Police, Crime, Sentencing and Courts Bill

Baroness Whitaker Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Sharpe of Epsom (Con)]

He is here—my apologies. In light of all I have said, I hope the House would agree that we have responded positively to the relevant recommendations from the DPRRC and will support these amendments. I beg to move.

[Baroness Whitaker (Lab)]

My Lords, I speak on behalf of my noble friend Lady Lister, who had to go to catch her train because of the postponements, and also on my own behalf.

We wanted to raise a point on government Amendment 56, which, as the Minister said, requires guidance for the police on unauthorised encampments to be laid before Parliament. This is of course welcome, but my noble friend says that she wanted to return to the current draft guidance statement that the police, alongside other public bodies,

“should not gold-plate human rights and equalities legislation”

when considering welfare issues.

When she pressed the noble Baroness, Lady Williams, on this in Committee and asked her what it meant—because, on the face of it, it appears to be an invitation to put human rights and equalities considerations to one side—I believe the noble Baroness, Lady Williams, said that the phrase was “novel” to her and she wrote to my noble friend Lady Lister about it.

In her letter, she explained that this phrase had been used in government guidance on unauthorised encampments since March 2015. But, when my noble friend Lady Lister followed the link in the letter to this guidance, it turned out to be called:

“A summary of available powers”—


which we do not think quite amounts to statutory guidance, and therefore perhaps was not subject to consultation at the time. Certainly, members of the Joint Committee on Human Rights were not aware of it, because they wrote a very forceful letter to the Minister on 17 November in which they

“strongly advise that the Government reviews the language and tone of its draft guidance with respect to its human rights obligations. Human rights are a minimum standard, which apply to all people equally. We do not and cannot ‘gold-plate’ human rights.”

Likewise, the British Association of Social Workers has written:

“We do not accept that this”—


gold-plating—

“is reasonable guidance. The wording is of no assistance to social workers or other professionals.”

It sees it as a

“disturbing attempt to water down fundamental human rights in relation to Romani and Traveller people”.

In her letter, the Minister wrote of the

“necessary balancing of the interests and rights of both Travellers and settled residents”.

But we ask her—or the appropriate ministerial colleagues —to look again at this wording in the light of the JCHR’s and the British Association of Social Workers’ responses. It would appear that they were not consulted when the “gold-plating” phrase was originally used in 2015 and I ask now whether anyone was consulted.

Also, does the 2015 document constitute statutory guidance as such? If the answer is no in either case, that strengthens the case for reconsidering the use of the term. As the body established by Parliament to provide an oversight of human rights issues makes clear, human rights

“must not be side-lined or undermined for administrative convenience”.

Will the Minister therefore give an undertaking to look again at this, ask the relevant Minister to do so, and report back to us before the Bill completes its passage through this House?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I thank all noble Lords who have participated in this brief debate. I do not know whether my noble friend Lord Blencathra was in his place when I started speaking, but I was praising him and his committee—I also praise him for his stealthy entrance. He asked about statutory guidance. As I said in my brief introduction, all the guidance will now be laid before Parliament, as the noble Lord, Lord Beith, noted, and the SVRO guidance will be subject to the negative procedure.

The noble Baroness, Lady Whitaker, asked the most detailed question, on behalf of her noble friend Lady Lister. She asked specifically about the comments on the gold-plating of human rights. I have a copy here of the letter that was sent to the noble Baroness, Lady Lister, and it is very clear that this is about balance:

“This language has been used in HM Government guidance on unauthorised encampments since March 2015,”


as the noble Baroness noted, but it was not statutory guidance; the Bill now provides this.

“That guidance made clear that human rights legislation does not prevent action to protect local amenities and the local environment; to maintain public order and safety; and to protect public health - for example, by preventing fly-tipping and criminal damage.


The necessary balancing of interests and rights of both travellers and settled residents reflects the position regarding qualified rights in the Human Rights Act 1998/European Convention on Human Rights … and the need to maintain good community relations under the Equality Act 2010. But operationally in the past, this may have been misunderstood by some public bodies.”


We have published in draft the guidance to be issued under Clause 65, so it is open to anyone who wishes to comment on the document to do so. We will, of course, continue to take any such comments into account before promulgating the final version of the guidance. With that, I hope that I have answered the questions, and I beg to move.

[Baroness Whitaker (Lab)]

Before the Minister sits down, who was consulted on this “gold-plating” terminology?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not know; it goes back to 2015. We will look it up for you.

Police, Crime, Sentencing and Courts Bill

Baroness Whitaker Excerpts

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

Moved by

[Baroness Whitaker]

133: Clause 62, page 57, leave out line 7 and insert—
“(d) a constable, following a request of the occupier or a representative of the occupier,”Member’s explanatory statement
This is a JCHR recommendation. This amendment would provide that, as part of the conditions for the new offence of criminal trespass only a police officer could request a person to leave land and only following a request by the occupier of the land.

[Baroness Whitaker (Lab)]

My Lords, I am proud to open the debate on these amendments. They are a means of addressing another very serious departure from the principles of social justice by the Government. I support most of the amendments in the group, which are mostly different ways of tackling the same problem.

I will speak to Amendments 133 and 149 in my name and those of the right reverend Prelate the Bishop of Manchester, and the noble Lords, Lord Bourne of Aberystwyth and Lord Alton of Liverpool, for whose support I am very grateful. The lengthy trajectory of this Committee has prevented the noble Lord, Lord Alton, speaking in person, and the rail disruption after the sad accident near Salisbury has also derailed the noble Lord, Lord Bourne, who told me that he considers our amendments proportionate, sensible and wholly right.

I declare interests as president of Friends, Families and Travellers, co-chair of the All-Party Parliamentary Group for Gypsies, Travellers and Roma, and other positions as noted in the register. I am also grateful to the Joint Committee on Human Rights for its percipient report devoted wholly to the significant difficulties of Clause 62.

Our Amendment 149—the main one—would do away with the problem that the harsh and probably illegal provisions of Clause 62 purport to solve. If agreed, Clause 62 will not be the cruel anomaly that it is. The problem is, of course, the lack of authorised encampment sites, both permanent and transit, whether publicly or privately owned. Our amendment would oblige local authorities to provide adequate accommodation for Gypsies and Travellers residing in or resorting to their area—that is, permanent and transit sites as required. They are already required to assess the need for sites under planning law, so they should know what will be required in law. This means that Gypsies and Travellers would be treated on a par with other homeless families, except, of course at much lower cost than building housing, but because very many authorities have been so negligent in even making assessments, we have also provided a power of ministerial direction if need be.

The Home Secretary does not appear to understand the situation. On 8 March she wrote:

“As of January 2020, the number of lawful traveller sites increased by 41%”.—[Official Report, Commons, 8/3/21; col. 21WS.]


The error here is that this increase refers to transit pitches for individual caravans for a limited period of time. It actually resulted in only 10 additional transit pitches a year, not permanent pitches on permanent sites. There had in fact been an 8.4% decrease in the number of local authorities permanent pitches, as shown in Ministry of Housing, Communities and Local Government figures. Will the Minister apologise for this mistake on behalf of the Government?

The real picture is that, in January last year, for example, only eight of the 68 local authorities in south-east England had identified a supply of permanent deliverable sites to meet the unmet need. That means that 60 had not complied with the Government’s planning policy for Traveller sites. In January this year, there were at least 1,696 households on the waiting lists for permanent pitches in England. As of last March, the last funding round for applications for Traveller sites had awarded funding for only two schemes across the whole country, and that was only for new transit sites. In the context of the overall housing shortage, these numbers may not look large but they are huge in relation to the small number of Gypsies and Travellers who still travel—for instance, in January last year, there were only 694 of them—and to those who need to stay on permanent sites while their children are in school or their elders receive medical care.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

The noble Lord is correct, but the police would have to take into account the various factors that I set out. Obviously, each case is different.

[Baroness Whitaker (Lab)]

I am grateful for the Minister’s attempts to sanitise Part 4, although I did not quite understand her explanation of the Home Secretary’s misleading remarks.

The hour is late. It would not be right for me now to take issue with every point the Minister made, although I would like to. She will have noticed the widespread concern evidenced in many thoughtful speeches about the import of Part 4. I would not say that those concerns have been assuaged by her response. She will also have noticed that stereotyping is still with us, here and there.

However, I am grateful to the noble and learned Lord, Lord Garnier, for his appreciation of the general problem, although I do think that his one anecdotal example could be dealt with perfectly well by the present police powers. However, his suggestion that Clause 62 could attract a compromise in relation to site provision encouraged me to hope that the Minister will discuss a better solution before Report.

On that basis, I beg leave to withdraw the amendment.

Amendment 133 withdrawn.

Migration

Baroness Whitaker Excerpts

Thursday 28th October 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I am proud of the funding that this Government give to museums. I was grateful to chat with the noble Baroness yesterday, because I was not quite sure where this Question was going. The Migration Museum project received a culture recovery fund grant of £65,000 to support it through the pandemic. It has also received project funding from the Arts Council in previous years, with a £40,000 grant in 2017, £124,000 in 2019, I think, and £24,700 in 2020, which has supported education and outreach as well as other activities. On top of that, we would be hard pressed in this country to find a museum that did not in some way refer to migration as part of our cultural offer. I also find it interesting that an immigrant is asking an immigrant a Question.

[Baroness Whitaker (Lab)]

My Lords, a recent survey by the Petitions Committee of more than 500 teachers found that they lack confidence when teaching about migration, which they think of as a “difficult subject”. Do the Government agree that the proposed permanent Migration Museum for Britain, which illuminates the central role that migration, both into and out of the country, has always played in our history, as the Minister said, is a really important addition to Britain’s cultural landscape and that its education programme should play a valuable role in supporting teachers in engaging with this very sensitive topic at a time when it could not matter more? Can the Government recommend this to schools?

[Baroness Williams of Trafford (Con)]

My Lords, I find it interesting that migration is a “difficult subject” given that, it is true to say, we are nation of immigrants. On the funding of specific museums and organisations, I was lucky to be able to speak to the noble Baroness, Lady Bennett, yesterday. I will have to go back to my colleagues in DCMS and ask them about the noble Baroness’s question.

Police, Crime, Sentencing and Courts Bill

Baroness Whitaker Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I shall focus on one proposal: to criminalise trespass for the first time. This offence has been for centuries only a civil offence. The provision fundamentally disadvantages that small number of Gypsies and Travellers who still keep to their traditional nomadic culture but have no authorised stopping place because of the negligence, and worse, of local authorities in ensuring that Gypsy and Traveller sites and stopping places are available, as judges have found. This is a discriminatory provision. It prima facie breaches Article 8 of the European Convention on Human Rights on respect for private and family life, including traditional ways of life, and Article 14 of the convention on the right not to be discriminated against in the enjoyment of Article 8 indirectly or directly, as well as the Equality Act.

It is, moreover, a very wide-ranging measure to penalise a very small absolute number. Even a single Gypsy with his van can be caught, so not only might a family have no place to stop, but the vehicle in which all their possessions are may be impounded. Let us have some idea of the numbers involved. There are in England only 694 Gypsy and Traveller caravans—3% of the total—on unauthorised encampments. That is because of the shortage of sites. No family willingly stops somewhere without running water, waste disposal facilities or electricity and where they face hostility.

The Government justify their trigger for this hostile action as the causation of “significant” damage, disruption or distress, and it is the landlord who can start this process. But these are highly subjective terms and, given the widespread prejudice already evinced, open to cruel abuse. The loose drafting of this provision puts people in peril at the whim of a landlord, and nor are the police asking for these powers, as has been said. What assessment do Her Majesty’s Government make of the police reaction?

Numerous civic groups are against the provision. A conservative think tank, Bright Blue, says that the provision of enough sites would solve the problem without the need for more legal intervention. Moreover, the recent planning definition that Gypsies and Travellers must travel to qualify for site provision, thus penalising the old, the sick and those caring for them, is made unrealistically harsh by this proposal—unless it is accompanied by obligations to provide more sites. So why are the Government proposing this? It looks suspiciously like a dog-whistle appeal to prejudice and racism.

Things seem to be better in Wales, where there is an obligation on local authorities to meet the assessed need for sites. Is it true that the Welsh Government consider the proposal to criminalise trespass to be systemic, racist legislation? What has been the Welsh response?

It would be wrong not to acknowledge that there have been good initiatives—some from the Church of England, some from the enlightened approach of the noble Lord, Lord Bourne of Aberystwyth, when he was Minister, together with recent undertakings from the noble Lord, Lord Greenhalgh, and many through the increasing confidence, education and good citizenship of Gypsies and Travellers themselves. But still, this most basic need for appropriate sites to live on is misunderstood by public policy. Some local authorities do well, and there are well-run and harmonious sites as a result, but, as I have said, the percentage of available sites is pitiful in relation to the need—that is the problem.

I hope I am not an impatient person, but I doubt if I have many years to wait for recognition of what should be done. Really, words fail me—not something that should happen in your Lordships’ House. What are the Government thinking of, sending people with no alternative place to settle to wander the roads, making criminals of them and condemning their children to interrupted schooling and alienation, and, in the last resort, sending them to prison? Where is the impact assessment of all this, as well as of the cost of evictions? In the 21st century, after the terrible century of racial persecution we have endured in Europe—still going on for the Roma people there and elsewhere—how can the Government think that this clause is acceptable? Do they really want to go down in history as the Government who drove these ancient peoples from their only stopping places, without recourse to any other lawful destination? I hope not.

Domestic Abuse Bill

Baroness Whitaker Excerpts

Report stage
Wednesday 17th March 2021 Lords Chamber

[Lord Mann (Non-Afl)]

My Lords, I do not intend to replicate the points made by three excellent and very focused contributions; my comments will be not be instead of but additional and complementary to those, but I will stick to my complementary points because that will assist with brevity and perhaps even with clarity.

In backing the amendment, I want to bring to the House two examples from my experience. The first is the major investigation into heroin abuse that I carried out in 2002 in the mining villages of north Nottinghamshire, where I spoke to more than 300 local heroin users. I found one extraordinary correlation that I did not expect. While they had very different stories, backgrounds and situations, every single one of them bar none had suffered some form of major trauma in childhood. That trauma had not been noted by the system—by which I mean primarily schools and, in some instances, social services, but I am concentrating particularly on what schools missed—or, where it was noted, it was not addressed.

I cited in that inquiry specific examples of young children, primary school children, who got to school late because they did not know when they were meant to get up, because no parent was available to get them out of bed. So they would arrive at school at various times and in various forms of wear to try to participate. My experience was that they were not as successful in school as they could have been. But there was no additionality in the local authority, in its processes and in its funding to identify those problems.

Some children had experienced significant violence in their household, sometimes done to them, and, of course, where there was domestic violence against the mother, there was often violence also against the children. That was a critical part of the trauma in many cases. Such trauma can manifest in very different ways at an early age. One of the most common ways that I found was truancy; in other words, the simple act of not attending school, particularly when it was secondary school. What I noted with some disdain—and I continued to do so for many years, though I would argue against it—was how certain children were categorised as disruptive and their behaviour regarded as dysfunctional, which, on the face of it, it sometimes certainly was, and they did not attend school and school was often happy not to have them.

The fundamental problem that then arises is the effect on all the core communication skills, not least literacy. In a disproportionate number of cases, that directly correlates with domestic abuse, as spelled out in this Bill, in the household. That is example number one.

Example number two is that of a friend of mine, Terry Lodge. He was badly abused as a child. There was always violence, and as a consequence Terry did not go to school. He did not go to primary school as often as would have been helpful, and he did not go to secondary school at all. He was forced to work, and put into major industrial manual work at the age of 11 by his family.

Terry’s is one of the cases I took to the national child abuse inquiry. I represented him there, and I still assist him. He has had a full apology from the local authority, but no compensation yet, four years after his apology. That is absurd and disgraceful—and, more importantly, in my view, damaging. All the way through, Terry Lodge has had one primary request: he never learned to read or write. Nobody is prepared to address that fully. His compensation, if it ever emerges, will be for being handicapped in the labour market, because he could not get to the levels he would have reached if he had been able to read and write.

That directly relates to this amendment, and what it would create. That requirement, in terms of what local authorities do and how they see the world that they are dealing with, is a fundamental weakness in our systems that still exists today. I therefore commend this amendment to the Government. It is vital, and I hope they will accept it.

[Baroness Whitaker (Lab) [V]]

My Lords, I declare an interest as vice-chair of the All-Party Parliamentary Group on Speech and Language Difficulties, as patron of the British Stammering Association, and as a stammerer myself. I warmly endorse all that previous speakers have said, and I thank the Minister for his helpful meeting a few days ago.

I shall briefly address the issue of local authority support, as addressed by paragraph (c) of this important amendment. It is good that the Government have confirmed that local authority strategies will be published, in line with the public sector accessibility regulations, but we need more. Local authorities must also ensure that those will be available in properly inclusive formats, which people without mobiles or access to the internet can see, and in languages other than English.

That is because speech and language therapists, as is mentioned in the useful briefing from the Royal College of Speech and Language Therapists, report that various domestic abuse assessments, often verbally communicated, have not always been understood by people with communication needs, because of the level of understanding, retention and processing required, and often also because of their state of mind, exacerbated by stress brought on by abuse. It is difficult for people who are accustomed to communicating with ease to understand the real impediments to understanding experienced by some of those with communication needs.

The consequence, of course, is that assessments will not reflect the problem, appropriate support will not be forthcoming, and any rehabilitation or prevention programme will fail. What a waste of time and resources. Sadly, it is not uncommon for people with learning disabilities, including children, to be abused, and they are at greater risk of an inadequate professional response if we cannot ensure an effective way to communicate with them.

We need more developed and targeted guidance on how to do this—for instance, following my noble friend Lady Andrews, we could insert references, at paragraphs 81 and 105 in chapter 2 of the draft statutory guidance framework, to accessible information and inclusive communication, and we could state explicitly, in Chapter 4, paragraph 125, that any reference to risk assessment must list speech, language and communication needs as a specific vulnerability which requires an appropriate format. Plain English would be a good start.

Domestic Abuse Bill

Baroness Whitaker Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 27th January 2021 Lords Chamber

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, the noble and learned Baroness, Lady Butler-Sloss, has withdrawn from this debate, so I call the next speaker.

[Baroness Whitaker (Lab) (V)]

My Lords, I speak in support of this whole group. I declare an interest as a vice-chair of the All-Party Parliamentary Group on Speech and Language Difficulties, a patron of the British Stammering Association and, indeed, as a stammerer myself. Stammering is often not recognised as a disability, but depending on its intensity, it has profound effects, particularly on children’s ability to cope with stress and to develop, and it is exacerbated by domestic violence. I am indebted to the Royal College of Speech and Language Therapists for its research.

I will only add to the comprehensive and persuasive speeches by those noble Lords who have spoken to these amendments that in connection with support for communication needs generally in good practice, stammerers have difficulty in reporting traumatic events and in accessing services at the first contact when this is often by telephone. Inclusion of speech and language therapists on domestic abuse partnership boards and in local authority responses in their strategy is of particular benefit to victims who stammer, especially if the role of the therapist is to consider initial access to services.

In respect of guidance on the psychological impact of domestic abuse, in particular on children’s speech and communication, there is evidence that children who are exposed to domestic violence have a greater propensity to develop speech and language difficulties, thus harming their life chances thereafter. For instance, court proceedings can add intimidation and stress, which make these amendments of great importance in alleviating the damage caused by domestic abuse.

[Baroness Finlay of Llandaff (CB) (V)]

My Lords, I declare an interest in chairing the board of governors of Cardiff Metropolitan University, a major provider of speech and language therapy education with 130 students currently enrolled across the three-year course, 49 of whom started in 2020.

I support all the amendments because the links between domestic abuse and people with communication needs are clear but seriously underrecognised. In a cycle of abuse, communication needs in a child are ignored or overlooked as many do not realise how much can be done to improve a child’s life chances if they receive early—I stress early—supportive intervention. Public Health England’s Disability and Domestic Abuse: Risk, Impacts and Response paper reports:

“Disabled people experience disproportionately higher rates of domestic abuse. They also experience domestic abuse for longer periods of time, and more severe and frequent abuse.”


When those victims also have communication needs, they experience more barriers to accessing support such as health and social care services and domestic abuse services, and are at greater risk of ongoing gender-based sexual violence.

But the damage from abuse goes wider. The young child who experiences or witnesses abuse is more likely to have delayed speech and hearing development. This affects global cognitive development, especially in reading and writing, expressive language skills and social interaction skills. These children then fall further behind in many domains and may have flashbacks resulting in emotional shutdown and aberrant behaviours. Of course, they find it harder to express what has been happening, so these children often suddenly break down at school and the whole story unravels, but in a piecemeal and jerky fashion.

The cycle continues. Speech and language therapists working with children and young people in care or in custody report a very high incidence of these children having been abused or witnessed abuse. The key point is that recognition of abuse and subsequent remedial action must happen early, which is why speech and language therapists should be viewed as key members of statutory domestic abuse services.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Whitaker Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

Moved by

[Baroness Whitaker]

42: After Clause 4, insert the following new Clause—
“Commissioner approval for authorisations to identify or confirm journalistic sources
(1) Subsection (2) applies if a designated person has granted a criminal conduct authorisation for the purposes of identifying or confirming a source of journalistic information.(2) The authorisation is not to take effect until such time (if any) as a Judicial Commissioner has approved it.(3) A Judicial Commissioner may approve the authorisation if, and only if, the Judicial Commissioner considers that—(a) at the time of the grant, there were reasonable grounds for considering that the requirements of this Part were satisfied in relation to the authorisation, and(b) at the time when the Judicial Commissioner is considering the matter, there are reasonable grounds for considering that the requirements of this Part would be satisfied if an equivalent new authorisation were granted at that time.(4) In considering whether the position is as mentioned in subsection (3)(a) and (b), the Judicial Commissioner must, in particular, have regard to—(a) the public interest in protecting a source of journalistic information, and(b) the need for there to be another overriding public interest before a relevant public authority seeks to identify or confirm a source of journalistic information.(5) Where the Judicial Commissioner refuses to approve the grant of the authorisation, the Judicial Commissioner may quash the authorisation.(6) This subsection applies to all authorisations pertaining to sensitive journalistic information, material or communications data, other than when the authorising officer has a reasonable belief that any delay in the authorisation would cause an immediate threat to life, in which case the authorisation may only be granted—(a) by an official at a senior level in the agency concerned, and(b) where appropriate safeguards relating to the handling, retention, use and disclosure of the material are in place.(7) The Secretary of State may by regulations made by statutory instrument determine the appropriate agency under subsection (6)(a).(8) A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(9) Any authorisation granted under subsection (6) must be reported to the Investigatory Powers Commissioner within seven days, specifying any sensitive journalistic information, material or communications data that has been obtained, or retained other than for purposes of destruction.(10) In this section “journalistic material” means material created or acquired for the purposes of journalism.”

[Baroness Whitaker (Lab) [V]]

My Lords, I speak to Amendment 42 in my name and those of my noble friend Lady Clark of Kilwinning, who regrets she cannot be here tonight, the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Marlesford. I thank the National Union of Journalists for its advice and declare that I am a former member, and that my daughter has written on the subject of the amendment.

This amendment would ensure that any new powers enshrined in the Bill did not override existing legal protections on press freedom. It seeks to maintain the protections that whistleblowers currently enjoy and to enable journalists to continue to carry out their roles. As it stands, the Bill creates an avenue to access confidential journalistic material and sources without any prior judicial oversight. I hope that this is not the intention of the Government and that the current legislative framework of protections can be maintained. I intend to seek the opinion of the House if the Government cannot reassure me.

The amendment requires that a judicial commissioner give prior approval for authorisations to identify or confirm journalistic sources. The commissioner would need to have regard for both public interests in protecting the source of journalistic information, and the need for there to be another overriding public interest before a public authority seeks to identify or confirm a journalistic source. This reflects the requirement of the Investigatory Powers Act 2016 that, when any application is made to identify confidential journalistic sources, prior authorisation is required by a judicial commissioner. Our amendment respects the contingency that there could be in some cases be an immediate risk to life. In such circumstances, it relaxes the requirement for prior approval by a judicial commissioner, so it meets government objections previously raised.

I understand that the protections enshrined in the Investigatory Powers Act 2016 honoured a commitment in the Conservative Party election manifesto. This commitment followed detailed and sustained representations by the National Union of Journalists and others. They outlined their serious concerns that compromising journalistic confidentiality and the protection of sources was undermining the ability of whistleblowers to make disclosures to journalists in the public interest, and rendering journalists unable to uphold their own ethical commitments to professional privacy.

--- Later in debate ---

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

I have received no request to ask a short question. Accordingly, I call the noble Baroness, Lady Whitaker.

[Baroness Whitaker (Lab) [V]]

[Inaudible.] I thank the Minister for her typically considered response. After such a long session on Report, I will not comment in detail on the contributions, other than to say that the Government’s response to the 10th report of the Joint Committee on Human Rights—on the general point of judicial authorisation—underestimates the capacity of people trained and experienced in the judiciary to weigh up the implications of actions within a framework of the limits that should be set on behaviour. They are accustomed to doing this with a variety of warrants. The Government’s proposal, which the Minister has not offered to modify in any way, omits the essential requirement of prior authorisation; she insists that this is vital. However, judges are used to making prior authorisations very quickly. Even magistrates are woken up in the middle of the night to approve warrants. The Minister’s objections are not strong enough to warrant my withdrawing the amendment, so I wish to test the opinion of the House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Whitaker Excerpts

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

Debate on Amendment 11 resumed.

[Baroness Whitaker (Lab)]

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

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

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

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

[Baroness Jones of Moulsecoomb (GP)]

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

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

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

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

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I think the only response to that is to thank my noble friend for taking the time to explain it to noble Lords.

[Baroness Whitaker (Lab)]

In thanking the noble Baroness for her characteristically thoughtful response and her offer to meet noble Lords, I ask her also to include a discussion of journalistic sources, because the code of practice left me with some questions. I assume that the meeting will be before Report.

[Baroness Williams of Trafford (Con)]

I am very happy either to write to the noble Baroness and outline what I said in more detail or meet with her before Report.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Whitaker Excerpts

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

[Baroness Whitaker (Lab) [V]]

My Lords, I concur that the Bill is necessary, but it is too loose—[Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

I am sorry to interrupt the noble Baroness, but we are struggling to hear her. Is it possible for her to speak closer to the microphone?

[Baroness Whitaker (Lab) [V]]

Is that better? I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act but— [Inaudible.]

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I am afraid we still cannot hear the noble Baroness. I suggest that we come back to her because we are not able to pick up her words. If she has a chat with the people on the other end of the line, we will come back after the next speaker, hopefully when her microphone is functional. I am sorry, but I am going to move directly on to the noble Baroness, Lady Ritchie of Downpatrick. We will return to the noble Baroness, Lady Whitaker, next.

--- Later in debate ---

[Baroness Whitaker (Lab) [V]]

My Lords, I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act, but there are other rights which could be breached as the Bill stands. There are considerations relating to public morality and the exercise of democracy—[Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am very sorry, but I am afraid that the gremlins seem to have succeeded in this instance. We may have to leave it there.

--- Later in debate ---

[Baroness Whitaker (Lab) [V]]

Thank you. As I am on the phone, it probably will work.

My Lords, I concur that the Bill is necessary, but it is too loose. It is apparently compatible with the Human Rights Act, but other rights could be breached as the Bill stands, and there are considerations relating to public morality and the exercise of democracy that lie behind the Human Rights Act which need addressing. It is not satisfactory that the crimes that may be committed are not specified, as they are in Canada and the USA. We need an assurance that the Government will retain the Human Rights Act. Will the Minister please provide that? Following the noble and learned Lord, Lord Hope of Craighead, can she confirm that the UN convention against torture could be engaged when any authorisation is made? How will crimes not specified in the Human Rights Act, such as rape or sexual exploitation, be prohibited? This is particularly disturbing when those making the authorisations will be not independent or judicial but members of the very organisation which wants the authorisation.

I will make four specific points. First, allowing any crime in the interests of economic well-being and preventing disorder allows for undemocratic and oppressive activities. How will the cited brake of the Human Rights Act constrain these? Secondly, why is it appropriate for the Competition and Markets Authority to commit crimes? This is intrusive. How will it be accountable? Thirdly, leave to compel access to journalistic sources is a very serious step and should be granted by a judicial figure, not the recipient authority. Fourthly—here I echo very many other noble Lords—is the very disturbing element, not new to this Bill, that children can be invited to cultivate deception and entrapment. How does that accord with the rights of the child and the paramount importance of their welfare, as my noble friend Lady Massey asked? The draft code helpfully provided by the noble Baroness is explicit about the use of so-called juveniles—that is, children—as covert sources. Surely this is justified only when their own safety is at risk from the activities that they are asked to spy on. The draft code says that such authorisations must be given taking account of the best interests of the child. Does fostering morality have no place in welfare or in best interests?

In her helpful meeting on the Bill, the Minister said that we must live in the real world. I hope that one of the differences between these Benches and those of the Government is not trying to make a better world rather than accepting a world where crime reduction depends on the exploitation and debasement of children. I look forward to the noble Baroness’s answers.

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

Baroness Whitaker Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I have little to add to the magisterial introduction made by the noble Baroness, Lady Hamwee, to Amendment 27A, but I will emphasise the deficit of the Bill as it stands especially with regard to Roma women with settled status who look after their children full-time and who apply for British citizenship. The underlying problem—in real life rather than in Home Office rules—is that while their children are little, the mothers have a weak connection to the labour market, like other full-time mothers. I am surprised that this Government should prejudice mothers in this way.

So, because they cannot prove they were exercising treaty rights—according to the Home Office, which does not accord with the European Commission’s interpretation—by showing that they have comprehensive sickness insurance, their application fails. I remind your Lordships that Theresa May, as Home Secretary, recognised this injustice and promised to do away with the requirement for CSI in these cases. So it is very odd that updated Home Office guidance in 2020 changed the application process to direct caseworkers to check whether such applicants had CSI. An undefined power of discretion has not proved much use in rectifying the injustices to full-time mothers. It is shocking that the Government have not honoured the earlier commitment.

In her letter to us of 29 September, the Minister said that the Government’s policy is that CSI is not required to obtain status under the EUSS. Nevertheless, the grace period SI maintains CSI as a requirement for lawful residence during the grace period as a student or self-sufficient person, such as a full-time mother, under the saved EEA regulations because, according to the Home Office, this is consistent with EU law. This is not the European Commission’s view, and it is not right or just that applications are turned down because there is no CSI.

[Baroness Ludford (LD)]

My Lords, I will go over very similar ground to that raised by my noble friend Lady Hamwee.

The background is that, under the withdrawal agreement, the UK is obliged to create a grace period following the end of the transition period. During this grace period, EEA citizens have the opportunity to apply by a deadline for a new immigration status through the EU settlement scheme, as it is called in the UK.

As EU rights will end on 31 December, the Government need to create an interim status for those who have yet to acquire their new status via the EU settlement scheme—hence the grace period SI. As we know, it sets the deadline for applications to the settlement scheme as 30 June next year, but the Minister said last Wednesday, on the first day of Report, that it would also

“protect the existing rights of resident EEA citizens and their family members during the grace period.”

What does “existing” mean? A fact sheet published in July also used that adjective when it said that the power in Section 7 of the European Union (Withdrawal Agreement) Act 2020 would be used—as has now happened with this grace period SI—to make regulations

“to protect the existing rights of those individuals who are eligible to apply to the EU settlement scheme”.

As the noble Lord, Lord Parkinson, did in Committee on 16 September, the Minister said last Wednesday that she could reassure us—here, I repeat a quotation given by my noble friend—that

“EEA citizens’ rights to live and work in the UK will not change during the grace period, nor does the grace period SI change the eligibility criteria for the EU settlement scheme. Therefore, there is no change to the Government’s policy”,

which, as we have learned, was set by Theresa May,

“that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme.”

Therefore, so far we have established two government statements: first, that the existing rights of those eligible to apply to the EU settlement scheme will be protected; and, secondly, that acquiring settled status will not involve a requirement for CSI. So far, so good. Ministerial assurances seemed to accord with Article 18(3) of the withdrawal agreement, which provides that, pending a final decision, all rights provided for in the citizens’ rights section of that agreement shall be deemed to apply to the applicant. That means residence rights and all related equal treatment rights.

However, things then get somewhat murkier. Last Wednesday, the Minister added a caveat—again, quoted by my noble friend—when she said:

“People need to exercise free movement rights to benefit from the savings in the grace period SI. We are not inventing rights of residence to save them, because that is not what the withdrawal agreement says.”—[Official Report, 30/9/20; cols. 243-4.]


When I checked back, I saw that the noble Lord, Lord Parkinson, had explicitly said on 16 September in Committee:

“The grace period SI maintains”


comprehensive sickness insurance

“as a requirement for lawful residence during the grace period for a student or self-sufficient person under the saved EEA regulations, as is consistent with EU law.”—[Official Report, 16/9/20; col. 1340.]

I will not go round all the houses again, but I beg to differ with that last comment, as I believe that the Commission is pursuing infringement proceedings—it is taking a while; it launched them in 2012—over the Government’s wrong interpretation of CSI as meaning private health insurance. In this country, it should mean accessing the National Health Service. However, for current purposes, I will just concentrate on the first part of the noble Lord’s statement: namely, the proposal that during the grace period students and self-sufficient persons will have to show that they have CSI—that is, private insurance—in order to qualify as lawfully resident.

The remarks confirm that in their current form, limiting a legal basis to live in the UK to those who were “exercising treaty rights” in accordance with existing EEA regulations by the end of the transition period, the regulations appear, as my noble friend said, to exclude a large cohort of people from having a legal basis to live in the UK during the grace period and while their application is pending. In general, a worker and someone who is self-employed will benefit from legal protections, but those not economically active by the end of the transition period will likely be unable to do so, with the consequences that my noble friend enumerated—possible removal, the denial of NHS treatment, being put out of a job, or whatever.

Even where someone successfully lodges an application with the EU settlement scheme, if they are awaiting a decision beyond the end of the grace period and are not in scope of the regulations, they will not have the legal protections it offers. Therefore, someone with a complex EUSS case could be without a legal basis to remain in the UK for many months beyond the grace period.

As a taste of things to come, a case has been brought to my attention where parents seeking to renew their five year-old son’s British passport were told that the EU citizen father had to supply evidence of having had CSI—I repeat: private health insurance—when he was a student many years ago.

To recap where I think we are, we have three government statements: first, that the existing rights of those eligible to apply to the settlement scheme will be protected in the grace period; secondly, that CSI is not a requirement for acquiring settled status; and, thirdly, that CSI is a requirement for some people to have lawful residence in the grace period. We can add in a fourth, given in the course of this Bill: that discretion will be exercised—we have not heard how—in regard to the absence of CSI in assessing eligibility for citizenship.

I am struggling to make sense of how those four statements fit together and to understand how the Government really intend to treat people. So far as I can see, it leaves matters as clear as mud and full of contradictions and obstacles. It seems that the Government are set on making a person cross a crocodile-infested river of legal uncertainty over residence before they can reach the safe shore of settled status.

Therefore, I back up the questions that my noble friend asked the Minister about the practical implications for people who do not fall within the scope of the regulations. Will there be further regulations to cover those eligible for settled status but not in scope of the regulations? When they apply for settled status, will they be told, “Oh no, we don’t need to ask you for CSI, but in the meantime, under the grace period SI, you need CSI”. It is like being on a chessboard, although I can think of some other analogy.

I have one last question. Are the Government willing to consider changing the draft regulation from stating a requirement to have been “lawfully resident”—which, as we know, according to the Government’s interpretation is an extremely loaded term—to a requirement simply to have been “resident”? Given that this definition operates for only six months, save in cases where a settled status application has been made, this might be a simple, workable solution that could save a lot of people a lot of anxiety. This sounds like an awfully complicated and arcane situation. It is, and in the real world a lot of people are affected by it. They are represented by the the3million group, which, again, is doing sterling work, although, as far as I know, even it has not got its head round it, so I do not know what hope there is for someone like me.

I hope the Minister can bring some coherence to this situation, or display a willingness to look again at the regulations under the grace period SI to see if the Government are creating unnecessary hurdles for people who were told they would not need CSI or settled status when perhaps applying later for citizenship. It seems to be creating an awful lot of unnecessary hassle.