to reassure the public and as a driver of public standards. We in government remain committed to ensuring that, where the powers which these orders seek are granted, they are necessary, proportionate and transparent and, crucially, that their use goes hand in hand with respect for our long-held individual rights and freedoms. Both the orders before the Committee today go to the very heart of that matter, and I commend them to the Committee.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister, who has sought to address the points that I have made. However, I am not convinced that he has addressed them all. I am still unclear on the point, which he did not answer, on the enforcement or monitoring powers of the Surveillance Camera Commissioner. He said that it was a statutory duty on local authorities or the police, so the fear of judicial review would ensure that they carry this out. My experience of local authorities is that the fears of the cost of judicial review often lead them not to take an action that they would otherwise take. My fear would be that the costs of a judicial review—and there are 12 principles under which they could be judicially reviewed—could lead a number of local authorities to say that they will just not bother with this because it is too much effort.

I am disappointed that the Minister described what I think are genuine concerns as hyperbole. The place to question such issues is your Lordships' House; that is our role, as well as scrutiny. I am sorry that the Minister was unhappy with that position.

On the final order, the Minister said that there have been no applications to destroy biometric information, and none had been destroyed. Can I take it that that means that there have been none over three years old? Those are a couple of points that were not raised. I shall take this back and read the Hansard to see from what has been said whether my points have been addressed.

Alcohol: Minimum Pricing

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 10th July 2013 Lords Chamber

[Lord Taylor of Holbeach]

I think noble Lords are well aware how long “due course” may be.

[Baroness Smith of Basildon]

My Lords, for all the talk of consultation, the consultation on the alcohol strategy specifically ruled out consulting on minimum alcohol pricing. It said that the Government were committed to introducing a minimum unit price, but added:

“However, in other areas, this consultation seeks views”.

The Home Secretary said:

“We will … introduce a minimum unit price for alcohol”.

What has changed the Government’s mind? Has private lobbying forced this U-turn?

[Lord Taylor of Holbeach]

I can certainly counter that allegation. The response will be a comprehensive review of alcohol and the way in which we tackle alcohol abuse in this country, and it will be available in due course.

Visas: Foreign Domestic Workers

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 4th July 2013 Lords Chamber

[Lord Taylor of Holbeach]

I understand the noble Baroness’s concerns, and indeed this is one of the issues that the Minister for Immigration is considering. However, perhaps I may put into perspective what the April 2012 reforms require. The control of the scheme is itself one of the protections in place. Previously there was a five-year period, and a six-month period obviously enables us to discipline that particular application so much better. We require evidence of an existing employer-employee relationship and 12 months of overseas employment before the visa application can be made. We also require that written terms of condition of employment accompany that visa application and are produced with it. Employees are still entitled to the protections in UK employment law, and they are provided with a letter in a number of languages setting out their rights under the law.

[Baroness Smith of Basildon]

My Lords, nobody wants to see the visa system abused. However, I am confident that the Government do not think it is right that anybody working in this country should be made more vulnerable to slavery or physical, sexual or mental abuse, with effectively no power to take action to protect themselves, as we heard from the noble Lord, Lord Hylton. Will the noble Lord consider, in the meeting that he will shortly have with Mark Harper MP, what action the Government will take to ensure that those who are responsible for such crimes will be brought to justice, and not allowed to get away with it by deporting the evidence?

[Lord Taylor of Holbeach]

Indeed, anybody who violates the trafficking laws in this country is subject to the full force of the criminal law. Given that individuals have already worked for their employer for 12 months overseas, it is reasonable to assume that there is a normal employer-employee relationship between those individuals.

Europol Regulation: European Union Opt-In

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 1st July 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I apologise to the noble Lord because he has been generous in giving way. He has said that time will be made for the other place to debate this issue once the government decision has been made. The decision has to be taken by 30 July, which is the last sitting day in your Lordships’ House before the Summer Recess. However, the other place will finish around two weeks earlier. Can I have an assurance that, if the decision is taken between the other place rising and 30 July when this House rises, the noble Lord will make an Oral Statement so that we can debate the issue on the basis of the decision that is made, not the theory of the decision?

[Lord Taylor of Holbeach]

I imagine that I will be able to tell noble Lords that it is highly probable that a decision will be made before the other place rises, rather than before 30 July. The business of this House is a matter for the usual channels and I place myself in their hands. However, I would want to communicate any decision of this importance to the House and, indeed, to Parliament. I am sure that that will be acknowledged by my noble friends who occupy the usual channels.

My noble friend Lord Sharkey is correct to say that there are numerous examples of good co-operation. He illustrated the virtues of Europol and why, notwithstanding the discussions on whether to opt in or to let it run and then negotiate, it is such an important institution and we support it. I am aware that we share common ground with other member states on some issues, but there are no guarantees. The issues are subject to qualified majority voting and there have not been any detailed negotiations that have allowed us to gain a clear idea of how much support we have for our concerns. Should we not succeed in amending it, we would be bound by the final text, and that is a matter of concern to the Government.

Perhaps I may respond to the noble Lord, Lord Foulkes. I should like to highlight that there are two separate issues here: the block opt-out and the Europol negotiations. The two issues are not being confused and this debate is about the Europol regulation, not the opt-out.

Visas

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 17th June 2013 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what is the average time taken to assess and process an overseas visitor’s application for a visa.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, in the financial year 2012-13, on average, visit visa applications were processed in under 10 working days—the exact figure is 9.17 working days. We measure this from the time that the customer submits their biometric information to when the application is ready for collection by the customer.

[Baroness Smith of Basildon]

My Lords, the president of the China International Travel Service has criticised the Government’s changes to the visa system as making little difference in encouraging Chinese tourists to the UK and complains that the system is even more complicated than that to get into the US. Does the Minister accept that the potential loss of income to the UK economy remains at £1.2 billion? What urgent discussions will Ministers have with the Chinese authorities and tour operators to make it easier to apply for UK visas without compromising security, as other countries seem to be much more successful at doing this?

[Lord Taylor of Holbeach]

My Lords, I read the article containing Miss Yu’s comments. It is vital that the UK is seen as being open for visitors and business. That is very much the case as far as China is concerned. The President of China has talked about there being 400 million visitors from China by 2018. We need to recognise the need for a customer focus in our visitor offer. That is why the Government have broken up the UK Border Agency into two parts, one of which deals with immigration enforcement. The other, UK Visas and Immigration, is dedicated to delivering a high-quality customer service to those wishing to enter the UK.

Crime: Child Abuse

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 4th June 2013 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what information they have on the number of individuals who have downloaded child abuse images, and on the number of those individuals who have been charged.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the Government take the issue of tackling illegal content very seriously. In 2012, 255 individuals were found guilty of the principal offence of possessing prohibited images of children or of possessing indecent photographs. In the same year, 1,315 individuals were found guilty of the principal offence of taking, permitting to be taken, making, distributing or publishing indecent photographs of children. It is, unfortunately, clear that there are links between these sick activities and the attacks on young children which have featured in the news recently.

--- Later in debate ---

[Baroness Smith of Basildon]

I am grateful to the noble Lord. The latest estimates show that up to 60,000 people are involved in downloading child pornography. Even though we can obtain their names and addresses, as the noble Lord said, there are fewer than 2,500 convictions each year. The figures show that one in six of those involved in child pornography will commit a sexual offence on a child. We would like to work with the Government to ensure swift and co-ordinated action on this issue. What progress has been made in the technology industry to make a step change in how we tackle this? Do the Government accept that they must be prepared to act if no changes are forthcoming?

[Lord Taylor of Holbeach]

These are important issues, and I am very grateful to the noble Baroness for the way in which she supports moves to strengthen the Government’s position in this regard. The work of the Internet Watch Foundation to encourage search engines and internet service providers to put in place warning messages known as splash pages that tell users that they are about to access a website containing illegal child abuse images is a very important development. However, our preference is for such websites to be taken down or, where that is not possible, blocked from being accessed. Work with the internet service providers is key to getting this problem solved.

Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 4th June 2013 Grand Committee

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for that explanation, which answered a few of my questions, which I know he is always pleased to do. I wish to clarify a couple of points by asking a few questions. The Minister mentioned a seven-year transition period, yet the order refers to a five-year transition period and 2018. I assume he referred to seven years because there is a possibility of extending the transition period for a further two years at another date, but this order is for only five years. In case I have misunderstood, will the Minister clarify that?

I am interested in the enforcement regime regarding those who come from another country and try to work. Is it the same as the regime for other employment visa requirements or will there be something different in place for transitional arrangements? Can the Minister say anything about how this will be monitored? I would be interested to know the details, and if he wants to write to me I would be happy for him to do so.

Obviously, we support transitional arrangements. As the Minister acknowledged in his comments, we brought them in for Bulgaria and Romania. I fully understand why it is not possible to get an accurate assessment of the numbers involved, but the Minister said that this order is being brought forward today because of the fear of uncontrolled flows of workers from Croatia to the UK. He also said that there is no anticipation of large numbers coming to the UK. That seems somewhat contradictory. Has there been any assessment of the numbers involved, or was the assessment that it was not a large number and the order is just to minimise the risk in case that is wrong? It is not quite clear as the Minister’s comments were contradictory. If there has been some assessment, I am interested in the flows in the other direction. How many people from the UK want to go to work in Croatia?

On the more general points, from what has been said today and from comments made by other Ministers in the past, is the Minister able to clarify the Government’s longer-term position on free movement within the EU and say whether there are any plans to change the rules on it? I noted the Minister’s comments about unskilled workers from Croatia or, indeed, any other country when local workers are available. On that point, which is slightly tangential but very relevant to this discussion, how can we ensure that unscrupulous employers do not illegally employ those who are not entitled to work in this country and exploit them by doing so? I am thinking of things such as ensuring that the minimum wage is paid and that health and safety regulations are taken note of because cutting back on those issues is one way that unscrupulous employers exploit foreign workers and therefore undercut and undermine the local workers to whom the Minister referred. Will the Minister give us an assurance that the Government will not weaken those protections, and that when they are not upheld they will take action?

I know that the Government have been very slow in enforcement. There has been a lax approach to the minimum wage legislation. I was very pleased to hear this weekend that HMRC has recently brought a swathe of prosecutions on this, because it had fallen by the wayside. I am pleased that it is picking up now. An assurance from the Minister on those particular issues would be very welcome. I appreciate that that is slightly tangential but it is an important issue. This is the point he is making; we must ensure that people who are not legally allowed to work in this country do not do so.

We are broadly content with the order before us today, but if the Minister is able to address the questions I have raised it would be helpful.

[Lord Taylor of Holbeach]

My Lords, I thank the noble Baroness for her contributions. As usual, she sets me a high standard if I am to avoid writing in detail, although I certainly would not hesitate to do so if I felt I was not able to answer satisfactorily.

I should like to reiterate that these regulations implement the commitment contained in the Government’s programme for government to apply the toughest possible transitional restrictions to any future member state in the EU. That is why we are presenting them. We do not expect levels of migration from Croatia to be significant, however. I made that clear in introducing these regulations.

It was interesting that the Baroness said that she was concerned that we had not given an actual estimate of these figures. We know there could have been considerable numbers from other countries if we had not set these restrictions in place in the past, so we feel that the policy that we arrived at in the coalition agreement was the right one.

I will first explain the business of the five years. I did so in introducing the speech when I explained that these regulations go up to June 2018 but provide for a further extension of two years; they can go up to 2020. They put in place the mechanism whereby the Government can indeed have a seven-year transitional regime.

The noble Baroness asks, “Why apply transitional regimes?” and, “Is it contradictory?”. I hope the noble Baroness supports that.

[Baroness Smith of Basildon]

I thought I made it clear that I did support transitional regimes. I never asked, “Why transitional arrangements?”. My query is about the Minister’s contradictory comments. I recognise that it is difficult to make an accurate assessment of the numbers involved, but the Minister used the term “uncontrolled flows” when he was talking about the need for this and then said he did not expect large numbers. That was the point I was making. The two comments seemed contradictory. I was trying to square the circle on that. I hope I was clear that we support transitional arrangements—indeed, we brought them in previously for Romania and Bulgaria. So that was not the point I was making. I want to be clear on that.

[Lord Taylor of Holbeach]

I am grateful for that explanation. As a result, I now understand the position of the noble Baroness. Thank you.

She asked me about the details of how these figures would be monitored. Obviously, where transitional permits are actually applied for, we know how many people are coming from Croatia to this country. As to how they will be enforced, the noble Baroness will know that we now have within the Home Office an immigration enforcement unit that ensures that illegal workers—and, indeed, illegal employers—can be prosecuted. These matters can be dealt with much more forcefully than before.

I am pleased that the noble Baroness noted HMRC’s assault on minimum wages. There has been a lot of cross-departmental working on these issues as the Department for Work and Pensions has an interest in them as well as the Home Office and HMRC. The rather amusingly entitled Operation Pheasant was designed to seek out exactly this problem in the part of the world in which I live, and successfully identified weaknesses that we do not want to see. After all, an exploiting employer is also an unfair employer who presents unfair competition to those who respect the law. The enforcement of the law is an important aspect of making sure that business in this country is conducted on a level playing field.

The noble Baroness also asked whether we would seek to reopen the free movement directive and what our approach to that was. We are examining the scope and consequence of the free movement of people across the EU as part of the general balance of competences review. We monitor enforcement issues and publish the outcomes on the Home Office website. All details of instances where employers have been discovered to be illegally employing individuals are published on that website. I hope that that satisfies the noble Baroness and that she will approve the regulations.

Extradition Act 2003 (Amendment to Designations) Order 2013

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 4th June 2013 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, we are concerned here with further secondary legislation required to amend the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003.

The background to this order is that it is necessary given the accession of the Republic of Korea to the European Convention on Extradition and the accession of Croatia to the European Union on 1 July 2013, from which time it will operate the European arrest warrant procedure. In addition, this order amends the time allowed for India to provide the necessary documentation following a person’s provisional arrest to reflect the terms of the bilateral extradition treaty in place between the UK and India. Therefore, three separate countries are the focus of this order.

To take these matters in sequence: first, the Republic of Korea is now a party to the European Convention on Extradition. This requires that extradition requests from the Republic of Korea be dealt with under Part 2 of the Extradition Act 2003, which in turn requires that the Republic of Korea be designated for the purposes of that part. That is what this order does. In addition, in line with the provisions of the ECE, this order ensures that when the Republic of Korea sends an extradition request to the UK, the request need be accompanied only with information—not evidence—which would justify the issue of an arrest warrant in a comparable domestic case.

The second country involved is Croatia, which, as we have already debated, will on 1 July accede to the European Union. We have considered the particular aspects relating to transitional arrangements. From 1 July, EU extraditions to and from Croatia will cease to take place under the ECE and will instead fall under the European arrest warrant procedure, the EAW. It is therefore necessary to redesignate Croatia as a Part 1 territory to ensure that we comply with our obligations under the framework decision on the EAW.

The third amendment relates to our extradition relations with India. The Extradition Act 2003 provides for a procedure known as a provisional arrest, whereby in urgent cases a state can ask for a person to be arrested in advance of sending the full papers making up the extradition request. Section 74 of the Act states that following a person’s provisional arrest, the extradition request must be received by the judge within 45 days, unless a longer period is designated by order. This allows the Secretary of State to provide for a longer period, where necessary, to reflect the terms of a bilateral treaty.

The UK concluded a bilateral extradition treaty with India in 1992, which has been in operation since 1993. Article 12 of the treaty specifies that following a provisional arrest the request should be received within 60 days. The UK considered that extradition with India was governed by the London Scheme for Extradition within the Commonwealth. Accordingly, India was not included in the list of territories in Article 4(2) of SI 2003/3334. However, we subsequently learnt that the Indian authorities regard the bilateral treaty as the vehicle for extradition between our two countries. This order ensures that this is reflected in our legislation by setting out that in the case of India the judge must receive the papers within 65 days of the person’s provisional arrest. This allows for India to provide the request to the Secretary of State within 60 days, as the treaty provides for, and for the Secretary of State to have five days to certify the request and send it to the appropriate judge.

I hope that noble Lords will understand the background to this collection of separate provisions within a single statutory instrument. The various amendments to the order are necessary to ensure that the United Kingdom can comply with its particular obligations under the relevant international extradition arrangements. I hope that, given my explanation, the Grand Committee will consider the order favourably.

[Baroness Smith of Basildon]

My Lords, again I am grateful to the Minister for his explanation, which was helpful. I wish to raise only two points, one of which is a probing question. I listened carefully to what he said on India. I do not think that I am dumb, but I struggled to follow some of the reasons for the provisions. Perhaps it will be easier when I read Hansard.

The justification given in the Explanatory Notes is the one the Minister just gave, which is that the time limit regarding the extradition arrangements with India requires that country,

“to provide these documents to the Secretary of State within 60 days, and then provides a further five days in order to enable the Secretary of State to provide these documents to the appropriate judge”.

My understanding is that the Government are equalising the time allowed for the extradition procedure in the UK with that in India, but I am not clear why it is necessary. The Minister said that the Indian Government understood that to be the position. Are we changing it because there was a misunderstanding in 2003 when it came through? I would have thought that we would want to move to extradition as quickly as possible, and I am not clear whether this is extending or reducing the time made available, because nowhere in the order or the Explanatory Notes could I find what the time was before it was 60 days. Obviously it has been changed to 60 days from something, but I do not know from what. If it is in the Explanatory Notes, I apologise, but I could not find it when I was looking through them. It would be helpful to have that information on why it is coming through now. Has the current timescale, whatever it is, been in place since 2003 or did it exist before that?

I was very pleased to hear the Minister give such a positive explanation for and account of the European arrest warrant, which is something he and I have discussed before. I know the Government are reconsidering this issue, which has caused enormous concern to others in Europe as we extradite through the European arrest warrant and apply for extradition through the European arrest warrant. Can the Minister tell me how many times the UK has used the European arrest warrant for extradition to and from the UK? As the Government are bringing this order forward today, they clearly regard the order and the extension of the European arrest warrant to Croatia as helpful and desirable. Croatia will be subject to the European arrest warrant but, on the other hand, the Government are now considering withdrawing from all the police and justice measures, which include the European arrest warrant.

I welcome the comments the Minister has made today, and I am sure we will come back to those issues. However, it would be helpful if he can give me some background on the numbers—I am happy for him to write to me on that as I would not expect him to have that figure to hand—and also on the position of India and what the number has changed from to 60.

[Lord Taylor of Holbeach]

I am grateful to the noble Baroness for her willingness to support this statutory instrument. If the noble Baroness reads Hansard, she will see that I covered this point but I will repeat it. Section 74 of the 2003 Act, under which we were operating but the Indians were not, states that extradition requests must be received by the judge within 45 days. That is why we have had to change the timings to the original arrangement we had with India under our bilateral treaty.

[Baroness Smith of Basildon]

If the misunderstanding is between 45 and 60 days, why has it been changed to 60 rather than remained at 45? It would seem more advantageous to the Government if extradition proceedings took place as quickly as possible.

[Lord Taylor of Holbeach]

It is because the bilateral treaty overrides the Commonwealth agreement of 2003. That is the sole reason. The Indian Government have asserted that the Commonwealth treaty does not apply to India as we already had a bilateral treaty in place, which was not overridden. We are not disagreeing with them because it is, after all, a matter of mutual consent, and we wish to see it as such.

In answer to the question about numbers, the Home Secretary said that she would write to Parliament when the figures are available. I will chase this matter with the Home Secretary so that the figures are made available as soon as possible. I hope I have answered the questions. I think that if the noble Baroness reads Hansard, she will see the background of the Indian case.

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 4th June 2013 Grand Committee

[Baroness Smith of Basildon]

My Lords, again, I am grateful to the Minister for his explanation. As I understand it, the order before us extends the powers of arrest, search and seizure to immigration officers and customs officials. The Minister will be aware that, in the interests of effective policing, we have called for these measures to be introduced. Clearly, given the kind of investigative work, particularly on issues such as human trafficking and facilitating illegal immigration, it is appropriate, as the order states, that officers should act within a PACE-compliant framework. That will now include customs and immigration officers. We support that.

The Minister would be disappointed if I did not ask him a couple of questions. Paragraph 7.4 of the Explanatory Memorandum refers to mixed investigative teams with the National Crime Agency, which makes sense if they are looking into serious organised crime relating to immigration issues or human trafficking. Does that mean, for example, that all customs or immigration officers acting in a joint team on an NCA investigation would have the same powers as the police officers in that team and that they would retain those powers? If it does not, can the Minister say anything about the differences? I assume that additional training would be required for the officers to ensure that they know the additional powers that they have and how they can properly use them.

On the joint teams, the NCA—as the Minister will know—will not apply fully to Northern Ireland because of a difficult situation which has arisen, which the Government could have done more to resolve early on, if I am honest. I am curious whether these powers and this order will also apply to customs and immigration officers in Northern Ireland, given that the NCA will not operate in that way in Northern Ireland. If the Minister could given me an answer on that, it would be very helpful. I notice our Northern Ireland spokespeople are here today and would be grateful if the point could be clarified. I see puzzled faces behind the Minister and, if it is not clarified today, I am happy for somebody to write to me about it.

It is also my understanding that, while police officers are members of the Police Federation, the new officers who will be subject to and have these powers—those employed by the border agency, for example, or Border Force—are members of a different trade union. Over the years, they will have had different rights at work and different terms and conditions of employment. The order makes no mention of any changes to those at all, so I have assumed that no changes are planned to their terms and conditions of employment or their rights at work and that no changes are expected. I would be grateful if the Minister could confirm that for me.

[Lord Taylor of Holbeach]

I thank the noble Baroness for her comments. The people working together on mixed teams will have those PACE powers only in relation to their particular function within that team. They will all derive their PACE powers from PACE, so there will be a common source, but it is not correct to assume that, for example, a police constable or an immigration officer will be exercising a customs officer’s powers.

As for Northern Ireland, officers of the National Crime Agency are not included in this particular order because the National Crime Agency has not been set up. The noble Baroness will know that the difficulty in Northern Ireland was occasioned not so much by the customs and immigration issues but by the general powers that exist. The noble Baroness will understand that there is only a partial transfer of responsibility and that National Crime Agency functions will still be exercised in Northern Ireland through powers secured through SOCA. I cannot give her an absolute answer on the extension of this particular attribute in Northern Ireland, but if I can write to the noble Baroness, that will enable me to put this particular change, which is largely designed for England and Wales, into context rather than complicating the matter by trying to answer the question on Northern Ireland.

Designated customs officials are already trained to exercise PACE powers and those immigration officers who carry out criminal investigations will receive equivalent training, relevant to the set of PACE powers to which they have access. The noble Baroness will be aware that the changes that have occurred within UKBA have been made without affecting any terms and conditions of employment of any of the individuals involved.

[Lord Taylor of Holbeach]

I am pleased to see the noble Lord, Lord Empey, in his place. I would be very happy to make sure that he is involved, as I recognise his interest in the particular relationship of Northern Ireland to these changes within the statutory instrument.

[Baroness Smith of Basildon]

I would be grateful if the Minister clarified one further point and perhaps agreed to write to me. He said something that I tried to jot down quickly—I am not sure that I got it right—about police officers having the powers of immigration officers and customs officers. I thought that it was the other way round regarding immigration officers and customs officers. Would they have those powers only when they are involved in a joint investigation with the NCA or will they have those powers independently when investigating such cases?

[Lord Taylor of Holbeach]

I am sorry if I have confused the noble Baroness. I had it clear in my mind if it was not clear in my exposition. Each of these specialist elements—police, customs and immigration—are enforcement agencies operating in their particular way. Immigration officers hold their powers totally independently of these other powers. Each agency derives its powers from PACE in an independent fashion. However, it clearly makes it a lot easier, when they are working together, to have powers deriving from the same source, which they do not have at present. The noble Baroness was gracious enough to admit that the 2009 Act needed to put that right at some point in the future. This is the moment at which we have been able to do so.

Sexual Offences: Investigation and Prosecution

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 21st May 2013 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, my right honourable friend the Minister for Policing and Criminal Justice, Damian Green, has set up a group designed to ensure that this is the case and that the police forces themselves are aware of the difficulties and the need to lend a positive ear to complaints from young children. My noble friend makes a very good point—that the point of failure in the system is that these allegations have not been listened to or taken seriously by the authorities in the past.

[Baroness Smith of Basildon]

My Lords, the scale and type of sexual abuse has shocked the nation. Perhaps I may refer back to the Question from my noble and learned friend Lord Morris. Can the Minister confirm the number of serious, larger-scale sex abuse cases involving groups and gangs that have been investigated? My noble and learned friend suggested that there are about 54 such cases. The number is clearly over 30, which could mean that hundreds if not thousands of young people are suffering abuse at this moment. I listened carefully to the Minister’s answer and he was absolutely right about co-ordination. However, is he really confident that the Government have now got to grips with the matter and that the co-ordinated strategy which he spoke of deals with all aspects of these wicked crimes, including the reporting of them and the court proceedings?

[Lord Taylor of Holbeach]

My Lords, I have in fact got a figure and it is a dramatic one: 2,409 children and young people were confirmed victims of sexual exploitation by either gangs or groups during the 14-month period from August 2010 to October 2011. Those figures speak for themselves and to the scale of what is being dealt with. I assure noble Lords that this Government are focusing their attention on the issue as much as any Government have done.

Queen’s Speech

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 9th May 2013 Lords Chamber

[Lord Taylor of Holbeach]

I can confirm that that will be the case. I for my part will be supporting the Bill, but that is my own position. I have listened to my noble friend Lady Stowell speak on the issue. I am sure that she will convince a vast majority of noble Lords of the rightness of this Bill, which is about giving those who want to get married the opportunity to do so while protecting the rights of those who do not agree with same-sex marriage. No one stands to lose, but we all stand to gain by building on a tradition of tolerance and inclusiveness. I must sum up, because I am going on a bit longer than I should.

[Baroness Smith of Basildon]

I do not want to detain the noble Lord, but he is always generous and courteous in seeking to answer questions raised in the course of the debate. I raised a specific point about individual voter registration and the reserved power that the Government have over the Electoral Commission. I appreciate that he will not have time tonight, but if he could write to me on that specific point, I would be very grateful.

[Lord Taylor of Holbeach]

Yes, certainly I will. I have no information about any decision to be made on that.

Tourism: Visa Restrictions

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 25th April 2013 Lords Chamber

[Lord Taylor of Holbeach]

My noble friend has a distinguished record as a promoter of British interests around the world, and I take very careful note of what she says. However, I reiterate that where we are dealing with countries where we require biometric co-ordinates, it has to be done properly, which sometimes necessitates it being an out of country application. I apologise that I cannot give particular details in response to my noble friend’s question, but I hope that assists her.

[Baroness Smith of Basildon]

My Lords, is the Minister aware of recent reports from the Independent Chief Inspector of Borders and Immigration, who has highlighted some very serious issues that cause delays in decisions on visa applications? Previously, the chief inspector has complained about his recommendations being accepted but not acted upon. This, as I know the noble Lord understands, causes huge problems for our economy and for our reputation abroad. Can the Minister give the House an update on the action that is now being taken to give effect to the inspector’s recommendations to address this problem?

[Lord Taylor of Holbeach]

I think the noble Baroness is well aware that the Home Office has taken a decision about the UKBA, which will mean that the processing of visas is separate from enforcement from now on. This will make a considerable difference. I know John Vine and have a great deal of respect for him. His reports are always very high value and I believe that the UKBA is learning an enormous amount from the advice that he is giving them. The Home Office takes his report seriously.

Human Trafficking

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 25th April 2013 Lords Chamber

[Lord Taylor of Holbeach]

I thank the noble Baroness for that question. If noble Lords have the time today, they should go to the Upper Waiting Hall on the Grand Stairway to the Committee Room Corridor and visit the exhibition there, because it demonstrates how vulnerable those people are. Local authorities have a big responsibility in this regard. We have recently commissioned a review by the Children’s Society and the Refugee Council which will consider the experience of trafficked children in local authority care and try to establish good practice for local authorities. The review will report later this year.

[Baroness Smith of Basildon]

My Lords, the Minister will be aware of this week’s Lords EU Committee report, which stated that to opt out of EU policing and justice measures would,

“weaken the ability of the United Kingdom’s police and law enforcement authorities to cooperate with … other Member States regarding cross-border crime”.

Last year, 420 requests were made to the UK for immigration and human trafficking offences under the European arrest warrant. I am genuinely puzzled. I hope that the Minister can help me, because I know that he cares about the issue. How do the Government believe that opting out would fulfil the Prime Minister’s pledge to make Britain a world leader in the fight against human trafficking?

[Lord Taylor of Holbeach]

I do not see any conflict between our policy objective of re-evaluating our relationship on a number of European matters with our strategy for human trafficking which, by definition, involves co-operation with other countries, responding to other countries’ requests and making sure that other countries work with us to tackle this problem at source. We have representatives in vulnerable countries making sure that we are well aware of the scale of these operations overseas and are doing our best to stop at source the crime of young people being picked up to be brought to this country, as we know too well they are.

Police: Convicted Officers

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 24th April 2013 Lords Chamber

[Lord Taylor of Holbeach]

My noble friend is right about the vetting procedures. The Government are committed to improving the integrity of the police. As noble Lords will know, on 12 February, the Home Secretary announced a package of measures to improve police integrity, and yesterday, my right honourable friend the Home Secretary and the police Minister Damian Green discussed police integrity with police and crime commissioners, who, as my noble friend will know, are responsible for making sure that these standards are maintained within their force areas.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for his answer to the noble Baroness, Lady Doocey, but he sounds a bit complacent about it. He is absolutely right that the integrity of the police is important not just to the public but to other serving police officers, who are dismayed that so many of their colleagues have convictions for serious offences. He says that he has had discussions; can he tell me what action will follow from them?

[Lord Taylor of Holbeach]

I have already talked about the 12 February announcement made by my right honourable friend the Home Secretary. The noble Baroness will know that part of our policy for improving standards within the police lies with the establishment of a College of Policing, which is leading a programme of ways to improve police integrity. It is important that the police generate these standards from within their own experience. It is not necessary for the Home Office to impose a standard on the police service. We are great believers that the integrity of the police force and the capacity for maintaining it lie within the police service itself. The figures that I have given have shown exactly that.

Justice and Security Bill [HL]

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 26th March 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I thank the Minister for his very detailed explanation of the amendments before us. In fact, he was able to talk about not just the amendments but some of the discussions that we had in Committee and on Report and about some of the background. I thought that at one point he might be challenging the noble Lord, Lord McNally, regarding his marathon speech during ping-pong of the Crime and Courts Bill, but fortunately he was not able to reach those dizzy heights.

I shall be fairly brief as I think that the Minister has covered many of the points and I suspect that your Lordships are more interested in some of the issues that we will be debating where there is not so much agreement as there is on these amendments. We welcome many of the amendments in this group. I am grateful to the Minister because the Government have obviously listened to many of the arguments made in Committee and on Report in your Lordships’ House and have brought forward amendments to recognise that.

As he will understand, I particularly welcome Amendments 32 to 37, which are identical to those that the Opposition introduced to place a power of veto on disclosure of information to the committee at the level of Secretary of State rather than Minister of State. I well remember the lengthy debates that we had in your Lordships’ House and I am glad that we were able to convince the Government that that was the right course of action. We are grateful.

I will raise one other issue in relation to the other amendments on which I should like the Minister to give me an assurance. In Committee and on Report, our position was that it was desirable for the committee to have full parliamentary privilege. At that time, we supported the view taken by my noble friend Lord Campbell-Savours that the only way to achieve that would be by establishing the ISC as a full Select Committee of Parliament, obviously with the additional safeguards necessary for a committee of that kind. That did not find favour with your Lordships’ House or with the Government. The view taken was that that was not the way to proceed as it was thought to be too difficult. Therefore, we welcome the steps that the Government have taken since that debate to provide greater protections in statute for the ISC along the lines of parliamentary privilege.

The Minister was very helpful in explaining Amendment 39, which grants witnesses, in relation to any evidence they give to the committee, statutory immunity from civil disciplinary proceedings and from criminal proceedings under certain circumstances where the disclosure has been made in good faith. That is hugely significant and we are grateful for that move forward. I am sure that the noble Lord remembers, as I do, the lengthy discussions that we had on this issue when the Bill was last before the House. However, is he able to provide greater clarity on the extent to which protection exists for other individuals involved in the proceedings of the ISC? If he does not have the answers today, I shall be happy for him to write to me. My understanding is that Members of Parliament are currently not protected by parliamentary privilege in relation to their work on the committee, and nor are the staff working on it in relation to the evidence held by the committee. Clearly, that is very important, as most of the evidence that the committee receives is likely to be covered by the Official Secrets Act as well as the Civil Service Code.

Can the Minister provide clarity on three further points? First, do the protections provided by Amendment 39 apply to witnesses who provide written evidence—for example, whistleblowers who provide evidence anonymously or in writing? Secondly, what protections are provided for the staff of the committee and the Members of Parliament serving on the committee? For example, if the ISC were passed anonymous information covered by the Official Secrets Act, would the ISC then be able to act on that information to investigate it or would the handling of the information cause its members and staff to be in breach of the Act? Finally, does the fact that these are statutory protections and not privilege mean that it would be possible for the Government or an employer to obtain an injunction preventing a witness appearing before the committee?

I do not raise those issues in any way as criticism. I repeat that we welcome the steps that the Government have taken towards the committee having greater parity with the powers and privileges of a full Select Committee. It would be helpful if the noble Lord could answer those points, although we broadly support the amendments and are grateful to him and to the Government for taking on board comments made by your Lordships and the Official Opposition in Committee and on Report.

[Lord Taylor of Holbeach]

My Lords, I thank the noble Lord, Lord Butler, and the noble Baroness, Lady Smith of Basildon, for their broad welcome for the amendments. This House has played a sizeable role in the process leading to the amendments. I do apologise. I was not deliberately seeking to delay the proceedings of the House but I felt it was important that I reported back as I see this as a significant change and one in which this House has played a key role.

The noble Lord, Lord Butler, asked about operational circumstances. I can provide the reassurance that there is no intention to restrict the ISC’s receipt of information on operational matters. The amendment makes it clear that information can be provided at the ISC’s request as well as by agencies or departments on their own initiative. I hope that reassures the noble Lord. He also referred to resources and asked for comfort. I am not sure that any Minister can give comfort on resources at the present time but perhaps I can say that the Government acknowledge that the ISC will require an increase in resources to reflect its expanded oversight role. However, as he rightly pointed out, negotiations are current. I would not want to comment further on those but I hope the noble Lord finds that that is of some comfort. It is certainly a recognition by the Government of the new role for the ISC.

The noble Lord also asked about restrictions on the ISC publishing material. It is not the intention to restrict the ISC from publishing non-sensitive and non-classified information in press releases or open letters. As I said, any information that could be in an ISC report can be published by it on an informal basis as well. I hope that gives a clear indication that things are not being made more restrictive.

I have a note here that might address the issues raised by the noble Baroness, Lady Smith—if I can read the detail. On the due protection supplied to witnesses providing written evidence, the answer is yes. On questions two and three about the handling of leaked information or an injunction preventing a witness appearing, it says here that I will write on those matters. I have to say that I hope I can write slightly more clearly than this note, which is meant to provide me with information. It does say that I will write. Given the nature of the questions, I think the noble Baroness will understand that it is important that I do not mislead the House by trying to ad hoc or wing it. I will happily write to her and place a copy of the letter in the Library. I beg to move.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 25th March 2013 Lords Chamber

[Lord Taylor of Holbeach]

I am certain it is the nature of these things that following the review, Parliament would have an opportunity to debate the issue before the super-affirmative proposal is laid. I made the point earlier that any party affected by this secondary legislation has the right to be consulted. Parliament itself is likely to express a view when that decision of a review is made, before a super-affirmative procedure is even tabled. I cannot imagine an issue of this importance passing noble Lords’ attention and not being brought to the attention of the Minister in this House to account for what was being proposed. I cannot see that being a realistic scenario. I would expect to have to answer to this House for a decision of that nature. Indeed, the super-affirmative procedure provides for an opportunity for full consideration of the detail, as the noble Lord has said, of what is going to be required in the transfer of these powers.

My noble friend Lady Hamwee asked about tasking powers in the NCA because they apply to police forces in England and Wales and they would apply to the functions of the NCA. For the moment, that is limited to serious and organised crime, but in future it could include counterterrorism if such functions were confirmed through secondary legislation, or the super-affirmative procedure, in the future.

This has been a useful debate. I do not waver from my conviction that the House has a role to play in debating the issues, but I think that the provisions of the Bill, as amended by the Commons, provide the right mechanism for doing so.

[Baroness Smith of Basildon]

My Lords, I have listened with great care to the Minister, and I think he has done his best to reassure the House on the level of scrutiny that he proposes. However, I think he falls into the same mistake that his colleague Jeremy Browne made in the other place as seeing this as a procedural issue. He will have heard from noble Lords tonight with enormous experience—far more experience than either he or I have in these matters—that it is not regarded as a procedural issue but a very serious issue.

I said in my opening remarks, and the noble Lord, Lord Reid, made the same point, that the greatest responsibility that a Government and, I think, a Parliament have to their citizens is to ensure their safety and security. The noble Lord, Lord McNally, indicated his assent on that as well. As the noble Lord, Lord Reid, said, adding scrutiny to what he regards as a questionable transfer—although others would see it differently—but to something that raises concern, can only help rather than hinder any Government. Our Cross-Bench Peers with enormous experience in this, such as the noble Lords, Lord Condon and Lord Blair, with their vast experience of policing, raised real concerns about how such a transfer could be effective.

The Minister talks about a review and places great store by that review and the ability of noble Lords to contribute to it, but a review is not primary legislation. He says that a Government would seek to hitch to another Bill such a proposal to transfer counterterrorism from the Met to the new National Crime Agency. I would not expect Her Majesty’s Government to hitch something to another Bill, and I do not know what the Minister is gesticulating about, because this is a serious issue. It is hard to conceive, as other noble Lords have said, of a time when this would be in emergency legislation; it would be the wrong time, but noble Lords across your Lordships’ House would do their best to ensure proper and effective scrutiny in the interests of good legislation, for no other reason than to make sure that we get something so serious absolutely right.

The Minister will have heard that there are doubts as to whether such a transfer would be appropriate. It is because some doubts have been raised that there should be a proper process and procedure for parliamentary scrutiny to ensure that, if such a step is taken, at some point in future, after review and after the Government are satisfied that the NCA is operating correctly, those doubts should be raised in primary legislation. It is absolutely crucial; if the Home Secretary wants to take this step, she needs to ensure that she has the confidence not just of Parliament but of all those involved in counterterrorism. That is what proper and effective scrutiny through primary legislation would seek to achieve.

The Minister has tried, but he has failed to convince me that a super-affirmative order that is unamendable, even if the Home Secretary wants it to be amended, and which does not have the degree of scrutiny of primary legislation, is an appropriate way in which to move forward on something so serious and important to the nation. I therefore ask to test the opinion of the House.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, when the Crime and Courts Bill first came to your Lordships’ House, I questioned the Minister as to whether it was—I think I used the term—“oven ready”, as there seemed to be so much left to do in the Bill. Given that what was then a 41-clause Bill now has 18 new clauses, it was right to ask that question. The extradition issues, as we have heard from noble and learned Lord, Lord Lloyd, have been tagged on to the Bill. Indeed, the framework document which outlines everything the National Crime Agency should do and how it should do it is still not available, despite promises made at almost every stage of the Bill in your Lordships’ House and the other place.

One thing that emphasises that point is that no agreement was reached with the Northern Ireland political parties or the Assembly around what kind of architecture would work for Northern Ireland to ensure that, as we started the process, there would be a legislative consent Motion. To scrap SOCA, which has worked effectively with the PSNI in Northern Ireland, before the National Crime Agency is properly in place across the whole of the UK is an absolutely shocking state of affairs. It does a disservice to Northern Ireland and is hugely unfair to it.

I understand that having discussions and negotiations with all those involved to ensure that agreement can be reached can be difficult and very time-consuming. The Government were right to have discussions and negotiations with David Ford, the Justice Minister, and I would accept and agree that he has worked extremely hard to find a way through this to ensure that the National Crime Agency could fully operate in Northern Ireland. However, I say to the Minister that the responsibility has to be that of government. I realise that in their negotiations with David Ford the Government have worked hard, but what I am puzzled about, and where I have a question mark over the Government’s actions, is that those who have been involved more closely in Northern Ireland know that in order to reach agreement on this issue—I am sure that the noble Lord, Lord Cormack, is very aware of this—you have to start early discussions with all the political parties, the elected representatives and all those who have a role to play. The comments made by Mark Durkan in the other place last week indicate to me that the discussions did not take place early enough.

I asked two Parliamentary Questions, one to the Minister and one to the Northern Ireland Office, about what discussions had taken place ahead of there being no legislative consent Motion before today’s debate. The Answer I had from the Northern Ireland Office was that:

“The Secretary of State for Northern Ireland has spoken regularly to the Northern Ireland Justice Minister about the National Crime Agency. He”—

the Justice Minister—

“has been leading discussions with Northern Ireland Executive colleagues about the National Crime Agency. The Secretary of State has not discussed the matter in detail with other Ministers in the Northern Ireland Executive. The Government remain committed to delivering a UK-wide crime-fighting agency focused on tackling serious, organised and complex crime”.—[Official Report, 28/2/13; col. WA 354]

If the Government are so focused, why were discussions not taking place with other Ministers in the Executive, who have a role in accepting a legislative consent Motion, and the representatives of political parties?

I have to say to the noble Lord that the response from the Home Office was dire. It said:

“Home Office Ministers and officials have meetings with a wide variety of international partners, as well as organisations and individuals in the public and private sectors, as part of the process of policy development and delivery. Details of these meetings are published on the Cabinet Office website on a quarterly basis”.—[Official Report, 27/2/13; cols. WA 333-34]

I was asking specifically whether Ministers had met and spoken to, and how often, the Northern Ireland Justice Minister and other Ministers in the Executive to try to get this moving. The response I get is that Ministers and officials have met “a wide variety of international partners”. Northern Ireland is part of the United Kingdom. Discussions were needed not with international partners but with the political parties and representatives of the Northern Ireland Assembly. That may mean that the Government, or the Home Office, have been talking to the Irish Government, which is a fair way forward, but not to be having those discussions that I think were necessary has led us to the point where, like the noble Lord, Lord Empey, I do not know, and do not share the Minister’s confidence, that this can be resolved in the way that we would like to ensure there is a fully functioning National Crime Agency across the whole of the UK.

I ask the Minister, in the absence of answers to my Written Questions—if he has to write to me I will accept that but if he is able to answer today that would be helpful—when did Ministers first raise the issue of the National Crime Agency, with or without the counterterrorism functions, with the Northern Ireland Ministers and political parties? Who has led the discussion? Has it been the NIO or has it been the Home Office, and who did they meet? However, the crucial question has to be: what happens now? What next? The Motion before us today from the Government that removes application provisions from the Bill is, under the circumstances, perhaps the only way forward at this stage. However, I hope we are going to see a step-up and continuation of the process in the interest of fighting serious and organised crime effectively in Northern Ireland and that there is not going to be a step back by removing Northern Ireland from today’s legislation.

[Lord Taylor of Holbeach]

My Lords, I understand the distress and disappointment, and if I may use the phrase used by the noble Lord, Lord Empey, the pessimism that he feels about these issues is clearly reflected in other contributions that have been made by other noble Lords. On the other hand, I am optimistic because, despite the criticism made by the noble Baroness, Lady Smith, we have sought to address these issues properly. If we had been overassertive in the requirements of the United Kingdom in this regard, we would have alienated a legitimate discussion process that was correctly placed with David Ford, the Justice Minister in the Northern Ireland Executive, and in the key position of securing these agreements. We were keen not to put him in the situation where we were seeking to second-guess where he was taking these discussions.

I will answer the noble Baroness, Lady Smith, in writing because she asked particularly about dates and so on. I do not have that information. Ministers and officials have had a number of meetings with David Ford throughout this process. The noble Baroness will know that I have talked to her about this on occasions outside this Chamber when she has asked me how things were going on this. I remember saying that it is a difficult and delicate matter. All noble Lords with experience of Northern Ireland will understand exactly why that is so. The Government were right that while we were prepared to compromise on a number of challenging areas, the negotiations had not been held on the basis of securing consent at all costs. I think noble Lords will be pleased that that is the case. That must be the right position for the Government of the United Kingdom to take on this issue.

For noble Lords who think that the Government should have intervened directly, I should say that this is devolution, a devolved process. It is absolutely right that the Justice Minister in Northern Ireland, David Ford, led these discussions. He has admirably served the interests of Northern Ireland in this regard with remarkable resilience, driving the discussions and negotiations at each turn, even in the face of some clear opposition. I have confidence in him, which is why I am ultimately optimistic that the people of Northern Ireland, through their elected representatives, will see the importance of having a combined national involvement with the National Crime Agency because of the capacity that it will bring to policing in Northern Ireland.

We are not in the business of creating gaps. The NCA was intended to close gaps in the current arrangements. That was in the Bill that we planned to create, but the Executive could not agree, which is why these amendments are before the House. We remain open to discussion and we have provided the necessary order-making powers to fully extend the NCA provisions to Northern Ireland should the position of the Executive change. Assuming the Executive stick to their decision, it is up to them to decide how to develop alternative capabilities for Northern Ireland to replace the work currently done by SOCA. As I have said, we are committed to providing as much operational capacity and capability as possible for the NCA operating in Northern Ireland. But, as I made clear, in the absence of legislative consent there are some things that the NCA will no longer be able to do, such as using Northern Ireland police powers to investigate serious and organised crime. This is to be regretted.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I will make a few comments, in particular in relation to the civil recovery process. The Government are right, following the Perry judgment, which left a huge hole in our powers to recover criminal assets, to bring forward the matter and put it on a legislative footing. However, we come back to the very strange position in Northern Ireland, which was confirmed by the Minister here and by Jeremy Browne, the Minister in the other place.

The primary purpose of the schedule is to ensure that it is not possible to make a civil recovery order against property located outside the UK if the unlawful conduct occurred in Northern Ireland but the property is located outside Northern Ireland. This is a strange position. If somebody lives in Birmingham, Manchester or London and they stash their ill gotten gains in another part of the world such as Dublin or Spain, there is a legislative remedy to seek an order to have the funds returned. However, if somebody lives in Belfast, Armagh or another part of Northern Ireland and they have their ill gotten gains just a few miles away across the border, they are completely outside the remit of the legislation of this country. Criminals in Northern Ireland will be able to invest their criminal gains across the border in the Republic of Ireland, just a quick drive down the motorway, with complete impunity as the courts will have no way of seizing those assets. I find that a shocking state of affairs to face.

I took some time yesterday and on Google maps followed the border along. I always think of the town of Belleek where, if you walk down the high street, your mobile phone signal beeps from one side to the other because the border is so close that it is switching from the Irish server to the UK one. If you follow the border along, it is very difficult. A criminal could buy land in that area. We do not assume that everyone in Northern Ireland is going to do this, but criminals will know that if they live in Northern Ireland but store the proceeds of their crime just a few miles across the border, they are going to be outside the remit of legislation and nothing can be done. I have to agree with Ian Paisley MP, who said in the other place that,

“the situation gives gangsters and criminals in Northern Ireland who are involved in serious and organised crime a free rein in part of the United Kingdom, and that must be addressed”.—[Official Report, Commons,13/03/2013; col. 373.]

Another worry that the Government must have is criminals moving to Northern Ireland because it will make it easier for them in that situation. It really is a shocking state of affairs.

I heard what the Minister said earlier and I understand his view that it is right to leave all the negotiations to David Ford. However, the point was made by the MP and others that this impacts on the United Kingdom as a whole and on places other than Northern Ireland. I feel that David Ford, for all the efforts he has made, deserves a bit more support from British Ministers in talking to the political parties, Members of the Assembly and Ministers in the Northern Ireland Executive to try and reach a solution. It damages us all if people can move to Northern Ireland to store their ill gotten gains from anywhere else in the world and nothing can be done about it.

[Lord Taylor of Holbeach]

I thank the noble Baroness. She has raised an issue that I have identified already. I should reassure her that the Government are giving all the support to David Ford that he would ask for. However, in many ways the solution to this problem clearly lies with the people of Northern Ireland because it is the Northern Ireland Assembly that controls the Northern Ireland Executive. Indeed, this is long term an unacceptable state of affairs because of the very difficulties referred to by the noble Baroness, Lady Smith. We are well aware of it. That is why we have tabled order-making powers. As with other measures where we have not been able to get a legislative consent Motion, we are making every effort successfully to deliver a legislative consent Motion. We will then be able to ensure that these particular powers apply to Northern Ireland. There are dangers if they do not do so.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for that explanation. I do not want to detain the House. Is he saying that he does not see any role or any responsibility for Home Office or Northern Ireland Ministers in trying to resolve this position?

[Lord Taylor of Holbeach]

My Lords, I started off by saying to the noble Baroness that we have given all the help that we believe will be helpful to getting a solution to this problem. We would do nothing other than do all we can to ensure that we get the legislative consent Motion which a number of measures under the Bill require to bring Northern Ireland fully into the provisions of the legislation that is being provided for in the Bill.

Visas: Chinese Visitors

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 19th March 2013 Lords Chamber

[Lord Taylor of Holbeach]

There are no visas for Hong Kong or for Taiwan.

[Baroness Smith of Basildon]

My Lords, I am disappointed that the Minister sounds extraordinarily complacent on this issue. He has heard from all sides of the House that there is a serious problem, and it is not the case that people are saying there should be no visas. It seems that we are making matters extraordinarily difficult for people from China and, as we have heard, from Brazil who would contribute to the economy of this country. Does the Home Office or any other part of government undertake an economic assessment of the impact these visa regulations are having?

[Lord Taylor of Holbeach]

My Lords, there are no visas for Brazil, and there is no plan to introduce them. That decision was made last week, and an announcement was made to that effect.

I am not complacent about this issue. I see the enormous potential of tourism and commercial links with China. I think it is a very important area of activity. However, as I explained in my answers to noble Lords, we need to maintain a visa system for our own border security. Having decided that we need to put one into place, and I am very pleased to hear that the noble Baroness, Lady Smith, agrees with that decision, the task is to try to make sure that the processing is as straightforward and easy as possible.

I have given illustrations of the figures. We should talk in figures and not in speculation. I have given the figures that 97% of visa applications are processed within 15 days and that our charge of £81 compares with the £126 it costs a UK citizen for a visa to go to China. We try to keep our service as competitive as possible, and it is right to do so.

Crime: Detection Rates

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 14th March 2013 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what assessment they have made of crime detection rates.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, this Government do not assess the performance of police forces through centrally mandated targets. However, we are ensuring that the public and PCCs have access to consistent and comprehensive information on all crime outcomes. This supports police accountability, as the public can now hold the police to account for how they respond to crime in their area.

[Baroness Smith of Basildon]

My Lords, I am not sure that that really answers my Question. Perhaps I can be clearer. Government cuts mean that 15,000 fewer police officers will be in place by the time of the next election. It is not therefore rocket science to understand that last year 30,000 fewer crimes were solved. The Minister will be aware that forensic evidence is a key part of bringing criminals to justice. Can I direct him to yesterday’s evidence from Michael Turner QC, chairman of the Criminal Bar Association, to the Science and Technology Committee of the other place? He said that following the Government’s abolition of the highly regarded Forensic Science Service, the quality of expert witnesses being used by the crown was now, in his words, “variable”. Is the Minister aware of the frustration of so many investigating police officers who are experiencing serious delays in getting the forensic evidence reports they have taken at the scene of crime? They are not getting them in time. Given the questions on the quality and delays in the system in getting a forensic evidence service, does the Minister think that scrapping the Forensic Science Service was a good idea?

[Lord Taylor of Holbeach]

I have been to a number of forensic science laboratories in the course of my work, and I have seen that the quality of work being done there is second to none. Indeed, on DNA activity in particular, we are ahead of the game. It is important to emphasise that the background painted by the noble Baroness is inaccurate to the extent that she failed to recognise that recorded crime was down by 10% in the first two years of this Government.

Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 6th March 2013 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, these regulations are a technical measure to implement the EU directive on electronic commerce, known as the e-commerce directive, in respect of the new Section 59A of the Sexual Offences Act 2003, on trafficking people for sexual exploitation, and amended Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, on trafficking people for labour and other exploitation. These changes to trafficking offences were made by the Protection of Freedoms Act 2012.

The e-commerce directive supports free movement in the provision of information society services; broadly speaking, commercial activities that take place online in Europe. It covers online activities, such as selling goods and services, hosting a website or providing web or e-mail access. The trafficking offences can be committed online where the arranging or facilitating takes place over the internet. Therefore the e-commerce directive needs to be implemented in respect of the human trafficking offences.

I should mention some of the history regarding the implementation of the e-commerce directive, which was originally implemented by regulations in 2002. Those regulations applied the directive to all offences that existed at that time. For offences created after that date, as in this case arising from amendments to the Protection of Freedoms Act 2012, we have to implement the directive on a case-by-case basis.

I will address briefly some of the details of the regulations. Regulations 3 and 4 implement the directive’s country of origin rules. These rules broadly say that a provider of information society services must be regulated by the state in which the provider is established, not the state in which the services are received. This is provided for by Regulation 3.

Similarly, the country of origin principle means the UK must not restrict the freedom of service providers established in another European Economic Area state to provide their services in the UK unless certain conditions apply. Such providers will generally be regulated by the state in which they are based. We would expect EU member states, all of which are bound by the human trafficking directive, to pursue prosecutions under their relevant domestic trafficking offences.

Regulation 4 sets out that proceedings may not be brought against a service provider established in another European Economic Area state, unless specific public interest conditions are satisfied. The key question for these purposes will be whether a prosecution is proportionate. The CPS will take into account all relevant factors, including, first, whether a prosecution is to be brought under the domestic law of the state in which the service provider is established—if such a prosecution is to be brought, it will be difficult to show that it is proportionate to prosecute here as well; secondly, where the evidence is located; and thirdly, the nature of the offending that has taken place, for example, whether the service provider part of an organised crime gang focused on trafficking persons into the UK. Overall, the CPS will need to decide whether the conditions are met on a case-by-case basis.

Regulations 5, 6 and 7 implement the requirements of the directive in relation to intermediary service providers which carry out certain activities essential for the operation of the internet: those that act as mere conduits and those providers that cache or host information. The directive requires us to limit the liability of such intermediary service providers in specified circumstances. For example, a host is not liable if it had no knowledge, when the information was provided, that it was part of the commission of a trafficking offence. It is important that we do not unnecessarily criminalise service providers that will not always be aware of the use being made of their services.

The UK has always been a world leader in fighting human trafficking and has a strong international reputation in this field. In July 2011, the UK applied to opt in to the EU directive on human trafficking. Opting in sends a strong message that the UK is not a soft touch on this issue and supports the collaborative international work that is a vital element in dealing with such complex international organised crime. The UK already has a strong basis for such collaboration through the work the Serious Organised Crime Agency undertakes with foreign law enforcement agencies. In recent years, police forces have participated in a number of joint investigation teams, in support of the investigation and prosecution of traffickers.

The Government’s human trafficking strategy, published on 19 July 2011, identified four core themes: improving identification and care of victims; enhancing our ability to act early before harm reaches the UK; smarter action at the border; and more co-ordination of our law enforcement efforts in the UK. An update on the strategy was included in the first report of the Inter-Departmental Ministerial Group on Human Trafficking, published on Anti-Slavery Day, 18 October 2012.

At its heart, human trafficking involves the movement of individuals for the purposes of exploitation. That movement and exploitation, particularly when it has an international dimension, can involve extensive co-ordination in the planning, recruitment and transportation of victims. It is likely that criminals are using new technologies, or old technologies in more complex ways, to facilitate their communications and avoid detection. It is not known whether the use of new technologies has increased trafficking in persons, but it is believed that increased use of technologies has made trafficking activities much easier to perform.

We are commencing the amendments made by the Protection of Freedoms Act on 6 April, in line with the Government’s wider timetable for implementing the EU directive on trafficking in human beings. It is our intention that these regulations come into force at the same time. I commend the regulations to the Committee.

[Baroness Smith of Basildon]

My Lords, I thank the Minister for his explanation. These are very technical regulations. They are the kind of regulations that you wade through as the sun goes down and hope that you will follow all the information they contain. Therefore, the Minister’s explanation was helpful. Although the regulations are technical, they are extremely important. He, like noble Lords on this side of the Committee, will fully appreciate just how awful human trafficking is.

In preparing for today’s discussion, I read some accounts of people who had virtually been sold into slavery to provide cheap labour for companies or often to engage in illegal activities and prostitution. It really is horrendous. Modern technology is usually a way forward, but it is not always a force for good. In this case, it is a force for evil and enabling illegal activities, which is why these regulations are so necessary. Therefore, I welcome the regulations and am pleased that they have been brought forward today. One of the reasons why we are pleased to see them is because the Government were rather tardy in bringing forward the relevant measure as regards the previous EU directive on preventing and combating trafficking in human beings and protecting its victims. In fact, they were going to opt out of those provisions. However, I am pleased to say that the Government subsequently changed their mind, for whatever reason, and rightly decided to opt into that directive. These regulations extend that commitment, and we are grateful for them.

However, I wish to press the Minister a little further on opting in and out. An issue that has concerned me, and which the noble Lord and I have discussed across the Floor of the House, is that the Government intend to opt out of policing and criminal justice measures. I am worried that if they do so, these regulations would no longer be valid because they would have opted out of these provisions. I entirely agree with the noble Lord about their importance and am very concerned that we may face a situation whereby the Government decide to opt out of these provisions, having already opted in—a bit of a hokey-cokey, really. I hope that we stay in.

I have specific questions in relation to these regulations and to the other anti-trafficking orders that the Government have brought forward. My understanding is that the Government are now consulting on and preparing for measures to opt out of police and criminal justice. In that case, what consideration are the Government giving to interim measures? As the Minister and I know, those who are subject to trafficking in this way are among the most vulnerable of humans, in the most vulnerable position and need protection. If we are to opt out, it is all very well looking to opt back in in six months, a year or whenever we are given permission to do so by other member states, but there would be an immediate problem that these regulations would not be valid because we had opted out. I am not clear whether, in that situation, the Government would need to revoke these regulations individually or whether there would be a general opt-out and we would automatically be opted out of all EU police and criminal justice matters. I hope the Minister is able to say something about that. I agree with him about the reasons why he has brought these regulations forward today and about why they are so important.

My only other question is on the review. What will be the timescale for it? Will it coincide with the Government’s plans to opt out of police and criminal justice or will there be a set period? Normally such regulations say that they will be reviewed within three or five years, but there is no timescale in these regulations, and I wonder whether that is connected to the Government’s intention to try to opt out of policing and criminal justice. We support the regulations and think they are right, which is why I am concerned about this opt-out hokey-cokey that the Government have announced.

Citizenship Test

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 26th February 2013 Lords Chamber

[Lord Taylor of Holbeach]

I am sure that it does.

[Baroness Smith of Basildon]

My Lords, we introduced the citizenship test in 2005 and remain committed to it, but clearly a significant amount of time, effort and money has gone into these changes and the questions mentioned by the noble Lord, Lord Roberts. It has to be said that when the Prime Minister failed the test on live television in America, one has to doubt whether we have all the right questions. Given that 20% fewer foreign criminals have been deported and given the lengthy delays in the processing of visas, far exceeding what is reasonable or should be expected, as Her Majesty’s Inspector has pointed out, should the priority be changes to the citizenship test or should the key focus be on sorting out the problems connected with immigration and visas?

[Lord Taylor of Holbeach]

I do not think that it is necessary to tackle just one task at a time. Making this test relevant was an important task. Noble Lords will know that the current handbook has been in use for six years. It was time to have an update and to make it more relevant. The noble Baroness referred to serious issues on the part of UKBA, particularly its ability to cope with appeals. We are well aware of this and I am absolutely certain that the chairman of UKBA has this matter at the top of his agenda.

Immigration and Nationality (Fees) (Amendment) Order 2013

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 29th January 2013 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, this is a draft amendment to the Immigration and Nationality (Fees) Order 2011. The order concerns charging for visa, immigration and nationality services and it enables the UK Border Agency to specify applications, processes and services for which it intends to set a fee. I thank the noble Baroness for attending this debate, which is playing to a rather empty Room this evening. However, that does not belittle the importance of the measure, because specific fee levels will be set in separate legislation to be brought before this Committee in due course. For applications and services where we charge more than the administrative cost of delivery, the regulations are subject to the affirmative procedure. Noble Lords will have the opportunity to ask questions about the fees themselves in the debate which follows that second piece of statutory legislation.

In accordance with our legal powers, this amendment to the Immigration and Nationality (Fees) Order 2011 sets out new applications and services for which we intend a fee to be paid in future, and clarifies the powers under which some existing fees are set. The amendment enables the UK Border Agency to simplify its current charging structure for optional premium services and to widen the scope to develop and offer new optional services in the future. For example, there are currently two fees specified within the regulations for each application type made in the UK, depending on whether a migrant makes a postal application or one at a public inquiry office. Instead, there will be a single application fee and a single additional uplift fee payable for optional premium services that an applicant may wish to take up, such as making their application in person or seeking an expedited consideration of their application. This means that about 30 fees will be removed from the regulations, thus simplifying the legislation as well as giving greater flexibility to how the services are provided.

We want to extend the premium services that we offer to sponsors, and this change will give us greater flexibility to tailor services to meet sponsors’ needs. Rather than specifying applications for a change in the status of a sponsor licence, we want to clarify these as requests for optional services. As a first step, we will then look to extend premium sponsorship to tier 4 sponsors, building on the premium offer already available to those in tiers 2 and 5.

We also want to take the opportunity to make several clarifications. First, we wish to put on an appropriate statutory footing the basis on which fees are charged for tests administered for the purposes of the Immigration Rules. In addition, we are adding a power to set fees for the process of enrolling biometric information. We consider defining this as a process rather than as an application better fits the terminology used in the legislation that deals with the enrolment of biometrics.

We continue to value the economic, cultural and social contribution made by legal migrants to the UK and seek to ensure that the fees for visa, immigration and nationality services demonstrate that the UK retains its position as an attractive destination to work, study or visit.

As I have said, this order provides the enabling powers to set fees and we will return to Parliament in due course to debate further regulations, under the affirmative procedure, specifying the fee levels that rely on the powers in Section 51 of the Immigration, Asylum and Nationality Act 2006 and additional powers in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, as amended by Section 20 of the UK Borders Act 2007.

Noble Lords would want to ensure that the immigration system is paid for in a fair and sustainable manner, balancing the contribution made by taxpayers and those who use and benefit most from the system. The amendment contained within this statutory instrument will ensure that we can continue to strike the right balance, and I commend it to the Grand Committee.

[Baroness Smith of Basildon]

My Lords, I thank the Minister for his very thorough and helpful explanation of the order. He need not worry; I have no fears of not playing to a full house. One thing I have learnt in my short time looking at immigration issues in your Lordships’ House is that these matters are always widely read afterwards. I am sometimes taken aback by the number of e-mails and the amount of correspondence that follows any legislation in your Lordships’ House relating to immigration. That is very helpful because it helps to inform our debates.

I do not disagree with the noble Lord’s comments. He is right when he talks about balancing the contribution between those who use the system and the taxpayer. I have a couple of questions about the order which perhaps he can help me with. First, looking at the policy background, the Minister made it clear that the key part of delivering the immigration system which the public expects is acquiring the necessary resources to fund delivery and improvements in the services we offer.

We are all aware, particularly from the reports of John Vine, about the backlog and the delays in the system and how urgently improvements are needed. The Minister may have heard a Mr Hearne on Radio 4 the other morning, who is about to celebrate—if that is the right word—his first wedding anniversary next month and yet his wife, having gone over the various hurdles that people should when seeking to make their home in this country, still has not had a final decision about whether they can live a normal married life together. I have had an e-mail today from a couple who were told that they would have to wait six months for a decision; they have now been told it will be another five months. It is those delays in the system that bring it into dispute. I do not blame entry clearance officers, the people making the decisions; I think it is a resources issue. If the Minister is able to say anything about when he thinks we are going to see some improvements in the length of time it is taking to make decisions and the ability to clear the backlog, that would be very helpful, given that it is specifically referred to in the Explanatory Notes.

Another point I am unclear on, looking again at the helpful Explanatory Notes to the order, is that under the heading “Legislative Context”, in paragraph 4.1, the first bullet point says that the purpose of the instrument is,

“to allow the UK Border Agency to set fees for providing optional arrangements for processing immigration and nationality applications (currently the cost of such services is reflected in the relevant application fee)”.

If the cost of those services is currently reflected in the application fee, is the Minister proposing to reduce the current application fee and have a separate fee, or will there be an additional and separate fee? The fourth bullet point says that,

“currently such fees are treated as part of the application fee”.

This seems to mean that there is going to be an additional cost on something that is already included. I am not quite clear about what it means.

The third bullet point says that the purpose of the instrument is,

“to put arrangements for charging fees for tests administered by the UK Border Agency (or those acting on its behalf) for the purposes of the immigration rules on a statutory footing”.

Who are those who would act on behalf of the UK Border Agency? It is something that I should be aware of but perhaps the Minister can enlighten me. I am not clear which organisations or individuals would act on behalf of the UK Border Agency.

It is entirely reasonable that there should be charges. When we look at the level of the charges, that may be an issue to debate as well, but I appreciate that that is not before us today. If the Minister is able to clear up those points I would be very grateful.

[Lord Taylor of Holbeach]

My Lords, I am very grateful to the noble Baroness, Lady Smith, for raising these issues. She is quite right that in this area performance lies at the heart of everything. I am very grateful for the work being done by John Vine. He is driving improvements in the service by identifying points of weakness and the processes and individual cases about which the noble Baroness has communicated with me—and of which I was myself aware—in which there were delays in the consideration of someone’s personal position. Consideration has often been deferred, putting people in uncertainty.

The driver behind these changes is to make sure that the income that can be generated by fees is used to improve the service. This accounts for the pursuit of a premium service—which, I hasten to add, is not at the expense of the normal service but enables people for whom this is very important to have their cases dealt with in the most efficient way to suit their personal needs. It is exactly what we want to turn UKBA into: a consumer-oriented organisation that seeks to serve the people who wish to use its services.

I turn to the issues on which the noble Baroness questioned me. Most of the backlog in marriage cases was accounted for by people who had been refused by the normal process but were trying to circumvent the formal appeals process—the noble Baroness will know that there is an appeals process—by requesting an informal reconsideration. The 2,000 cases that were identified as requiring a decision have now been dealt with. The details of those who requested an informal reconsideration are being passed to Capita, who will contact them on behalf of the UK Border Agency as part of the work to ensure that those with no right to remain in the United Kingdom leave the country. If they refuse, I am afraid that their removal will have to be enforced.

[Baroness Smith of Basildon]

I appreciate and fully understand that. I was not suggesting that somebody who is not entitled to remain in this country should be able to do so. I am a little concerned about the Minister’s reference to circumventing the process. My understanding is that the process by which people were refused and then looked to have their case reconsidered was part of the system. They were not going against the rules, but acting within them.

[Lord Taylor of Holbeach]

I accept that. That is why we were concerned about it and why John Vine was right to draw the attention of Parliament to the situation. We are very concerned to make sure that it does not continue. This statutory instrument is about trying to engage the involvement of the consumer in the payment of fees, to strengthen the service that can be provided by UKBA.

The noble Baroness asked which companies act on behalf of UKBA. Within the UK, the Post Office uses biometrics and provides a check-and-send service. Overseas, two commercial providers offer assistance with processing applications and premium services. I cannot provide the names of those organisations now, but I will drop a line to the noble Baroness. She also asked why the fee was not included as part of the application fee. That is because the UK Border Agency awarded the contract for the provision of the third-party biometric service to the Post Office. I hope she will understand that that is separate from the fee that is charged for the application.

[Baroness Smith of Basildon]

I am sorry; perhaps I was not quite clear. I understood why, at the third bullet point, it says,

“arrangements for charging fees for tests administered by … those acting on its behalf”.

My point is about it including the relevant application fees on the first one, whereas at the moment it says,

“the cost of such services is reflected in the relevant application fee”.

I am not sure why legislation is needed to have a charge if it is already included in the current application fee. It is the first bullet point.

[Lord Taylor of Holbeach]

Yes, I agree with the noble Baroness. It might sound like a tautology but I am sure that it is relevant. I hope that the noble Baroness will excuse me if I do not explain the full details of that. I will certainly write to her about it.

The noble Baroness asked about the backlog of cases. The UKBA’s website would accept a reconsideration request if it was submitted before November 2012, when the question first arose. I hope that the noble Baroness is content with those responses. I have given an undertaking that I will write to her. I will do so, and put a copy in the Library. I commend the order to the Grand Committee.

Misuse of Drugs Act 1971 (Amendment) Order 2013

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 29th January 2013 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, this order, which was laid before Parliament on 8 January, fits within the Government’s drug strategy and policies to tackle the threat posed by new psychoactive substances sold, in popular parlance, as “legal highs”. The Government welcome the recent contributions made by Parliament to inform our considerations in this area of our work. We are indeed much engaged in discussions and reviews of our policies.

Keeping our drug laws up to date remains a key element of this Government’s drug strategy to reduce drug harms, and we make no apologies for our third drug control order since coming into power. The order will implement the Government’s decision, in late 2012, to accept the advice of our independent experts—the Advisory Council on the Misuse of Drugs—to control a number of new psychoactive substances as class B drugs. The order will amend Schedule 2 to the Misuse of Drugs Act 1971 accordingly.

It will add O-desmethyltramadol to the list of class B drugs. This compound, currently sold as a legal high or as an undeclared but active ingredient in similar products in Europe, has not been detected in the UK. However, the ACMD advises that it poses a serious health threat. It has been associated with a number of deaths in Sweden. We agree with the ACMD that there is compelling evidence of harm to justify pre-emptive control to protect the UK public.

Noble Lords previously considered the 2009 drug control order on synthetic cannabinoids. These are man-made chemicals that mimic the effects of cannabis but also present similar harms. Over 140 of these compounds became controlled class B drugs. This was achieved by using a generic definition comprising five chemical families to capture these drugs. As these have mostly disappeared in the UK, as far as we can identify, new compounds have emerged. We have been monitoring them with the ACMD through UK and EU drugs early-warning systems.

The order will update four of the five chemical families identified in 2009 and increase their number to eight so that the generic definition captures more of the chemically related compounds. These include AM-2201 and MAM-2201, which have been identified in samples of the legal high products going under the brand names—if that is the phrase to use—Black Mamba and Annihilation, which have been linked to several hospitalisations.

The order will also make methoxetamine a controlled class B drug, as recommended by the ACMD. Noble Lords will recall that this drug has been subject to a temporary class drug order since April last year. The ACMD has also provided a generic definition to control the drug so that similar compounds which could replace it in the legal high market are also controlled.

The order will be complemented by two negative instruments in relation to the designation and scheduling of the drugs which will become controlled under the Misuse of Drugs Regulations 2001. In line with the ACMD’s advice and following consultation with the healthcare sector and industry, they will be designated as schedule 1 drugs, meaning that activities relating to them will be permitted for research or other special purposes subject to the relevant Home Office licence.

The Government take seriously the protection of public health, and protection against the threat posed by potentially harmful emerging drugs in the UK and abroad is necessary. I commend the order to the Committee.

[Baroness Smith of Basildon]

My Lords, I feel that I may have been a little unkind to the Minister last week when I suggested that he might have to read out in full the names of all the drugs that we would be looking at today. It is perhaps more useful to use the street names, which are, for good reason, a lot easier.

I suspect—if it is not a very bad pun—that there is not a cigarette paper between us in looking at what we can do to end the scourge of drugs and the damage that they cause to so many young people in society. We therefore welcome the order and support action to protect young people from these substances. It is always wise, as is evident in the order, to act as early as possible. I welcomed the temporary ban placed previously on “mexxy”—MXE. The Minister may be aware that when we considered the relevant order—I appreciate that he was not the Minister at the time—I raised a couple of issues. Despite our full support for the order, we were concerned that it had taken a long time to get to your Lordships’ House. We were behind a number of other countries, such as Russia, which had already taken action. We welcome the fact that O-desmethyltramadol is being added to the list of class B drugs before any evidence is widely available in the UK. We know that the drug travels across Europe and that young people get it, and it is right that, based on the evidence of the danger that it causes, action should be taken as soon as possible.

When discussing the previous order, I asked about the Government’s relationship and co-operation with the European Monitoring Centre for Drugs and Drug Addiction—EMCDDA. We were concerned then that the EMCDDA had identified 90 new substances in 2010 and 2011 and, I understand, even more in 2012. At that point, the Home Office’s early warning system had identified only 11 of those drugs. The noble Lord, Lord Henley, the Minister at the time, was unable to answer that point in Committee—I appreciate that the Minister may not have information today, but, again, I would be happy for him to write to me. I am concerned that we should not lag behind what the EMCDDA is doing. In the case of O-desmethyltramadol, it is clear that the Government are not lagging behind, but given that 90 new drugs were identified up to 2011 and even more in 2012, it would be interesting to know how many of them have been identified by the Home Office’s early warning system. How do the Government and the Home Office co-operate with the EMCDDA? It is quite clear that if the centre has information that is useful to us and allows early action to be taken, as with this particular drug, it would be very welcome.

Asylum Seekers: Support

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 24th January 2013 Lords Chamber

[Lord Taylor of Holbeach]

My noble friend makes a very good point. In the briefing that I had before answering this Question, I was surprised to discover that there were two levels of benefit. It is important to emphasise what I said in answer to the right reverend Prelate’s supplementary question: a review is going on and we should await that to see what recommendations it makes. It must be important to take on board the point that my noble friend makes.

[Baroness Smith of Basildon]

My Lords, as we have heard, children are the most vulnerable and at their most vulnerable in asylum and immigration cases. In the coalition agreement, it was pledged to end all child detention for immigration, and the mid-term review states that that pledge has been kept. Up to October last year, 113 children have been detained, albeit some in the more family-friendly unit at the Cedars, but 41 were detained elsewhere. In October 2012, 16 children were being held in detention; there were eight in the Cedars and another eight in other centres, including Yarl’s Wood and Tinsley House which has not even been approved by Her Majesty’s Inspectorate of Prisons. Can the Minister confirm whether any children are today in detention, including in the Cedars?

[Lord Taylor of Holbeach]

No, I cannot confirm that to the noble Baroness; I do not have the up-to-date figures. As she indicated, there is a clear drive by the Government to eliminate situations where children are kept in those settings and to find alternative ways to accommodate families so that children are not separated, if that is possible.

I should point out that the level of support for families in this country is far greater for a family of four, for example, compared with Sweden or Denmark. Indeed, if there is any sector where there is a lesser payment than elsewhere, it tends to be for single adults.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 18th December 2012 Lords Chamber

[Baroness Smith of Basildon]

I readily concede the noble Lord’s encyclopaedic knowledge of the Companion, but I think the reasons why the amendments have been brought forward today are very good. However, it is unusual, and perhaps it would have been better to have had longer discussions about some of these issues, and to have had responses that satisfied the House earlier in the Bill’s proceedings.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I am sorry if my responses on Report failed to satisfy the House; I hope that I can satisfy it today. I understand that the scheduling of today’s business was agreed through the usual channels, and nobody has a more vested interest in the speedy resolution of business than I do, as I believe I will be the last speaker on today’s business.

My noble friend quite rightly pointed out that his amendments are similar to those which he tabled on Report. I explained then that our principal reasons for resisting the first amendment were the detrimental impact on the statutory appeals framework, and the increased number of appeals and costs that would result. Although this amendment is framed more tightly and specifically, the same detrimental impact will result from it. While I recognise the intention of the amendment is to reduce the delay in bringing an appeal for children and trafficked persons, the consequences for the appeals framework are not justified.

Only a minority of unaccompanied children who claim asylum are affected by this policy in the way described by my noble friend Lord Avebury. It affects only those who are older than 16 and a half when refused asylum but granted some other form of leave. These children are close to adulthood and have a right of appeal should a decision be taken to remove them after their leave runs out at age 17 and a half. As I said last time, this delay is not unreasonable.

I say to the noble Earl, Lord Listowel, that the age of 18 is a statutory boundary between childhood and adulthood, and Governments have to live within the constraints of that. It is important to recognise that in all cases, before a child or trafficked person is removed from the UK, they will be entitled to a right of appeal. That is part of the process.

The Government’s policy ensures that individuals do not have multiple appeal rights over a brief period of time, possibly raising the same arguments on each occasion as matters may not have evolved since their last appeal. The amendment would undermine this key principle of the Secretary of State’s asylum appeals framework.

I turn now to Amendment 5, which my noble friend has also brought back. As I set out previously, the individuals we are seeking to capture in this clause are those excluded by the Secretary of State—that is to say, they are individuals who pose the highest threat to the public, be it for engagement in terrorism, serious criminality or unacceptable behaviour. It is therefore only right that an appeal against the cancellation of leave decision that accompanied the Secretary of State’s decision to exclude takes place from outside of the United Kingdom.

To be absolutely clear—I do not want noble Lords to feel that I am seeking to mislead them in any way—and as has been raised in previous debates, there is no policy of waiting for an individual to leave the United Kingdom before excluding them. Indeed, a series of deportation orders in cases in respect of national security activity are ongoing at the moment. However, in many of these cases we are talking about a situation where an individual leaves the United Kingdom for a period of time to meet with like-minded individuals and potentially to acquire new skills which, if utilised back in the United Kingdom, can pose a significant and serious threat to the population as a whole. That is why in such cases, having seen the intent of their activities while abroad, the Secretary of State takes the decision to exclude on the grounds of non-conduciveness. It would be a highly risky strategy to allow such individuals simply to come back to the United Kingdom and to exercise a right of appeal. It would also undermine a crucial disruption tool used for the protection of the general public.

Animals (Scientific Procedures) Act 1986 Amendment Regulations 2012

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 13th December 2012 Grand Committee

[Lord Taylor of Holbeach]

Certainly, and I hope that we will be able to arrange that in the new year. I think that that is realistic; we have few days left this year; but I am happy to do that. We might also discuss the Weatherall report and the primates strategy. We agree that it is important that the use of primates in research is appropriately monitored. We have made that clear in everything that we have said. We keep the Weatherall report under consideration at all times, but I cannot give a progress report. Perhaps by the time we meet, I might know the answer to the question about page 140. I will try to find it.

I move on to the comments made by the noble Baroness, Lady Smith. They joined up with the points made by the noble Lord, Lord Wills. I made it clear that the Animal Sciences Committee is being set up. It will be very similar to the previous committee, but we wanted to create a new committee and the directive requires us to have such a committee. As I said, we have recently advertised for a chair and members, including a member with expertise in ethics.

I have dealt with the question of timing. I have dealt with the guide. The noble Baroness, Lady Smith, was particularly interested in knowing in which particular areas standards have not been maintained or transposed. We are retaining all the higher UK standards in every case where it will ensure better animal welfare. If she feels that that is not the case in particular instances, I should be very grateful if she would let me know. That is certainly the objective.

[Baroness Smith of Basildon]

That is extremely helpful; I am grateful to the noble Lord. One of the specific instances I mentioned in my comments was about annexes to the directive on humane killing. I do not expect him to answer that today. I take the point that he has made, but if he could write to me on that, that would be helpful.

[Lord Taylor of Holbeach]

I can answer it today, because I have the answer here, I hope. We are not transposing Annexe 4 as it stands. We are amending our current ASPA Schedule 1 to retain more humane methods. There is no question of clubbing kittens or chopping the heads off sparrows. I can assure the noble Baroness that we will maintain those higher standards.

There is a clear commitment to prohibit the use of great apes; I think that I made that clear at the beginning, and that continues. We also agree that the current high cage and enclosure sizes are good for welfare, which is why we have maintained all those standards in the transposed regulations.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Wednesday 12th December 2012 Lords Chamber

[Lord Taylor of Holbeach]

I do not accept that at all. If someone’s application to visit this country is refused, then I regret to say that it must be because either they have failed to fill in the application correctly or there are substantial reasons why they should not be allowed to make that visit. I cannot accept the premise of my noble friend’s argument.

The Government are not persuaded by the case for my noble friend’s Amendment 118A. To accept it would introduce a right of appeal for people who have, for example, practised criminal or other dishonest behaviour, while those who have acted honestly would not have an appeal. It cannot be right that that type of behaviour is rewarded.

Regardless of whether an application is refused, relying on a general ground of refusal, the applicant is free to re-apply setting out why the previous refusal was unjustified. All refusals on general grounds are authorised or reviewed by entry clearance managers before being served. If refused under general grounds, it is also open for an applicant to make a fresh application by providing new evidence which an entry clearance officer will take into account. A refusal under paragraph 320 of the Immigration Rules may also be challenged by a judicial review. Prior to making decisions, all entry clearance officers have to pass a three-week training course, part of which focuses on making decisions using paragraph 320 of the Immigration Rules. There is also an e-learning package specifically relating to the sub-paragraphs of paragraph 320 that may lead to an applicant’s future applications being automatically banned. This package is completed by entry clearance officers during their induction training on arrival at their decision-making post.

I think I have demonstrated that the process is thorough and that there will be considerable advantage to the efficiency of the system and, indeed, to applicants themselves if the Government’s proposals are approved. I trust that I have been able to satisfy my noble friend.

[Baroness Smith of Basildon]

My Lords, the Minister has always been generous with his time and courteous in his response, but I am sad that he is also disappointing. He seems to have relied on existing guidance being adequate and user-friendly. I thought that my comments that the genuine mistakes that are made could be more easily rectified than they are under the current process or the process proposed by the Government indicated that it is not quite user-friendly. No matter how many languages are used, if people do not understand what is required of them they cannot provide it. Perhaps the Minister thinks the guidance is adequate. If it were adequate, applicants would submit all the information required. There is no interest for applicants to make a mistake or not to supply something that they should.

It beggars belief and is against natural justice that the appeal process can be scrapped and that the Government are not taking steps to improve the original decision-making when the figures show that 37% of appeals are successful.

[Lord Taylor of Holbeach]

The allegation that we are not taking steps to improve the original decision-making has been refuted by what I said in my response to the amendments. I do not want to make an argument out of this issue, but the Government are very much focused on trying to ensure that the decision-making process is efficient and fair to applicants, as well as to taxpayers.

[Baroness Smith of Basildon]

I do not doubt that that is the Minister’s intention, but when we hear that the success rate of appeals against family visit visa refusals has risen from 19% in 2004 to 37% in 2010, that does not sound as if the system is getting more efficient, rather that the system is less efficient.

The point I am making is about removing the appeal process at that time. We heard from Sir John Vine about the huge backlog of cases that are currently in the system. There are 100,000 envelopes unopened, including 14,000 containing recorded delivery information. I think that our amendment is a common-sense approach. Remarkably, even the noble and learned Lord, Lord Lester of Herne Hill, who takes a legal approach to these things, agrees with me on this point. I am seeking to be helpful to the Minister and the Government. He may think there are times when I am not, but on this occasion I am seeking to be helpful.

The Minister spoke of the letter which is sent to applicants on reasons for refusal. That reason for refusal may be one very minor, technical matter that can easily be resolved via a phone call. I am extremely disappointed by the Minister’s response. I hope he will take this away and consider further the points that I have made. I beg leave to withdraw the amendment.

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[Baroness Smith of Basildon]

My understanding of the case concerning Mr Braithewaite and Miss Williams is that the defendant was charged and convicted of a Section 5 Public Order Act offence for the homophobic insults. There were other offences as well, but homophobic insults were a significant part of that prosecution. It is for the Government to bring forward what they intend to do. I am not against change or further discussion on this but, on the evidence today, I want to see the evidence from the Government in much greater detail and to know exactly what the outcomes and the consequences would be for those who the law currently protects.

[Lord Taylor of Holbeach]

My Lords, I understand the interest that has been shown in this debate. I thank the noble Baroness, Lady Smith, for at least demonstrating that the issues that the House has to consider are perhaps a little more complicated than some of the speeches have implied. It is important to stress that there was a further sentence to the letter of which the noble Lord, Lord Dear, kindly sent me a copy. After the comments about the ability to prosecute, the letter continued:

“However, I appreciate there are other policy considerations involved”.

He is right that the Government have to consider the full implications of this amendment.

Let us make it clear: the Government are not seeking to change the law. It is this debate and this amendment that are seeking to change the law. The law has existed and has protected free speech, and incidents have been demonstrated. But we need to be properly considerate before we change the law in this area.

Immigration: Home Office Meetings

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 3rd December 2012 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government when Home Office Ministers last met the Chief Inspector of Borders and Immigration; and how often such meetings are held.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, Home Office Ministers have regular meetings with officials and others as part of the process of policy development and delivery. As was the case under previous Administrations, it is not the Government’s practice to provide details of all such meetings.

[Baroness Smith of Basildon]

My Lords, I am none the wiser after that Answer than I was before I asked the Question. There was a serious reason for asking, because it is clear that there are serious problems in the UK Border Agency. Even the recent fall in net migration is due to British citizens leaving the country and the fall in student numbers. Time and again, the chief inspector has found problems but, despite commitments to his recommendations to make the system more efficient and fairer, it just does not happen. We now even have the Mayor of London accusing the Government of turning a blind eye to long-term illegal immigrants.

Is part of the problem cuts that have led to 5,000 fewer UK Border Agency staff? Can the Minister give a commitment to your Lordships’ House today that the Government will act, not just promise to act, on the chief inspector’s reports?

[Lord Taylor of Holbeach]

The chief inspector has published two reports recently, and I thank John Vine, the chief inspector, for them. He will be appearing before the Home Affairs Select Committee tomorrow. I totally accept the view that the UK Border Agency has not performed as strongly as this House would expect, but it is improving, and that is the right direction of travel. The question we have to ask ourselves is: for how long does this go back? I fear that it goes back to 2006, when there was a huge backlog of cases, and that has taken an awful lot of clearing up. The current situation is greatly improved.

UK Border Agency

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 27th November 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, it might help if I advise the Minister that the comments by the Mayor of London, Boris Johnson, were about the Government’s policies on students and immigration from India. Perhaps the best advice for the Minister is not to agree with Boris, but he might want to agree with government policy. There is clearly a difference in the Conservative Party on this issue.

On the subject of the report which the noble Lord, Lord Avebury, mentioned, it is not the first time that John Vine has raised very serious concerns about the UK Border Agency. This report is shocking: it actually says that Home Office UK Border Agency officials lied to Parliament. I am pleased to hear the Minister’s comments that the Government are accepting all 10 of John Vine’s recommendations. However, John Vine has previously complained about his recommendations being accepted and then nothing happening. How will the Government ensure that these recommendations are acted on? How will they be monitored? Can the Minister commit now to reporting progress back to Parliament?

[Lord Taylor of Holbeach]

I am always happy to report back to Parliament on this sort of issue. This issue has a very long history and it did not start with the coalition Government coming into office. The key question is: is the agency now directed in a way that is going to lead to improvement? I think that the answer to that is yes. In respect of the particular comments made by individuals in front of the Home Affairs Select Committee, the individual concerned has written to the committee explaining the reason why he inadvertently misled them.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 27th November 2012 Lords Chamber

[Lord Taylor of Holbeach]

The effect of the order-making power would be to make new arrangements for counterterrorism policing in the United Kingdom, if that was the decision that was made. I cannot state the matter more clearly. No decision has been made. I am arguing neither for nor against the change. I speak neither for the status quo nor for the future. I am seeking to provide through the Bill a mechanism by which future government decisions can be reflected after a due process of consultation with all bodies involved and after the parliamentary process.

We expect police and other partners to be fully involved in the review when the time is right. Any decisions should be evidence-based and preserve those features of the current arrangements that work well. No one is going to upset an arrangement that is fully satisfactory unless they can be certain that the alternative arrangement will be an improvement.

We all recognise that counterterrorism policing structures work effectively. It is right and proper that we do not rush decisions in relation to counterterrorism now. Equally we do not want to rule out the possibility of some change in the future. I therefore urge the noble Baroness to withdraw her amendment.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for explaining some of the reasoning behind the Government’s position. At the very beginning of his comments, he said something with which I entirely agree. If my handwriting was fast enough to catch his comments, he said, “In time it might be right to consider these national arrangements with changes to the national policing landscape”. I entirely agree with him on that point. It may well be the right thing to do, but the issue is the consideration that your Lordships’ House is able to give to those proposals. The Minister referred to a review on this issue. My understanding is that there is a Home Office review, but it seems a bit premature to make decisions at this stage to give a power to the Government to transfer the counterterrorism function from the Metropolitan Police to the new National Crime Agency without the full consideration in Parliament that a primary legislation route would allow. This is an extremely serious issue. As I said in my original comments, nothing is a more serious function of government than ensuring the safety and security of citizens.

I am not an expert on counterterrorism. I defer to the noble Lords, Lord Blair and Lord Condon, in the role that they have had. They expressed serious reservations about the transfer. They said that that is not the issue at stake today and made the case that it should be undertaken only after full scrutiny. The noble Lord, Lord Condon, said that he did not want to see a turf war between the Metropolitan Police and the National Crime Agency. The noble Lord is absolutely right in that. I do not think that there will be a turf war. My experience of those involved in counterterrorism responsibilities and security is that they want what is best. I think that they would have an enormous contribution to make if this House were discussing the issues and we had legislation before your Lordships’ House and the other place on the role of the security agencies and the role of those involved in counterterrorism in the Met. They would make presentations to your Lordships’ House and to committees—perhaps to a Select Committee—and that would be extremely valuable in considering this issue.

The noble Lord, Lord Dear, said that he felt that the NCA could, in time, be a proper receptacle for counterterrorism. It may well be, but I do not think that is the issue today. The issue is whether it is appropriate at this stage to give the Government the power to transfer counterterrorism from the Met to the National Crime Agency by a super-affirmative order. I personally think that the super-affirmative order is a clumsy legislative mechanism. Noble Lords who have read Schedule 18 might not be reassured by that. However, the route of primary legislation gives this House an opportunity to exercise its responsibilities in this regard.

To give the Government the power to transfer counterterrorism from the Metropolitan Police to the new National Crime Agency without full parliamentary scrutiny would be a serious step. The Constitution Committee has voiced concerns about it. The Joint Committee on Human Rights has said that this clause should be deleted from the Bill. The role of Parliament is properly to scrutinise legislation and properly scrutinise such serious matters. This clause will severely restrict the right of Parliament to scrutinise such a transfer of some of the most important responsibilities that the state holds. The Minister has sought to reassure us on this issue, but he has not been able to do so. I beg leave to test the will of the House.

--- Later in debate ---

[Lord Taylor of Holbeach]

I thank the noble Baroness for raising these issues. Of course, it is important that we consider the impact of this legislation on Northern Ireland, which the noble Baroness and I have discussed.

It is critical that the National Crime Agency has a UK-wide presence, reflecting the reach and threat of organised crime. In providing a UK-wide presence it is equally important that the arrangements for the National Crime Agency respect the devolution of policing and justice in Scotland and Northern Ireland. As the activities of the National Crime Agency touch on a mix of transferred, reserved and excepted matters in Northern Ireland, the provisions require the consent of the Northern Ireland Assembly, in so far as they cover transferred matters.

As the House is aware, securing legislative consent is a devolved process. The Home Office and the Northern Ireland Office are supporting the Department of Justice in Northern Ireland to take forward these discussions. I am pleased to say that David Ford and his department are engaged in constructive discussions with the parties in Northern Ireland with a view to securing a collective discussion in the Northern Ireland Executive Committee and thereafter in the Assembly.

I recognise that progress has not been as quick as we might have liked. I also know that the interests of the noble Baroness, Lady Smith—like those of the Government—are firmly focused on ensuring that the National Crime Agency will have a UK-wide presence but that the arrangements work for Northern Ireland. I share the House’s disappointment with the slow progress, but it is critically important that the Northern Ireland Executive and the Assembly are reassured that, through proper scrutiny, the proposals will work in Northern Ireland.

I also appreciate that the Bill is nearing the completion of its passage through the House and that there is some concern that the House is being asked to endorse the NCA provisions before the Northern Ireland Assembly has had an opportunity to debate the legislative consent Motion. However, we have until the last amending stage—Report—in the other place to secure legislative consent. Should amendments be made in the other place, this House will of course have an opportunity to consider them in the spring.

I know that the House might have liked more details of how the negotiations are going, but I hope that noble Lords will understand that we should give David Ford the necessary space to continue his discussions. I am sure that he will wish to take note of what the noble Baroness has said in this debate. I can undertake to update her on progress in due course, but for now I ask her to withdraw her amendment.

I will turn briefly to the amendment at hand, which concerns paragraph 11 of Schedule 3 and seeks to provide additional consultation requirements to the Department of Justice in Northern Ireland before directing the director-general of the National Crime Agency to provide assistance to the Police Service of Northern Ireland, subject to the consent of the Home Secretary. This is not unlike the additional consultation arrangements provided for under paragraph 12, whereby the Department of Justice in Northern Ireland must consult the Northern Ireland Policing Board and others before issuing a direction to the Police Service of Northern Ireland to assist the National Crime Agency. This is an important protection to the backstop arrangements for directed assistance from a devolved body—in this case, the Police Service of Northern Ireland—to the National Crime Agency.

Among its other responsibilities, the Northern Ireland Policing Board sets the Policing Plan for the Police Service of Northern Ireland and as such has an interest in how devolved policing resources are being deployed, particularly if diverting resources meant that the objectives of the Policing Plan would not be achieved. It is with a view to that relationship and the interests of the Policing Board that additional consultation has been provided where the direction impacts on the provision of assistance by a devolved body. However, this will not be the case when assistance is provided by the National Crime Agency to the benefit of the Police Service of Northern Ireland.

I am sure that this amendment is seeking to provide an additional safeguard to Northern Ireland, but these further consultation requirements will only add further bureaucracy and delay to the National Crime Agency providing assistance to the Police Service of Northern Ireland in the unusual event that a direction is used. Furthermore, as I have indicated, discussions on the arrangements for the National Crime Agency are ongoing in Northern Ireland and it will be for the Northern Ireland Executive and Assembly to consider whether the arrangements are appropriate and what changes may be needed, if any. Only at that point will it be right for the Government to consider if changes are needed to the Bill—rather than for Westminster to decide what is in the best interests of Northern Ireland.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for talking about the wider context as well as the specific amendments. Although some of the contentious issues will have been removed with the deletion of Clause 2, he is quite right that some will remain and a legislative consent Motion will still be required.

I am grateful for the Minister’s offer to start to update me on the progress of negotiations. He will be aware that I have been asking for such information and my noble friend Lord Rosser tabled a parliamentary Question regarding the implications of this Bill for Northern Ireland. There has not been much information from the Government, which is frustrating because this matter has to be resolved.

I am not clear what the implications are for the Bill as a whole if a legislative consent Motion cannot be obtained. Perhaps the noble Lord could look into this and give us some advice on that. I am happy for him to write to me on that point. This underscores how important it is to reach this agreement with David Ford, the Minister of Justice, and with the Northern Ireland Executive as a whole.

I am grateful for the Minister’s explanation of why he is resisting my amendment—I am used to his explanations of why he is resisting my amendments. He will be pleased to hear that I do not intend to press this matter to a vote, but I would like to read his comments in Hansard and share them with my honourable friend Vernon Coaker in the other place. I beg leave to withdraw the amendment.

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[Baroness Smith of Basildon]

My Lords, I raised this issue in Committee with the then Minister, the noble Lord, Lord Henley. The debate got into a pickle and he was not able to answer all my questions. He kindly wrote to me, which was helpful up to a point but did not allay my concerns over this particular clause. My Amendment 31B seeks to delete paragraph 5 of Schedule 5, which is about the advisory panel. I admit that even after the debate in Committee and the letter from the noble Lord, Lord Henley, I remain really puzzled by the purpose of both that paragraph and the clause.

The Bill before us allows for an advisory committee to be set up to advise the Secretary of State once the director-general has been appointed as to the operational responsibilities that the director-general should have. I fully understand that not all candidates and not necessarily every director-general who will be appointed for however long it is will have all the skills and expertise in the wide-ranging areas of responsibility that the National Crime Agency will have. But the advisory panel, if it is the panel of experts that I am told it will be, is not to be set up prior to interview and so will not be able to ascertain with the Secretary of State what additional support a potential director-general would need. Instead, the Secretary of State can appoint an advisory committee after somebody has been appointed—although she or he does not have to set up such a panel—to give advice on the operational responsibilities.

When the then Minister responded previously, he said that the Secretary of State for the Home Office,

“will make an assessment of the director-general’s suitability and capability to exercise the operational powers in any given case. It might be that the advisory panel, through its chair, could then assess whether the director-general was adequately trained to exercise those operational powers”.—[Official Report, 20/6/12; col. 1824.]

So the Secretary of State, presumably prior to appointment, decides that the director-general is capable and suitable to have these operational powers. Then, having made a decision, she—one day we might have a he again—may ask an advisory panel to advise on what training is required. That is where this starts to break down. If this role is so important as to give the Secretary of State that advice, why is it an ad hoc body?

The reason given in the letter to me from the noble Lord, Lord Henley, was basically, as I have pointed out, about what a wide-ranging group of responsibilities there are and that it would be unusual and unlikely to find somebody who had the capacity and ability in all the areas they would need to have. But before the agency is set up, the Secretary of State has appointed a director: Keith Bristow. Clearly she is entirely confident that he has all these capabilities—although we are not clear what some of those capabilities could be because we have not yet seen a framework document—because she has not set up an advisory panel.

I can understand why it would be helpful prior to interview for the Home Secretary to have a committee of experts which would decide the operational powers required. I would have thought that those should be given in the job description for a director-general. The committee would say, “This particular candidate does not have this or that, but there is training”, and then look at what support was required so that the candidate chosen would have all of it. That is not what is here today.

I then find it strange that the Secretary of State can do away with the committee anyway and not have it there. If it is needed, it should be there permanently; if it is not needed, it should not be there at all. This is confusing and has not really been very well thought out. As I said, the previous response from the Minister did not give me the answer I sought. I am not likely to press this to a Division but I need to understand why the Government think this is an appropriate way forward; what skills they would expect the panel to have; and why, if it is so important that the Secretary of State has that advice, she can choose, basically on a whim, not to have it.

[Lord Taylor of Holbeach]

I shared with the noble Baroness an initial uncertainty over what this is about but it is to ensure that an appointee to the post of director-general has the proper skill base to exercise the operational functions that go with that job. We have an exceptional appointment in Keith Bristow because he has exercised the office of chief constable. There is no anxiety in that respect. Of course, any future appointment—we hope these will not be made that frequently—will need to have a process to make sure that we get the right person and then to ensure that there is a methodology in terms of operational authority, skills and competence.

I am very happy to make a second attempt at writing to the noble Baroness on this because I understand the complication and the somewhat complicated process of an ad hoc advisory committee to deal with these matters within the regulation. I am assured that it is the most effective way to ensure that no shortcuts are taken in this process and that we end up with a director-general of the NCA who has these powers. Having given an ad lib answer, I will, if noble Lords will allow me, go through what I have written here, too, because it is useful to reiterate the background.

First, the Bill is explicit on the powers that can be designated, those being police, customs and immigration powers. Secondly, the director-general will be subject to the same tests of suitability, capability and training as other NCA officers. That is an important part of consistency and a critical point of assurance given the range of powers we are talking about. There is a broad range of powers. Thirdly, through the advisory panel the Bill provides independent assurance on the training to the Home Secretary before a designation can be made. Fourthly, any setting aside of the part played by an advisory committee is subject to regulations that have to be made under an affirmative procedure. This regulation-making power does not undermine the arrangements for the advisory panel; rather, the two provisions will work together.

Police, customs and immigration powers provide an extensive suite of operational powers. It is right that the DG, as an NCA officer, has to go through the same checks of adequate training as other NCA officers—as well as suitability and capability on appointment—to be designated with those operational powers. That is what the advisory panel is for: to provide an independent check on the adequacy of the training so that the Home Secretary can designate the director-general with operational powers. The regulation-making power is necessary for circumstances where a prospective director-general has already undertaken the training necessary to enable him or her to exercise particular operational powers. In those circumstances it is sensible that the advisory panel is not required to consider whether the prospective appointee has the necessary training. Keith Bristow is a case in point. As a police officer he has been extensively trained in police powers throughout his career and is a highly experienced investigator. There can be little question that he has the necessary training to exercise the powers of a constable.

Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 26th November 2012 Grand Committee

[Lord Taylor of Holbeach]

The noble Baroness has been true to form in providing the Minister with lots of questions—quite rightly—to challenge his knowledge of the subject. I have taken quite an interest in this particular area, because, as Minister for Criminal Information, my Home Office responsibilities include the current CRB and ISA and will include the DBS. So I hope that I can reassure the noble Baroness.

[Baroness Smith of Basildon]

Perhaps I could correct something that the Minister said—that I am asking questions to challenge his knowledge of the subject. That is really not why I am asking them; I never doubt his knowledge of the subject. It is just because there are issues, when I am reading through an order like this, which occur to me and to which I would like answers. There is nothing more sinister to it than that.

[Lord Taylor of Holbeach]

I do not attribute any base motive to the noble Baroness. However, it sets me on key, because these are legitimate questions, as she rightly points out, to which everyone has the right to know the answer. It has been helpful to be able to explain the main purpose of the transfer of functions order, to put it in the context of the change of management that will flow from it. As we are making a substantial change, in the sense that the two bodies are being merged into one, it is important that I have the opportunity to explain it to the Committee. We are trying to bring about reform. We have tried to avoid unnecessary bureaucracy to encourage volunteering and employers and other organisations rightly to share responsibility for the adequate safeguarding of children and other vulnerable groups.

We need to move away from a tick-box mentality. Employers think that a criminal records inquiry is all that they need to check on the desirability of employing someone. That leads in quite well to the comments made by my noble friend Lady Walmsley, who has been assiduous in dealing with these matters. I am pleased that she paid tribute to the engagement of my predecessor, the noble Lord, Lord Henley, in this issue. This change is not designed, of course, to weaken checks. The noble Baroness mentioned this in the context of various current investigations and, in truth, these matters should have been promptly reported to the police. She also mentioned the absence of criminal records of particular individuals. This shows that effective management and supervision of volunteers and professionals within the group is key: the checks go only so far. Effective management and supervision of all volunteers is one of the reasons why we can have an updating service and a capacity for people to volunteer more easily. However, the people who are responsible for managing volunteers have an enhanced responsibility to make sure that they perform their tasks in a proper way and do not exploit them for more sinister purposes.

The noble Baroness, Lady Smith of Basildon, asked about guidance. She made a little fun of the complexity of the order. It is complex—it is the kind of document that drives me mad—and, as I am a simple country chap, I find this stuff largely beyond me. However, the law needs to be regularised and this statutory instrument is there to regularise the legal framework. The key is how the public see these matters. They do not see them through a statutory instrument but through what we tell them about the service. Promoting the CRB update service will be important as a part of this.

We have highlighted these changes through road shows and both organisations have been communicating regularly with stakeholders about the changes. So people who regularly use the facilities have been kept in the picture. I have been impressed by the way in which both organisations see themselves as supporting the employers and managers of the people who are part of the information service they provide.

It is important to mention—I alluded to this earlier—the role of the Home Secretary in connection with a non-departmental government organisation. The Home Office will continue to answer questions about the new body and its accountability from Members of Parliament in another place and Members of this House. We will monitor the progress of this merger and I hope, in a year’s time or so when the system has settled down, we might be able to persuade the usual channels to hold a debate on how the service is functioning. I hope I have been able to reassure noble Lords on that.

As for staff moving from Liverpool and Darlington, obviously this would be a cause for concern but it is not part of the current plan. The chief executive-designate and the chair-designate have confirmed that they do not anticipate doing anything about changing the two site locations in the first two years. This position has been shared with staff and the TUC. They will continue to seek some flexibility from staff over travelling between the two work locations to attend meetings so that they can establish an effective organisation, but that is going on already and people have been working well together. I have gathered that there is a sense of ambition about the new service from both the CRB and the ISA.

Will there be efficiency savings? There will be some efficiency savings but, more to the point, it provides a single focus for a complementary service that will be found within the CRB and the ISA. We are not looking to make any particular changes to the structures other than those that have already been consulted on. As the noble Baroness would expect, TUPE provisions will apply in these circumstances but there are no redundancies, so it has been a matter just of consultation and having regular briefings on how the future organisation might work to provide an integrated service.

The noble Baroness asked about numbers and whether there had been an increase in referrals to the ISA. I was not aware of that. Although I was shown some figures, I did not bring them with me today. I know that there was a slight rise in CRB figures over the summer but it was a modest percentage, which may have been because of the increased activity around the Olympics. I know we have figures from CRB up to September. If I may, I will write to the noble Baroness and give her the full set of figures on that.

Meanwhile, I hope noble Lords are content to commend the order to the House by approving this draft order.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2012

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 22nd November 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I thank the Minister for his presentation on the SI today and for ensuring that a copy of the Home Secretary’s letter was sent to me prior to the debate. As I made clear when we had a similar order previously, of course we support the Government on issues of national security and we work on the basis of cross-party co-operation. I am grateful to him for his explanation of how decisions are reached, which is helpful for the House. I appreciate that the process of obtaining evidence on which action can be taken is often complicated. This week, and during the Committee stage of the Justice and Security Bill, we have discussed how the Intelligence and Security Committee operates. One of the things that became clear is that evidence is obtained from a number of different sources and it is often only by putting it together like a form of jigsaw that the true picture can be obtained. That is a complex matter to address. The Home Secretary has to be satisfied on the basis of the accuracy of that information in deciding what action can be taken—and taken as quickly as possible, as the noble Lord, Lord Patten, pointed out.

As the Minister said, a group can be proscribed under Section 3 of the Terrorism Act 2000 if it,

“commits or participates … prepares for terrorism … promotes or encourages terrorism, or … is otherwise concerned”.

That illustrates why it is so important that information is accurate and up to date. My understanding, which was confirmed by the Minister’s comments, is that the Government are acting today against a group that was only indentified as a separate, independent entity earlier this year, in January 2012. I also commend the Government on their speedy action, given the processes that have to be gone through to reach this stage.

Obviously the Opposition do not have access to the same information or intelligence data as the Government, but we have seen some of the publicly available information and we are satisfied that the Home Secretary is justified in her judgment that Ansaru meets the criteria required under the Act and we support the Government in the Motion to proscribe this group. We are particularly concerned about the links, which the Minister confirmed, between Ansaru and the kidnap and murders of Christopher McManus and his Italian colleague Franco Lamolinara. The treatment of these two men was barbaric and despicable. It is quite right that the UK Government take action against any group which is prepared to commit such acts of terror against UK citizens.

From reports, it would appear that Ansaru is linked to, or is a breakaway group from, the long-established Boko Haram sect. That sect is not proscribed. I appreciate and understand that the Minister cannot always provide detailed information to your Lordships’ House, but will he ensure that the status of Boko Haram is kept under review? I appreciate that, so far, the actions of this group have been mainly confined to Nigeria. I hope that the Government will not hesitate to take action to proscribe Boko Haram if links to the UK, or any credible threats to UK citizens at home or aboard, were to emerge.

Finally, as I mentioned in similar debates, when the Prime Minister, David Cameron, was in opposition he repeatedly attacked the then Labour Government for not proscribing Hizb ut-Tahrir. The Minister has been very clear on this today—that any action to proscribe a group has to be taken on the evidence available. I know how complex and difficult it can be to get all that evidence and present it in an appropriate manner. The party opposite has now been in power for two and a half years and Hizb ut-Tahrir has still not been proscribed. I am not going to make the same points as were raised against us when we were in government. I thought at the time those comments were inappropriate and irresponsible, and it would be inappropriate and irresponsible of me to make similar ones now. All I ask for is an assurance that the Government are keeping the activities of Hizb ut-Tahrir under observation and review and that should there be evidence that this group should be proscribed, that matter will be presented to your Lordships’ House.

[Lord Taylor of Holbeach]

I thank the noble Baroness for her positive support of this measure. She will understand totally that the Government do not talk about other groups that they may be looking at. The Government keep a range of options open and have a global view of the terrorism threat. I hope that the noble Baroness will therefore understand why I do not go into any detail about any of the groups that she has specifically mentioned. However, I think that she can see by the way that the Government are acting in this case that we are undertaking our responsibility to try and maintain the security of our nation, of our citizens overseas and others as best as we can.

We are concerned about Hizb ut-Tahrir, and we will continue to monitor its activities very closely. Such groups are not free to spread hatred and incite violence as they please. The police have in any case comprehensive powers to take action under criminal law to deal with people who incite hatred, and will do so.

I welcome the contribution of my noble friend Lord Patten, who made a very important point. This is directed against terrorism, not against faith or beliefs. It is about the way in which people dispense with their humanity in the pursuit of objectives which we cannot tolerate. I hope that noble Lords will support this measure and I commend it to the House.

Justice and Security Bill [HL]

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 19th November 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, this has been an extremely interesting debate, as was the debate we had in Committee. I am at something of a disadvantage—or perhaps it is an advantage—as the Minister and I are the only speakers in this debate who have not been members or indeed esteemed chairs of the ISC. I think I heard the noble Lord, Lord King of Bridgwater, say, “Good”—I hope it is.

I support the amendments tabled by my noble friend Lord Campbell-Savours, and I will explain the reasons why. I join the noble Lord, Lord King of Bridgwater, in paying tribute to my noble friend Lord Campbell-Savours because the way that he has brought forward this argument today does the House a great service.

In Committee, many Members of your Lordships’ House, who have had a lifetime’s experience of these matters, proposed a number of different ideas for reform of the Intelligence and Security Committee, ranging from the designation of parliamentary privilege through to issues such as public hearings. What was striking in that debate—and is again today—was that there was an overwhelming consensus on all sides of the House that the Bill could be significantly bolder. It has been evident throughout the debate that there is some dissatisfaction with the Government’s approach. Your Lordships’ House does not feel that what is before it today adequately addresses some of the concerns raised in Committee.

We fully support the Government’s stated aim, which is, as the noble and learned Lord, Lord Wallace of Tankerness, said at Second Reading,

“improved parliamentary and independent oversight of the security and intelligence agencies”.—[Official Report, 19/6/12; col. 1661.]

What we have in Part 1 of the Bill, as illustrated by this and the next group of amendments, is a missed opportunity. In Committee, we discussed a range of different options for strengthening the independence of the ISC beyond what is proposed in the Bill. What emerged were two different blueprints for achieving pretty much the same aims and objectives. First, the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, two distinguished members of the committee, proposed an arrangement along the lines of existing parliamentary committees established by statute, such as the Ecclesiastical Committee, the Public Accounts Committee, the Speaker’s Committee for the Independent Parliamentary Standards Authority, and the House of Commons Commission. The committee as envisaged would have the independence and powers afforded by being a creature of Parliament rather than the Executive, but would retain the security of checks and balances provided for in statute. The second way forward, proposed by my noble friend Lord Campbell-Savours, seeks to establish the Intelligence and Security Committee as a fully fledged Select Committee of Parliament, having all the privileges attached to that arrangement, but with safeguards or restrictions provided through resolutions of Parliament rather than statute. I think my noble friend Lord Campbell-Savours used the phrase “hermetically sealed”.

However, both these blueprints are seeking to achieve the same end point. They are both seeking a concept of the ISC as a creature of Parliament rather than the Executive; independence that is recognised by the public but still guarantees the absolute security of sensitive information disclosed to the committee; and maintaining the good relations and trust that have been established with the agencies. It seems that the choice between the two concepts is one less of principle and more of practicality: which proposal will best achieve this end? My noble friend Lord Campbell-Savours and the noble Lord, Lord Butler of Brockwell, have both confirmed that they are seeking to achieve the same ends.

As my noble friend Lord Campbell-Savours has already stated, chief among the advantages gained by being a parliamentary Select Committee is parliamentary privilege. This would grant the ISC, among other things, protection of members and witnesses by parliamentary privilege, which encourages free disclosure within the secure confines of the committee; the power to take evidence under oath; and the power to hold witnesses in contempt for deliberately misleading the committee.

I have listened carefully to my noble friend’s arguments about the designation of parliamentary privilege, and in Committee we debated and supported amendments moved by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, to grant the ISC parliamentary privilege by amending the Bill of Rights. Indeed, I have attached my name to similar amendments in the next group, because I fully support the ISC obtaining parliamentary privilege. However, if, as my noble friend Lord Campbell-Savours, has compellingly argued today, there are serious problems with seeking to designate privilege in this way, it would appear that a Select Committee arrangement is the only option that would satisfactorily guarantee the committee these powers. The notion that privilege, if gained in the way that has been proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, may be struck down by the courts, which I am absolutely clear is not what they are seeking, is hugely concerning. If witnesses and members of the committee had given evidence to that committee under the assumption that they had immunity, only later to have that immunity revoked, it would have huge implications for the work of the committee. The absolute and total guarantee of parliamentary privilege is therefore a compelling reason to support the ISC’s move to full Select Committee status.

The question then rests on whether a Select Committee arrangement could be relied on to act in a way that absolutely guaranteed, without qualification, the protection of our national security. The Opposition would support the establishment of the ISC as a Select Committee only where such a guarantee could be satisfied. Under no circumstances should any change in the structure of the ISC result in sensitive information being disclosed that could put at risk our national security or the safety of intelligence sources or operations. Restrictions or safeguards on the committee’s powers could include a number of areas—we have heard of some of them today—and others that may be agreed by Parliament. For example, the Prime Minister could veto the publication of material by the committee for reasons of national security; proceedings of the committee could be closed to the public unless agreed by the Executive and/or provided for under its own terms of reference, such as annual public hearings of the heads of the agencies; there could be an executive prerogative to instruct the Leader of the House to dissolve the committee or to remove one of its members by a resolution of Parliament; or there could be a veto or agreement of a nomination to the committee. I use those just as examples— there will be others that I am sure will occur to your Lordships, particularly those who have been members of the ISC—but providing for such safeguards in legislation, as in the Bill before us, is perhaps the clearest way of ensuring that they are met.

In Committee, the noble Marquess, Lord Lothian, argued against a Select Committee structure on the basis that it would necessitate public evidence sessions. He rightly said that,

“there are many occasions when to attempt to take evidence in public would create an even less high regard for the committee that it maybe has at the moment, because questions would be answered by the agency heads with the words, ‘We cannot answer that question’”.—[Official Report, 9/7/12; col. 923.]

I completely agree with the noble Marquess on that point. In the majority of cases, the committee must sit in private. To do otherwise would not only damage the reputation of the committee, as I have said, but, most seriously, undermine its core function of effective oversight over the intelligence services. However, as has been argued by my noble friend, the mechanism by which Select Committee powers and terms of reference are constituted are sufficiently flexible conceivably to provide for any one of those concerns.

I understand from my noble friend Lord Campbell-Savours that he has it on the authority of clerks of both this House and the other place that Parliament may, either through the committee’s order of reference or by instruction, specify the terms under which the committee may sit, may take evidence and report, including requiring the consent of another body including the Government. Indeed, there are already known precedents for such restrictions. The Defence Select Committee already holds evidence sessions in private in order to hear classified and national security-sensitive information. For its recent report on maritime surveillance, published in September this year, it held part of its first evidence session in private. As my noble friend has indicated, there have been instances in the past where the House has resolved that a committee report to the Prime Minister and it may even be precluded from publishing certain material on the grounds of national security. Given those assurances, a Select Committee arrangement would both guarantee the ISC parliamentary privilege and ensure the necessary safeguards for our national security.

My understanding is that, if the House were today to pass my noble friend’s amendment and the Government accepted the will of your Lordships’ House, the Government could seek to withdraw Clauses 1 to 4 of the Bill in the Commons and then issue a statement that they would seek agreement through a resolution of the House to establish the ISC as a Select Committee of Parliament. If the Government and the Opposition were unable to reach agreement over the terms of such a resolution—including all the necessary safeguards that I have referred to and others—then presumably the ISC would continue under its present arrangements.

We have heard a compelling argument from my noble friend Lord Campbell-Savours that it is not possible to designate a body of parliamentary privilege such as the ISC simply by amending the Bill of Rights or by other statutory means. If this is indeed correct, it is undeniably a compelling reason for pursuing the Select Committee route rather than the statutory one. However, even if it were possible to do so, there is a further reason why we believe that the Select Committee should be the model that we aim for. That reason was expressed by the noble Lord, Lord Deben. I am sorry that he is not here today as his contribution in Committee was valuable. In Committee, the noble Lord, Lord Deben, was supported by the noble Lord, Lord King, and the noble Baroness, Lady Manningham-Buller, when he asked:

“Is it not better to use the strength of the Select Committee process and procedure and, above all, of public understanding rather than to try to create something special”?—[Official Report, 9/7/12; col. 926.]

This is more than just a cosmetic change. The parliamentary Select Committee structure is one widely recognised as being capable of serious and robust scrutiny. It is a concept that is familiar to the public and one that they understand as being independent. While I agree with the noble Lord, Lord King of Bridgwater, about public confidence in the committee I do not think that most of the public know of the existence of the ISC, whereas they are aware of the structure and work of Select Committees. Even if it were possible to guarantee the committee watertight parliamentary privilege, as I now seriously doubt, it would still ultimately be a hybrid committee. A halfway house would undeniably be better than what we have in the Bill but it would still be a peculiar body. If we are to go to all the effort of dressing up the ISC to look and sound like a parliamentary Select Committee, although with question marks over parliamentary privilege, why not simply have a Select Committee to do the job fully?

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I thank the noble Lord, Lord Campbell-Savours, for presenting his amendments in such a typically articulate way. He draws to our attention the challenge that faces us in achieving confidence—the word that was used by many noble Lords and spoken of by my noble friend Lord King of Bridgwater. In a nutshell, this is about the scrutiny of Parliament and the responsibility of government, and how those two can be reconciled. Although the noble Baroness, Lady Smith of Basildon, talked about not wishing to create a special committee, this is a special committee because it deals with matters that are self-evidently outside normal public scrutiny.

This group of amendments, which I thank the noble Lord, Lord Campbell-Savours, and others for bringing to the House, concern the status of the ISC and, although we have not talked about it much, the remit of the Intelligence Services Commissioner. As my noble friend Lord Henley previously noted, the Bill proposes a number of important changes to the ISC’s status. Members of the ISC would be appointed by Parliament, rather than as at present by the Prime Minister, and those members would be free to choose their own chair. The ISC is created by statute to ensure that there are safeguards in place to protect against the disclosure of sensitive information and therefore the Government do not consider it appropriate for the ISC to be a full Joint Committee established under the Standing Orders of each House, as other Joint Committees are. I hope that noble Lords will find it useful for me to expand on this reasoning.

It is essential that the ISC operates within a framework that protects the highly sensitive material to which it has access. In particular, the Government must be able to prevent the publication of sensitive material by the ISC. They must be able to withhold the most sensitive material from the committee—albeit that those powers are rarely used currently and can be expected to be rarely used in future—and must have some role in the appointment of members of the ISC. Without guarantees in those three areas, the risk of disclosure of information that might damage national security would be increased. That might, in turn, lead to a situation where agency heads found it hard to reconcile their statutory duties to protect information with their duty to facilitate oversight. That could therefore lead to the sharing of less sensitive information and a corresponding reduction in the effectiveness and credibility of oversight.

The Bill provides the necessary guarantees in each of those three areas. The Prime Minister would be able to require matters be excluded from the ISC’s reports if the matter would be prejudicial to the discharge of the functions of the agencies or the wider intelligence community. Ministers would be able to withhold information from the ISC in the limited circumstances provided for in paragraphs 3 and 4 of Schedule 1. A Member of this House or of another place would not be eligible to become a member of the ISC unless they had first been nominated for membership by the Prime Minister.

Although it may be possible to replicate those safeguards in Standing Orders of this House and another place, Standing Orders can be amended at any time, as noble Lords will know, and can be suspended for a specific period, or dispensed with for a specific purpose, by a Motion in the relevant House. Standing Orders do not therefore have the same permanence, or provide the same level of protection to sensitive information, as statutory provisions to the same effect.

It seems to me that we can divide the noble Lord’s amendments into two sets. Both are concerned with the same aim—that the new ISC should be a Select Committee—but they get there by different routes and with different consequences. It is not absolutely clear what the effect of the noble Lord’s first two amendments would be. If we were to accept them and the amendment that he proposes to Schedule 2, the ISC would still be created by statute in the Bill and safeguards would still exist to protect national security in the three areas that I have listed. My noble friend Lord King of Bridgwater drew attention to the inconsistency of the amendments, but we accept the noble Lord’s wish to draw the issue to the attention of the House in the way that he has by tabling Amendment 1.

The noble Lord’s amendment would not create a full Joint Committee, because that can be done only by the Standing Orders of each House. It would create an entirely novel body—a Select Committee established by statute. To what extent would such a body share the characteristics of other Select Committees? The Bill makes clear, even were it amended in other respects according to the noble Lord’s wishes, that the ISC is quite different from other Select Committees in fundamental respects—for instance, in relation to appointments and reporting. That being so, it is unclear whether or to what extent changing the ISC in this way would give it the other characteristics of a Select Committee. Indeed, the risk is that describing the ISC as a Select Committee when it has characteristics that are not shared by such committees could mislead as to the ISC’s true character. For these reasons, I hope that the noble Lord will see fit to withdraw his amendment and that the noble Baroness, Lady Smith of Basildon, will reconsider her position on it.

The noble Lord’s next four amendments would, together, remove the first four clauses, which deal with the ISC. It is to be assumed that the noble Lord’s intention with those amendments is that a new ISC should be created solely by the Standing Orders of each House. Indeed, the noble Lord said so in his speech introducing his amendment. I have already listed the vital safeguards relating to appointments, reporting and provision of information contained in the Bill. Without these safeguards, we will increase the risk of unauthorised disclosure of the sensitive information to which the committee has access. As I have already said, Standing Orders cannot adequately replicate the safeguards against disclosure of information that might damage national security contained in the Bill. It is only by enshrining these safeguards in statute that we can ensure that they are sufficiently robust and enduring.

--- Later in debate ---

[Baroness Smith of Basildon]

I do not know whether that is better or worse. It is disappointing that the Government have not been able to reach a conclusion, given the overwhelming desire on all sides of the House to get this right and to ensure that the committee has the privilege that it will need to do its job properly. I remain concerned about the process that is being used. I wait with interest to hear what the noble Lord will say about the consequences of pursuing parliamentary privilege in this way. Without assurances that the committee will have full privilege, I will have serious reservations about the viability of the proposed amendments, despite the fact that I fully support the aims behind them.

[Lord Taylor of Holbeach]

My Lords, I was tempted to make a relatively short summary for this debate, but the amendments tabled by the noble Lord, Lord Butler, give me the chance to elaborate on certain matters to which other noble Lords alluded. As we know, the proposal of the Government in the Bill is to change the ISC’s status. It will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The two amendments in this group concern the status of the ISC. The first would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. The Government’s intention is that the ISC will be a committee of Parliament created by statute. It will not be a classic Select Committee that covers departmental bodies, but a statutory committee of Parliament.

The Government are in principle supportive of the amendments tabled by the noble Lord, Lord Butler, to change the name of the committee to the Intelligence and Security Committee of Parliament. While we are not in a position to support the amendment at this stage, we will be in a position to do so later. I hope that in what I say I will give the House reassurance that the time since July has not been totally wasted, and that the Government are quite a long way down the road of sorting out the particular issues to which noble Lords quite rightly drew the attention of the House. If the ISC becomes a committee of Parliament, it may even be necessary to make some consequential amendments. The amendment may bring the ISC within the ambit of the Freedom of Information Act 2000 by making it a part of the House of Commons and the House of Lords for the purposes of the Act, which was alluded to by the noble Lord, Lord Campbell-Savours. It may change the ISC’s status under the Data Protection Act 1998, as Section 63A of that Act may become relevant, making the corporate officers of the House of Commons and the House of Lords the relevant data controllers for the ISC’s data-processing activities.

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[Baroness Smith of Basildon]

My Lords, my name and that of my noble friend Lord Rosser have been added to this amendment, as was the case in Committee. We argued then, and argue again now on Report, for the establishment of the ISC along lines similar to that of a Select Committee, and indeed preferably the same lines. It would therefore be inconsistent not to argue that the chair of this committee should be remunerated in much the same way as the chair of a Select Committee. The work that is undertaken is enormously serious and therefore the role should be recognised and fairly compensated on par with that of a chair of a Select Committee.

We have just heard comments about whether IPSA is the appropriate body for this role, and in Committee it was the Minister who said that it was. I have been involved in politics both in your Lordships’ House and in the other place for a good many years and I still enjoy irony, which is much underused in politics, so I find the argument of the Government rather ironic given the debate over Select Committee status which has underscored the difference between this committee and a committee of Parliament. Perhaps the Minister can change the Government’s position and we will accept the amendment.

The details of the committee’s arrangements are to be established in statute, but when it comes to discussing remuneration, it will be for IPSA to decide. It really does not seem appropriate for that body to do so, and the Government cannot have it both ways. If the ISC is to remain a body provided for in statute and ultimately accountable to the Executive, which is the case in this Bill, then regardless of any closer ties to Parliament it remains a creature of the Executive. It therefore seems completely illogical for IPSA to be the body which decides on the remuneration of the committee’s chair. I support the amendment. If the Government think that IPSA is the way forward, they have got it wrong, and I hope that the Minister will be able to accept the amendment.

[Lord Taylor of Holbeach]

My Lords, we turn now to the remuneration of the ISC chairmanship. I have to say that the loyalty which members of that committee have shown to the chairmen and the work they undertake reflects the commitment that those who have held that office have demonstrated to the security services. I note the widespread view that this position should be properly remunerated in some way or another, and the Government support that view. There is no real consistency in the way that Select Committees are treated and no absolute rule that all Select Committee chairmen will be paid. In the Commons at present, not all Select Committee chairman receive a salary for those functions. In the Lords, there is only one such salaried chair, the chairman of the EU Select Committee, who is paid a salary—not by virtue of holding that position but by virtue of also being the Principal Deputy Chairman of Committees.

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[Baroness Smith of Basildon]

My Lords, we have had an interesting debate, and Amendments 9 and 11, in my name and that of my noble friend Lord Rosser, seem to have gained a significant degree of support from around your Lordships’ House. In response to the concern of the noble Lord, Lord King, about the televising of proceedings, I suspect that if this debate were being televised at 4.30 am it would not get a great deal of viewership. Having said that, we will probably now receive letters from those who watch TV at 4.30 am.

Amendment 9 would provide the committee with a remit to hold pre-appointment hearings for the heads of agencies. The noble Baroness, Lady Hamwee, spotted my tabling of her amendment from Committee, when she convinced me that having a permissive amendment was a good way forward. She has now tabled a further amendment that would make the proposed hearings compulsory, but I do not think that that has found favour with your Lordships. We are very much in favour of pre-appointment hearings by Select Committees; indeed, the Labour Government in 2007 pioneered them. This Government have suggested that they are equally keen on pre-appointment hearings. The coalition agreement contains a specific plan to strengthen the powers of Select Committees to scrutinise major public appointments as part of improving government transparency. This seems to be one of those areas that would benefit from such hearings.

I take on board the wisdom, as usual, of the noble Lord, Lord Reid, on these matters and the concerns he raised. However, as to what he said about there being a veto on information, the committee would use its customary wisdom in passing on advice or information to the Prime Minister as it saw fit.

As regards Amendment 11 on annual public hearings, I must admit that I had not envisaged many separate hearings but perhaps one or two hearings a year at which heads of agencies could be questioned. There is an issue of public confidence, and the noble Baroness, Lady Manningham-Buller did a huge amount during her time as head of MI6 to open up the so-called secret services and increase public understanding of and trust in what the agency and other agencies do. She, more than anyone, understood how important it was that the public needs to have confidence in those at the head of organisations that have to, by necessity, operate outside the public view.

I also do not disagree with those who said in Committee or in this debate that the credibility of the ISC would be undermined by farcical staged hearings, as we have seen on TV elsewhere when the only answer to questions has been, “I’m sorry I can’t answer that or provide that information”. Obviously, we would want any hearings to be genuine, give confidence to the public and not have a block that would provide a lack of confidence.

As has been pointed out in Committee, the ISC already has the power to sit in public if it so chooses. Amendment 12, which proposes that there be a presumption that the ISC would meet in public unless it were to meet in private, could create the kind of difficulties that have already been outlined. A presumption that the ISC would meet in public would be difficult for that committee to manage, but hearings taking place in public from time to time are useful and have a large part to play. We have to recognise the sensitive nature of the committee’s work and information that cannot be made public.

When considering the amendments and the support for them, I hope that the Minister will accept Amendment 9. He has heard that it has significant support from around the House. If he is unable to accept that amendment, I will consider testing the view of the House.

[Lord Taylor of Holbeach]

My Lords, we have an opportunity to consider this group of five amendments. Although Amendments 9 and 10 are similar, the noble Baroness has pointed out the difference between them. Under Amendment 9, the ISC “may” consider the proposed appointment of individuals to the posts of director-general of the Security Service, the chief of the Secret Intelligence Service, the director of GCHQ and other such persons as the Prime Minister may direct. The committee would do this by questioning the prospective appointee at one of its meetings. Under Amendment 10, the ISC “must” consider the proposed appointments.

Pre-appointment hearings are a relatively new phenomenon in the United Kingdom. Since 2008, Select Committees have conducted pre-appointment hearings for a list of posts. There is guidance published by the Cabinet Office on the process followed for such pre-appointment hearings, which includes the list of posts. In general, this process has been a welcome development and gives departmental Select Committees a role in questioning proposed appointees. However, the important thing to note about the list of pre-appointment posts is that the posts concern public bodies—for example, the chairs of Ofcom and the Social Security Advisory Committee. The pre-appointments process has never been used concerning the appointment of civil servants. The heads of the intelligence and security agencies are civil servants at Permanent-Secretary level, and the recruitment process is therefore expected to follow the process for the appointment of civil servants of such seniority.

Noble Lords may find it helpful if I provide some detail on the present process for appointing the agency heads and their status. The agencies are excluded from the provisions of Part 1 of the Constitutional Reform and Governance Act 2010, as my noble friend Lady Hamwee mentioned. That legislation places the management of most of the Civil Service of the state on a statutory footing. Exclusion from the provisions of that Act merely reflects the specific nature of the agencies’ operations. The agencies’ staff, including their heads, are and always have been part of the Civil Service of the state. This is clear from the Act. If it were not so, the specific exemption for the agencies in Section 1(2) of that Act would not be necessary. Staff of the agencies are not, however, part of what is generally referred to as “the Civil Service”, with a capital C and a capital S—that is, the Home Civil Service—nor are they part of Her Majesty’s Diplomatic Service. They form a separate category of civil servants, but civil servants they are. They are also “Crown servants”, but that is a wider term, covering, for example, members of Her Majesty’s Armed Forces and non-civilians in the service of the Crown.

While the agencies are not bound by the Civil Service recruitment principles, I can reassure noble Lords that they do, in practice, follow the spirit of the principles, and the Civil Service Commission is expected to be involved in the process. Pre-appointment scrutiny by Parliament is not appropriate given that these roles are Permanent-Secretary level roles, and in practice those who fill them will be recruited by a process involving a Civil Service commissioner to ensure that the appointment is made on merit. In particular, I see no reason why agency heads should be treated differently from any other Permanent Secretary appointment.

Certainly, the roles that the agency heads play are very important and the appointments must be the right ones, but all Permanent Secretaries in the UK Government play very important roles. There is thus no reason for singling out this particular group for special treatment. The fact that all these posts are posts within the Civil Service of the state, serving successive Administrations, means that the pre-appointment process is not appropriate.

I hope I have given the noble Lord and the noble Baroness reassurance that the process which presently exists—

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[Lord Taylor of Holbeach]

My Lords, it may be useful if I start by explaining why paragraph 3(3)(b) of Schedule 1 is necessary. There are a number of long-standing conventions that have developed in the relationship between Parliament—in the form of its Select Committees—and successive Governments. These conventions recognise that there are categories of information that in certain circumstances may be withheld from Select Committees on grounds of public policy. Noble Lords may know a good deal about this. Examples of this type of information are given in the Cabinet Office guide, Departmental Evidence and Response to Select Committees. Some noble Lords will know this by another name: the Osmotherly rules. The categories of information set out in the guide include information about matters that are sub judice, information that could be supplied only after carrying out substantial research or research that would incur excessive costs, and papers of a previous Administration.

The provision in the Bill is necessary to safeguard the long-standing conventions that are reflected in the Osmotherly rules in the context of the relationship between government and the ISC. It provides a basis for withholding from the ISC the sorts of categories of information described in the rules. As I explained, we intend the ISC created by the Bill to be a committee of Parliament and not simply a committee of parliamentarians, so there is all the more reason for the ISC that the Bill would create to be subject to these conventions.

The provision gives only a Minister of the Crown the discretion to withhold material. In exercising that discretion, the Minister would of course have regard to the provision that the ISC has for keeping material confidential. The Osmotherley rules state:

“If the problem lies with disclosing information in open evidence sessions or in memoranda submitted for publication, Departments will wish to consider whether the information requested could be provided on a confidential basis”.

For this reason, we would expect these powers to be used sparingly and only in exceptional circumstances. As I said, the powers to withhold information from the ISC have been used only sparingly in the past, and we expect this to continue. However, it is important that the safeguards are retained.

In Committee, the debate focused in particular on the word “proper”. The noble Lord, Lord Thomas of Gresford, who is not in his place, queried the use and meaning of the word. In addition, the noble Baroness, Lady Smith of Basildon, was concerned that paragraph 3(3)(b) lowered the threshold for information being withheld from the committee compared with that which currently applies under the Intelligence Services Act. I assure the noble Baroness that that is not the case. The Intelligence Services Act contains a provision equivalent to paragraph 3(3)(b). In fact, the categories of information that can be withheld from the ISC, and the thresholds for withholding information, will be the same under the Bill’s provisions as they are currently under the 1994 Act.

The noble Lord withdrew his amendment. I hope that Amendment 14 clarifies the situation and addresses his anxieties in this respect. I beg to move.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for seeking to clarify the matter. As he said, I raised my concern on this in Committee. Perhaps I may ask one question. If he is unable to answer today, perhaps he would write to me. I am not 100% convinced that Amendment 14 is sufficient to prevent paragraph 3(3)(b) being used as a justification, as the Minister claimed. Amendment 14 stipulates merely that the Minister “must have regard to” the Osmotherly guidance, as set out in sub-paragraph (3)(b). Will the Minister tell us whether, after considering the guidance he referred to, the Government could still use the conditions set out in sub-paragraph (3)(b) to refuse disclosure of information to the ISC even if the guidance was not relevant to the material in question?

[Lord Taylor of Holbeach]

I am not in a position to answer that directly, but if the noble Baroness permits, I will write to her and place a copy of the letter in the Library of the House.

Justice and Security Bill [HL]

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 19th November 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, we have tabled Amendment 22, which replicates the one tabled in Committee by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Thomas of Gresford, and is very similar to one tabled by my noble friend Lord Campbell-Savours.

This amendment requires a memorandum of understanding that will further define the remit of the ISC and other elements of its functioning. We consider that this should be approved by Parliament. Throughout the debate we have been arguing for greater ties between the ISC and Parliament in order to underline its accountability to Parliament rather than the Executive. This is an important example of how we can assist in effecting such change.

If the ISC is ultimately accountable to Parliament, it seems right that Parliament should approve the MoU that governs the ISC’s relationship with the Government over and above that which is set out in the Bill. I am sure that we will replicate this debate next week in the Crime and Courts Bill about the framework document for the National Crime Agency. If something is outside the remit of what is in the legislation, it is very helpful to have sight of that and Parliament should have the opportunity to debate and approve it.

The Government have argued against the establishment of the ISC as a full Select Committee of Parliament. One of the arguments is that it is necessary to circumscribe in statute the rules under which the committee may operate. It seems justified and very reasonable that the MoU should be subject to greater scrutiny and formalisation by coming before the House and having formal parliamentary scrutiny and approval before it can be acted upon.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, legislation is often a process of distillation and this evening the House has distilled itself down to this particularly rich mixture.

The Government intend to use the memorandum of understanding to make a substantial contribution to central government’s intelligence and security activities. It will be subject to ISC oversight. It is our intention that the activities should include certain activities within the Ministry of Defence, the Office for Security and Counter-Terrorism in the Home Office and the central government intelligence machinery in the Cabinet Office, including the Joint Intelligence Organisation. The scope of the memorandum, therefore, is wider than the three core agencies.

As my noble friend Lord Henley said in response to an amendment from the Opposition on this same subject in Committee, it is right that the memorandum of understanding should spell out the precise remit of the ISC in relation to bodies other than the agencies, because the memorandum of understanding can make provision at a level of detail which is not appropriate in primary legislation. This is particularly important because parts of government departments engaged in intelligence and security activities may be engaged in other activities which would not properly fall within the remit of the ISC.

The House will know that things change over time—departments reorganise. Functions done in one department one year may be done in another the following year. The intelligence world is no different from any other part of government. A memorandum of understanding is flexible. It can be changed much more easily than primary legislation. It will enable the intention of the Government to be realised now and in the future.

The effect of the amendment spoken to by my noble friend Lady Hamwee would be that, instead of the ISC’s widened remit beyond the three agencies being defined precisely in a memorandum of understanding, it would be defined in primary legislation, which is not in the interests of a good definition of the ISC’s role and is less flexible as I have said.

The Government’s intention is that the memorandum of understanding will enable the ISC to oversee certain activities; for example, within the Ministry of Defence as I have described. A memorandum of understanding is the best place to make provision at this level of detail.

The effect of Amendment 22, as proposed by the noble Baroness, Lady Smith, would be that a memorandum of understanding agreed between the Prime Minister and the ISC for the purposes of Clause 2 would need to be approved by a resolution of each House of Parliament before it could take effect. The memorandum of understanding is an important document. It will define the activities of government in relation to intelligence or security matters, other than the activities of the agencies, which the ISC may oversee. It will also specify additional principles and provisions, other than the criteria specified in the Bill, with which the ISC’s consideration of operational matters must be consistent. It will also specify the arrangements by which the agencies and other government departments make information available to the ISC.

The Bill also provides that the memorandum of understanding may include other provisions about the ISC or its functions. It must be agreed between the Prime Minister and the ISC and can be altered or replaced at any time by agreement. It is therefore different from a parliamentary document.

While the ISC is dissolved on Dissolution of Parliament, the memorandum of understanding will continue in place during a succession of government until a new memorandum of understanding is agreed with the Prime Minister.

As is usual with a memorandum of understanding, there is no parliamentary approval procedure. While the memorandum of understanding will be an unclassified document which is published and laid before Parliament, its precise terms are very likely to be shaped by matters which are sensitive in terms of national security and cannot therefore be made public. However, there is no restriction on the document laid before Parliament being debated in Parliament, and, indeed, one might expect on occasions for it to be so debated. Of course, the terms of the memorandum of understanding must be agreed with the ISC itself: a committee composed of parliamentarians that, as a result of the changes that we have been talking about, will be a committee of Parliament appointed by and accountable to Parliament. Requiring these parliamentarians to seek the approval of their parliamentary colleagues would be quite a restriction on the independence of that body.

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[Baroness Smith of Basildon]

My Lords, since we are considering the last group of the evening, I confess to being envious of the noble Lord, Lord Butler. I have been in your Lordships’ House a relatively short time in comparison with him, but I have never had an amendment signed by both the Official Opposition and the Government. I congratulate him on that achievement.

There is not very much that I can say on this amendment that will not be said even better by others. However, I will say something regarding our Amendment 27. This is a revised version of an amendment which I tabled in Committee. This amendment would amend the grounds on which the Prime Minister may exclude matters from the annual reports. These are currently broadly defined in the Bill as that which the Prime Minister considers,

“would be prejudicial to the continued discharge of the functions of the Security Service”.

It goes on in that vein. We have argued that the primary reason for the Prime Minister to request the redaction of material contained within the annual report should be on the basis of national security, or that it risks a disclosure of sensitive information as defined in the Bill. Again, we have reservations that the reason given in Clause 3(4) is a bit of a catch-all provision which allows the Prime Minister to prohibit the publication of material perhaps considered too critical and which may damage the reputation of government agencies.

Of course, we acknowledge that there may be circumstances in which the Government will need to prevent the publication of material. That may not be only on the basis of national security or the sensitivity of information. It could also be where the information might threaten the UK’s economic interests. However, it would be better to make such additional criteria transparent and accountable, in order to prevent any misrepresentation of the role of the Intelligence and Security Committee. Amendment 27 allows the Prime Minister to prohibit publication on grounds in addition to national security and the sensitivity of information, along the lines defined in the Bill, but also requires that the scope of the information must be set out in the MoU with the Intelligence and Security Committee. It is a moderate and reasonable amendment and I hope that the Minister will give it his consideration.

[Lord Taylor of Holbeach]

My Lords, I am delighted that the noble Lord, Lord Butler of Brockwell, moved his amendment. It received support from around the House and I am pleased to say that the Government are in a position to accept it. In Committee, the noble Lord, Lord Butler, and my noble friend Lord Lothian made the important point that the committee should be independent. I agree wholeheartedly. It will submit its report, not a draft of its report, to the Prime Minister, who may insist on redactions to the document but may not insist on any other changes. Again, I agree with this, so we are happy to accept the amendment.

Amendment 27 would have the effect of changing the grounds on which the Prime Minister might exclude any matter from a report to Parliament. It would add to the grounds for exclusion already described so that material might be excluded if it were of such a nature that it would be prejudicial to the continued discharge of the functions of the security service, the Secret Intelligence Service, the Government Communications Headquarters or any person carrying out activities that fall within Section 2(2); if it were sensitive information as defined in paragraph 4 of Schedule 1; or if it were information that, in the interests of national security, should not be disclosed. For convenience, I will refer to the three possible grounds for excluding material as the prejudice to functions ground, the sensitive information ground and the national security ground. The amendment would also require that matters considered to fall under the prejudice to functions ground—currently the only ground for excluding information from the Bill—should be set out in a memorandum of understanding.

The ISC must be able to report candidly to the Prime Minister on sensitive matters. Inevitably, it will not always be possible to publish the full content of its reports because of the nature of the material contained in them. I do not think that there is any dissent in the House from that position. It follows that there must be an ability to redact information before ISC reports are published or laid before Parliament. In Committee, and amendment was tabled by the noble Baroness, Lady Smith—to which she referred—which would have made the criteria for excluding material from the published report just the grounds of sensitive information and national security. The noble Lord, Lord Rosser, who is not in this place, explained that it was a probing amendment to try to find out why it was necessary to use the definition that was in the Bill rather than that in the amendment, which presented grounds similar to those in Schedule 1 for withholding information from the ISC. In the case of withholding material from the ISC, both grounds had to be fulfilled, whereas for these purposes material could be excluded from a report if either ground were fulfilled.

The sensitivity of information and national security grounds add nothing in substance. Material that falls within those grounds will necessarily also fall within the prejudice to functions grounds—unless in the case of sensitive information that is so historical or so widely known publicly that it is no longer sensitive, in which case there would be no real justification for excluding it from an ISC report to Parliament anyway.

Police and Crime Commissioners

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Monday 5th November 2012 Lords Chamber

[Lord Taylor of Holbeach]

That is very good news for the candidate in my noble friend’s constituency.

[Baroness Smith of Basildon]

My Lords, for a moment when the noble Lord referred to late legislation, I thought that the Electoral Registration and Administration Bill was being withdrawn to have new legislation on this but unfortunately he has not agreed with us on that point. Perhaps I may ask two questions. First, is he satisfied that the level of public awareness of and interest in these elections is adequate at this stage? Secondly, he will have seen the reports of shockingly low police morale. Does he think that this flagship policy on police from the Government has improved police morale, made it worse or made no difference?

[Lord Taylor of Holbeach]

My answer to the second part of that question is that I am certain that it will have done. It has focused public attention on the police as an institution in a way that has not existed before. It has made it quite clear that the services of those who work in the police service are valued. Indeed, people will be voting for the police and crime commissioner who will be responsible for the governance of police in local areas. I am sorry but I have forgotten the first part of the noble Baroness’s question. Perhaps she would not mind repeating it.

[Baroness Smith of Basildon]

I asked whether the Minister was satisfied with the level of public awareness of and interest in these elections.

[Lord Taylor of Holbeach]

I think that I have given that answer already. The poll conducted showed that 85% of the people who were eligible to vote in these elections were aware that they were taking place. I am satisfied. It is up to those of us engaged in democracy to get involved with making sure that these elections return good candidates to do the task that is set before them. It is an important job and it will make a lot of difference to policing in this country.

Police and Crime Commissioners: Elections

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Thursday 11th October 2012 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what assessment they have made of the likely turnout in the elections for police and crime commissioners.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the election of police and crime commissioners will be one of the most significant democratic reforms of policing in our lifetime. We want and encourage everyone to have their say and we are confident that come 15 November the public will not only be aware of the elections but will have the information that they need to make their choices.

[Baroness Smith of Basildon]

My Lords, I welcome the noble Lord, Lord Taylor, to his new role at the Dispatch Box and look forward to many long and interesting discussions with him. However, I found his Answer somewhat disappointing. The Reform Society fears an 18.5% turnout for these elections. That is not surprising, given that the elections will be held in November when it is cold, wet and dark, and that the candidate information has been made available online instead of in the normal leaflets for every household, as in similar elections. May I press the noble Lord on this point and ask him what level of turnout he would accept as evidence that the Government have respect for the police and the candidates and that this is a serious policy and not something dreamt up on the back of an envelope?

Localism Bill

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 12th July 2011 Lords Chamber

[Lord Taylor of Holbeach]

I share the concern of those wishing to be ambitious in meeting the challenges of climate change. I also agree that planning has a big part to play. We have underlined this in the carbon plan, our response to the Environmental Audit Committee’s report on adaptation and—as the noble Baroness, Lady Smith, will know—the renewable energy road map published today. The national planning policy framework, which we will publish very shortly for consultation, will make tackling climate change a priority for planning.

We already have a climate change duty on plan-making which was introduced by the previous Government. That duty seemed to them to be sensible and I agree—let me explain why. The current, existing duty expects a local council’s development plan documents, taken as a whole as their local plan, to include policies designed to contribute to mitigating and adapting to climate change. Neighbourhood development plans will need to be in general conformity with the strategic policies in local plans, including policies on climate change. The national planning policy framework will be clear on planning’s important role in rising to the climate change challenge. On the point of the noble Lord, Lord Berkeley, the NPPF will be clear on the need to cut carbon emissions and properly adapt to the impacts of climate change, including flooding.

Local planning authorities must have regard to national policy in preparing their development plan documents, as well as in determining planning applications. Neighbourhood development plans will need to be appropriate, having regard to this national policy. The current duty is a sensible approach—I hope that the noble and learned Lord, Lord Boyd of Duncansby, will accept that. It reflects that places are different and will be able to make different contributions to tackling climate change. It also recognises that not every development plan document, as a component of the local plan, can make the same contribution. One of the anxieties I have about these amendments, for example, is how every local planning authority would ensure that development in their area achieves reductions of greenhouse gas emissions in line with the national carbon budgets. Places are very different. Some are able to make big contributions, others less so however hard they try. For instance, some have natural energy resources, be it geothermal or wind in more exposed rural areas, that other areas just do not have.

While I understand the direction of travel intended by the two amendments in this group, I do not believe it will help get us to where we want to be in a trouble-free way. For that reason, I cannot support these amendments. I reassure the noble Baroness, Lady Smith, that the combination of the existing duty and planning policy within the framework provided by the Planning and Compulsory Purchase Act 2004 makes this amendment unnecessary and I hope she will feel able to withdraw it, because I do not think there is any disagreement between us on the objectives we are seeking to achieve. It is just whether these amendments achieve that objective.

[Baroness Smith of Basildon]

I am grateful to the noble Lord and, if I understand him correctly, he is saying the amendments are unnecessary because such provisions are already included. I suppose I had hoped that the temptation of joined-up government would have been irresistible and he would have wanted to accept these amendments to the Bill to make it absolutely clear that this is a thread that runs through all government policies.

I will take away and listen to what he has said. I am not for one minute suggesting that in every case the same contribution should be made to neighbourhood plans, but there should be some consideration of these issues at every level of the planning stage. I am grateful for his explanation. There is not much between us in terms of what we are seeking to do but I will look at that and be happy to withdraw my amendment at this stage.

Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011

Debate between Baroness Smith of Basildon and Lord Taylor of Holbeach

Tuesday 17th May 2011 Grand Committee

[Lord Taylor of Holbeach]

My Lords, these regulations have already been debated in the other place and were fully supported by the Opposition. I hope that noble Lords will reach the same consensus today.

The regulations will extend the EU emissions trading system, the EU ETS, to include nitrous oxide emissions in the UK as soon as possible this year. Currently the EU ETS focuses primarily on tackling carbon dioxide emissions through the use of a cap-and-trade mechanism. This puts a price on greenhouse gas emissions in order to incentivise the most cost-effective emission reductions. By extending the coverage of the EU ETS to include nitrous oxide, we will be providing incentives to reduce an extremely potent greenhouse gas with a global warming potential 310 times that of carbon dioxide.

The production of nitric acid during industrial processes to make fertiliser is a major source of nitrous oxide emissions. Within the UK there is significant potential within the nitric acid production sector for dramatic reductions of nitrous oxide. For this potential to be realised, however, business requires the incentive that a carbon price can provide.

The regulations will use a provision in the ETS directive that enables member states to opt-in additional greenhouse gases and sectors. While all member states will include nitrous oxide emissions from nitric acid production in the EU ETS in its third phase, starting in 2013, there are strong environmental and business incentives for the UK to move early.

The regulations will apply in practice only to the UK’s largest fertiliser manufacturer, GrowHow UK Ltd. GrowHow is already investing £10.5 million in nitrous oxide abatement technology. This early investment in green technology is being incentivised by the UK’s early opt-in of nitrous oxide emissions into the EU ETS. By opting-in nitrous oxide emissions two years ahead of the rest of Europe, the UK will save the equivalent of around 1.6 megatonnes of carbon dioxide over 2011 and 2012. This will also provide increased certainty for the UK in meeting its national carbon budgets. As we are using trading allowances for the opt-in previously allocated to closed installations, we are not increasing the overall EU ETS emissions cap and can maintain the environmental integrity of the system.

The instalment of cutting-edge abatement technology by GrowHow will protect up to 80 full-time jobs within the nitric acid production sector. These are important steps in building a low-carbon modern manufacturing sector within the UK and will improve the competiveness of UK industry.

I am particularly pleased to inform noble Lords that these benefits can be achieved without imposing a significant burden on industry. This is particularly the case as GrowHow is already covered by the EU ETS, so minimal additional administrative work will be required. We have consulted closely and constructively with GrowHow on getting the details of this opt-in right, and it has been fully supportive of our proposals. We have further minimised the cost impact for the UK by setting the same benchmarks for emission reductions as those set by Austria and the Netherlands. These are the other member states that have also opted-in their nitrous oxide emissions into phase 2 of the EU ETS.

In summary, this policy has clear benefits in reducing emissions of a potent greenhouse gas and protecting jobs in British manufacturing, and is stimulating early investment in low-carbon technologies in the UK. I commend the regulations to the Committee.

[Baroness Smith of Basildon]

My Lords, first I thank the Minister for the detail that he has provided on the regulations before us, and for outlining the considerable benefits of reducing nitrous oxide emissions. Along with our colleagues in the Commons, we support the regulations. We know that the emissions are highly potent and that, as he indicated, the global warming potential is more than 300 times greater than that of carbon dioxide. Clearly there will be great benefit from accepting the proposals.

We also know that reducing nitrous oxide emissions alongside carbon dioxide emissions by extending the EU ETS will become mandatory in the EU in 2013. As the Minister indicated, we are not the first country to seek early implementation to include nitrous oxide emissions. The Minister said that the Netherlands and Austria had taken action. I understand that Norway, too, has taken action, perhaps more recently. The regulations before us should provide incentives for early reduction, as well as lower long-term costs for the company involved.

I have a few questions which I was able to notify the Minister of, and which I hope he will answer. We share his optimism that the regulations will reduce emissions, and, we hope, much more quickly. It would be helpful if he described briefly the monitoring procedures that will be in place or are in place already. The Minister was very helpful in outlining the consultation with GrowHow UK Ltd, which is directly affected. Was there any consultation with anyone else, and were there any other responses to the consultation?

In conclusion, I will briefly ask the Minister about trading security. I am sure that he is aware of the cyberattacks earlier this year on European trading registers. The Government are confident of the security of the UK trading register, but are they confident that other countries have now achieved the same level of security, or will be able quickly to achieve that level of security? It would be helpful to know what discussions the Government have had to date with other European countries on the issue. In February the Government issued a Written Statement that stated:

“While it is important to ensure a minimum level of security now to ensure the opening of the registries, the UK will continue to press the European commission to ensure that registry security across Europe is raised above this level”.—[Official Report, Commons, 3/2/11; col. 50WS.]

It would be helpful to know what progress has been made since then. The Minister will understand that we have concerns about market confidence, and any reassurance that he can give about progress on European-wide security issues would be welcome.

I entirely concur with the Minister that there are economic benefits to these regulations. They make environmental sense and they have our support.