Offensive Weapons Bill

Baroness Williams of Trafford Excerpts

Report: 1st sitting: House of Lords
Tuesday 26th February 2019 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, Amendment 1 is in my name and that of my noble friend Lord Paddick, as are all the other amendments in this group—Amendments 2, 15, 16, 25, 26, 64, 65, 67, 68, 70 to 73, 78 and 79—16 amendments, each deleting a three-letter word. The word is “all”, as in taking “all reasonable precautions” and exercising “all due diligence” in connection with the sale of corrosive products to someone under 18, in Clause 1; the sale of bladed articles to someone under 18, in Clause 15; and the delivery of bladed articles to residential premises, in Clause 18. These are defences to the offences contained in those clauses, so it is no minor matter.

The meaning of “all reasonable precautions” and “all due diligence” emerged in Committee. The noble Lord, Lord Lucas, raised it, others followed it up, and the noble and learned Lord, Lord Judge, said:

“If I might say so, ‘all’ means ‘every’. Without ‘all’, you have just to take reasonable precautions and show due diligence. Once you put ‘all’ in, you fall foul of any particular point you could have but did not look at and did not do”.


Clearly, this is a very high bar, and it took a number of noble Lords somewhat by surprise, I think. I am unclear about what it might mean, particularly when coupled with “reasonableness”, because it is not just about doing the reasonable thing; it is about doing every reasonable thing. The Minister said in that debate:

“All roads are leading back to the guidance”,—[Official Report, 28/1/19; col. GC 163.]


having told the Committee that the Government want to produce guidance—we will debate that later—to ensure that retailers and sellers know what steps they could take, with regard to Clause 1, to ensure that they comply with the law. On the wording, is it about steps that they can take or steps that they must take? It seems to me that the wording used throughout the Bill does not allow for common-sense alternatives or even minor omissions. Of course, guidance is produced by the Executive, not by Parliament. Indeed, to end with a question, will one necessarily have complied with the law, even if one follows guidance to the letter, if all reasonable precautions and all due diligence have to be applied? I beg to move.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, as the noble Baroness explained, these amendments relate to the level of burden of proof required for retailers and delivery companies if they want to avail themselves of the defences available to them if charged with an offence of selling or delivering a corrosive product or a bladed article to an under-18 or the offence of delivering a corrosive product or bladed article to a residential address. Under these amendments, retailers and delivery companies would need to prove just that they had taken reasonable precautions and exercised due diligence to avoid the commission of the relevant offence, rather than, as the Bill provides, that they took all reasonable precautions and exercised all due diligence, as the noble Baroness explained.

I am not persuaded, despite the noble Baroness’s words, that it is unjust to require a person to prove that they have taken all reasonable precautions and exercised all due diligence to avoid selling or delivering corrosive products or bladed articles to under-18s or to avoid delivering such products or articles to residential premises. Retailers have had to operate to this standard under existing law and to lower the burden of proof would leave us with a burden of proof in the Bill that was out of sync with existing legislation. I will give some examples.

Under Section 141A(4) of the Criminal Justice Act 1988, it is a defence for someone charged with the offence of selling a knife to an under-18 if they can prove that they,

“took all reasonable precautions and exercised all due diligence to avoid the commission of the offence”.

The Licensing Act 2003 requires a defendant to prove that,

“he had taken all reasonable steps to establish the individual’s age”,

in regard to the selling of alcohol to an under-18. Under Section 7 of the Children and Young Persons Act 1933, which prohibits the sale of tobacco to under-18s, the defence is in similar terms. Part 4 of the Gambling Act 2005 includes various offences in relation to children; under Section 63, it is a defence to show that the defendant “took all reasonable steps”.

As a result of these examples in law, I urge that the higher burden of proof is an established defence, and one which has been in place for a significant amount of time without issue. Retailers now know what is required of them by way of proof if they wish to make use of the defence if charged with the offence of selling a knife or bladed article to an under-18. It is understood by retailers, Trading Standards and the police. Having two different burdens of proof in place would, I think, be confusing to all concerned. I do not think it would help the police, Trading Standards officers, prosecutors or the courts. Noble Lords are always calling for consistency, and I think there is a strong argument for consistency here. I hope that, on reflection, the noble Baroness, Lady Hamwee, would agree and be happy to withdraw the amendment.

[Baroness Hamwee]

My Lords, it is certainly a burden in the sense of the weight of it rather than the balance of it, which is how we normally consider the burden of proof. The Minister says that retailers now know. My question was whether they will know from the guidance that is to be produced. I shall have to leave that hanging, as this is the point that we are at. Maybe the Minister will be able to answer that when we come to the next group and talk about guidance. Perhaps we will also have to wait for an answer on whether guidance across all the offences—not just those within this Bill but others that the Minister mentioned—will be consistent. Clearly, we are not going to be of the same mind here but I beg leave to withdraw the amendment.

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[The Earl of Erroll (CB)]

My Lords, I think that a bit of certainty here is essential. One of the problems that exist elsewhere is uncertainty surrounding what is going to be required. It is very difficult for traders if they do not know what part they are going to play. However, when we come to the next amendment I will say something about that which I think will be helpful.

[Baroness Williams of Trafford]

I thank noble Lords for their comments. I agree that, as the noble Lord, Lord Kennedy, and the noble Earl, Lord Erroll, pointed out, people have to understand their responsibilities. In Committee there was much debate about the need for guidance, particularly for retailers, manufacturers, delivery companies and the like, about the operation of the provisions in the Bill relating to the sale and delivery of corrosive products and offensive weapons.

In response to the debate in Committee, I said that it was our intention to issue appropriate guidance. A number of noble Lords, including my noble friend Lord Lucas, wanted to see that commitment reflected in the Bill, and government Amendment 106 does just that. It enables the Home Secretary, Scottish Ministers and the Northern Ireland Department of Justice, as the case may be, to issue guidance about the provisions in the Bill, and the existing law as amended by the Bill, relating to corrosives and offensive weapons.

Importantly, the amendment also sets out that, before guidance is published, the relevant national authority must consult,

“such persons likely to be affected by it as the authority considers appropriate”.

We would, for example, expect to consult organisations representing both small and large retailers of knives and corrosive products. This would ensure that those directly impacted by these measures have a hand in developing the guidance that is most useful to them. That is an important part of the Bill.

Were he in his place, I hope that my noble friend Lord Lucas would agree that government Amendment 106 covers similar ground to his Amendments 3 and 81 and, indeed, provides a more comprehensive list of the provisions where it might be appropriate to issue guidance. Government Amendments 108, 112 and 113 are consequential to Amendment 106. I hope that on that basis the noble Baroness will be content to withdraw Amendment 3 and support the government amendments.

[Baroness Hamwee]

My Lords, I am indeed. I beg leave to withdraw the amendment.

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[Baroness Williams of Trafford]

I thank noble Lords who have spoken to these amendments, which are about the use of short custodial sentences and minimum custodial sentences. I have reflected on the concerns raised in Committee by noble Lords but I remain of the view that there is—as noble Lords have reiterated today—a place for custodial sentences as part of the range of penalties available to the court for the offences in the Bill. The noble Lords, Lord Hogan-Howe and Lord Kennedy, articulated that.

In Committee, I stressed the significant harm and injuries that corrosive products can cause if they are misused as a weapon to attack someone. We are talking about a serious offence, one for which the use of custody should be available to the courts in certain circumstances. I was very grateful to the noble and learned Lord, Lord Judge, who is not in his place today, when he made the point in Committee that custodial sentences have a place when dealing with specific types of offenders. He referenced cases where a retailer has repeatedly sold a corrosive product to under-18s and may have already been subject to a community sentence. That is one set of circumstances; there may be others where the offending is so serious that only a custodial penalty should be imposed.

In the earlier debate the noble Lord, Lord Kennedy, was concerned that a range of different sentencing options is available to the courts. I want to stress that by providing custody as a maximum penalty, we are providing the courts with a range of sentencing options from custody through to a fine, or both. This means, to speak to the points made by my noble friend Lord Elton, the noble Baroness, Lady Meacher, and the noble Earl, Lord Listowel, that the courts will also have the option to impose a community sentence. As the noble Lord, Lord Kennedy, said, the application of these sentences has to be meaningful, but they can be imposed if they are the most appropriate sentence, taking into account all the circumstances of the offender and the offence. As I said in Committee, there is also a requirement under the Criminal Justice Act 2003 that the court has to be satisfied that the offence is so serious that only a custodial sentence can be justified. We can have every confidence that the courts will sentence offenders appropriately, based on the circumstances of the offender and the offence.

[Lord Elton]

Can my noble friend assist me? I ask forgiveness for my ignorance but as I read subsection (7), it says:

“A person guilty of an offence … on summary conviction in England and Wales”,


is liable to be imprisoned,

“for a term not exceeding 51 weeks, to a fine or to both”.

There is no reference to any other treatment or sentence. My noble friend said that there was access to that; I would be grateful if she could tell me how it died.

[Baroness Williams of Trafford]

I do not know whether my noble friend was in Committee, but when the amendment on having just a community sentence was moved, we discussed the fact that when there is the possibility of a custodial sentence, it is open to the courts to impose that or a lesser sentence such as a community sentence, which can have the conditions that the noble Lord, Lord Kennedy, and my noble friend referred to earlier. It is open to the courts to have some flexibility over what the penalty should be, as it relates to the particular offence that has been committed. We also discussed in Committee that under the Criminal Justice Act 2003, the court has to be satisfied that the offence is so serious that only a custodial sentence can be justified. I hope and think that we can have confidence that the courts will sentence offenders appropriately, based on the circumstances of both the offence and the offender.

[Lord Elton]

If I may trouble my noble friend once more, as I read it, they are prohibited from applying a sentence of more than the time specified in the Act. My objection is to exactly that: the short duration. If there has to be custody, it needs to be long enough for the person to be assessed, treated and known properly. Six months does not do it.

[Baroness Williams of Trafford]

My noble friend is absolutely right about the maximum sentence, but alights on an important aspect of someone’s rehabilitation, which is not just about the custodial sentence—it is about all the other interventions that go with it, both while that person is in custody and upon release.

The other difficulty with the amendments is the damage that they do in undermining the steps we have taken in the Bill to ensure consistency, regarding the maximum penalty available to the courts when dealing with offences relating to the sale to a person under 18 of corrosive products on one hand, and of a knife or bladed article on the other. When the Bill was considered in Committee in the Commons, there was strong support from the Opposition for a consistent approach to be taken.

I am well aware of concerns about individual retail staff or delivery drivers being prosecuted, and the impact that would have on them. However, the experience from other age-restricted products is that in many cases it would be the company selling the product or arranging its delivery that would be prosecuted. There could be occasions when it might be a shop worker who was prosecuted, but it is more likely that it will be the company operating the store, because it will be responsible for ensuring that procedures and training are in place to avoid commission of the offence. Where it is the company that is prosecuted, the sentence is likely to be a fine rather than a custodial or community sentence; but if an individual is prosecuted, the full range of penalties should be available.

[Lord Kennedy of Southwark]

The Minister mentions an interesting point, about the company being prosecuted, and then talked about the range of penalties. Would it be an individual, such as the chief executive, managing director or personnel director, who would be prosecuted?

[Baroness Williams of Trafford]

In precedence for these sorts of cases, it is quite often the company that is prosecuted, with a fine—of a range—imposed on it. Obviously, if an individual is prosecuted, the full range of penalties should be available.

[Lord Kennedy of Southwark]

When we had the debate before, I think it was suggested by one of the Minister’s noble friends that when health and safety law changed and responsibility was brought to bear on company directors, all of a sudden health and safety improved dramatically in this country. If the company directors or chief executive were more liable, the training they gave to their staff might dramatically improve.

[Baroness Williams of Trafford]

The prosecution may well fall on a director, because the director is seen to have fallen short in some of the processes to comply with the law. However, yes, it is usually the corporate body rather than the director, but I see the noble Lord’s point.

We have heard that there is evidence that short sentences are ineffectual regarding rehabilitation. The Justice Secretary and Prisons Minister are looking at the question of short sentences and the use of prison in the round. A number of noble Lords have raised that; the noble Baroness, Lady Hamwee, quoted the Justice Secretary in a speech on this very subject.

We have already been clear that custodial sentences should be seen as a last resort, and that offenders with complex needs—including female offenders—should be dealt with in the community wherever possible. However, we must ensure that sentencing matches the severity of a crime, and prison must always be available for the most serious offenders. I am concerned that we do not send out the wrong message that the use of corrosives as a weapon is somehow less serious than the use of knives.

Amendments 32 and 34 seek to strike out the provisions in respect of mandatory minimum sentences in Clauses 8 and 9. Again, the effect would be to treat carrying corrosive substances in a public place less seriously than carrying a knife. These clauses mirror existing knife legislation, and ensure that anyone aged 16 or over who is convicted of a second possession offence or a similar offence—such as an offence relating to a knife—will receive a custodial sentence unless the court determines that there are appropriate circumstances not to do so. The use of minimum custodial sentences will make it clear to individuals that we will not tolerate people carrying corrosives on our streets and other public places with the intention to harm or commit other crimes, such as robbery.

We are talking about serious offences here, where someone is carrying a corrosive substance which could result in someone being attacked and left with terrible injuries, as well as the fear that this can instil into communities. We should bear in mind that the requirement to impose the minimum sentence is not absolute; there is judicial discretion. The court must consider the circumstances of the case, and if there are relevant factors that would make it unjust to impose the minimum sentence, the court has the latitude not to do so.

I recognise that there is a wider debate to be had about our sentencing framework, but this Bill is not the place for it. We are dealing here with particular offences and seeking to ensure consistency between how the criminal law deals with the sale, delivery and possession of corrosive products and substances on one hand, and of knives and offensive weapons on the other. On that basis, I hope that I have been able to persuade the noble Baroness to withdraw her amendment. If not, I invite the House to agree that for these offences, short custodial sentences and minimum custodial sentences continue to have a place, and that noble Lords will accordingly reject the amendment.

[Baroness Hamwee]

I am grateful to all noble Lords who have contributed. The noble Lord, Lord Hogan-Howe, may not expect me to be grateful, but I am. His raising the issue of weekend sentences was very interesting, and confirms what has come from a number of noble Lords—that the legislation around sentencing generally needs a good look at and some updating to how it operates. Even if you take a firm position one way or the other regarding short sentences, the way that the provisions in legislation interact is clearly troubling a number of noble Lords.

I do not want to respond to all the points made and repeat what I have already said. I am sure that the noble Lord, Lord Hogan-Howe, and my noble friend Lord Paddick could reel off the offences that might be used in the case of the use of corrosive substances causing injury. That is not the subject of these amendments or of the clauses in question.

I also regret the absence of the noble and learned Lord, Lord Judge, who has made it very clear that he opposes mandatory sentences. I will leave it at that point and beg leave to withdraw the amendment.

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[Lord Kennedy of Southwark]

My Lords, these amendments, in the name of the noble Lord, Lord Paddick, seek to allow the delivery of corrosive and bladed products to residential addresses where steps are taken to ensure that the recipient is over the age of 18. If we can get to a position where this is possible, I would be very happy to support these amendments. Getting the balance right between putting in place precautions to stop young people getting their hands on these products, and adequate offences, is something we should all support. If that can be done in a way that is not damaging to business, that is all the better.

I am, of course, very concerned about the situation regarding knife attacks in Sheffield, and we will come on to my amendments about that later. We had a very positive meeting earlier this week. I am happy to support these amendments if we can get that balance right. I still have an issue about putting restrictions on overseas companies as our jurisdiction ends here in the UK. If we can get a system whereby we ensure that British companies are not disadvantaged and, equally, have some restrictions, I will fully support that.

[Baroness Williams of Trafford]

My Lords, I am grateful to the noble Lord, Lord Paddick, for explaining the rationale of these amendments, which would change the new offence of sending a corrosive or bladed product to residential premises or a locker so that no offence is committed if a product is delivered into the hands of a person over the age of 18. This would mean that sellers could continue to dispatch products to residential premises providing that they are sure that the products will be delivered to a person over 18. The amendments for corrosive products also amend the defence of having taken all reasonable precautions, to include that they believed that the products would be delivered to a person over 18 and they had either taken reasonable steps to establish the person’s age—for example, relevant age-verification documents such as a passport or driving licence had been provided—or it was clear that the person was not under the age of 18. It would also be a requirement for a delivery company acting on behalf of the seller to confirm they had checked the person was over 18 at the point of delivery. In effect, the amendments in this group say that if a seller meets the first of these requirements, they can go ahead and sell the items to residential premises.

The Government’s approach to the sale of corrosive products, bladed articles and products in relation to UK remote sellers is twofold. First, we want to drive an improvement in the age-verification and dispatch processes of remote sellers. We are doing this by saying that unless they meet certain minimum conditions, they will not be able to rely on the defence that they have taken all reasonable precautions and exercised all due diligence if they are prosecuted for the offence of selling a corrosive product or a bladed article to a person under 18. These conditions include that they have suitable age-verification systems in place at the point of sale, that they clearly label the items when they are dispatched and that they have arrangements in place to ensure that when finally delivered, the items are delivered into the hands of a person over the age of 18. Many of the requirements covered by the amendments in this group are already reflected in the Bill.

Secondly, we believe that in addition to stronger checks by remote sellers, the dispatch of corrosive and bladed products to a residential premise or locker should be banned and that instead, buyers will need to pick them up from a collection point. This will ensure that the items are not delivered to a person under 18. There are two reasons why the Government believe that, in addition to age checks at the point of sale, sellers should also be prohibited from sending the products to a home address. First, it will be possible for buyers to get round any age-verification systems at the point of sale in relation to remote sales, for example by using a borrowed credit card or using another person’s passport or driving licence. Until we are confident that online age-verification systems are robust, we do not want to depend on them entirely.

[The Duke of Montrose]

My Lords, I have a series of amendments later on to do with the delivery of bladed articles to residential premises. One of the matters that will always arise is that the Government say that if you can get your house classified as a place of business, then you come into the permitted category. However, I have two questions: first, what constitutes designating your premises as a place of business and secondly, will that affect the local authority’s view as to the level of rates that it would impose on the premises?

[Baroness Williams of Trafford]

Turning to my noble friend’s question, if your home is also your registered business address, then clearly is it both. The noble Lord actually raised that point in Committee. The residential address can be either just a residential address or both a business and a residential address.

Returning to my other point about someone being prohibited from selling a product to a home address, we want to avoid any liability regarding checking age falling on the delivery company when the item is handed over. This is because delivery companies indicated in our discussions with them that they might simply refuse to deliver items on behalf of sellers if the legal responsibility for checking age falls to them. We are willing to accept this risk in relation to overseas sales because we are less concerned about the impact on overseas sellers, should their trade be affected, but for UK sales we do not want to place a liability on deliverers because there is a risk that they will then refuse to deliver any bladed items. The Government position is therefore that any liability for ensuring that any remotely sold corrosive and bladed products in the UK are not sold and delivered to under-18s should fall solely on the seller.

I have one final point to make, about a meeting that the noble Lord, Lord Kennedy, and I had with the Sheffield knife manufacturers. As a result of that meeting, I want to satisfy myself of the position in relation to a couple of major delivery companies to ensure that that has not changed. Nothing in the meeting led me to doubt the position, but I just want to clarify that. In the meantime, I ask the noble Lord, Lord Paddick, to withdraw his amendment.

[Lord Paddick]

My Lords, I am grateful to the noble Lord, Lord Kennedy, for his qualified support for these amendments. As far as the explanation from the Minister was concerned, however, if you are a sole trader, you could be considered to be conducting your business from your home address. The Inland Revenue would be the only ones who knew that, and that information would be confidential. Therefore, there is no way that a delivery company could establish beyond reasonable doubt whether your residential address was a business address or not. As with a lot of this Bill, it clearly has not been thought through. The Minister has completely avoided the fact that this significantly disadvantages UK businesses as opposed to overseas ones. If they do not inform the UK delivery company what is in the parcel, there is absolutely no comeback on the delivery company whatsoever. Anything can be delivered to a residential address, whether it is a bladed article or a very strong acid ordered from an overseas business.

The Government say they want to avoid putting a liability on delivery companies, but this legislation puts liability on delivery companies if they are delivering corrosive substances or bladed articles from overseas. The only difference concerns whether the company is from the UK or overseas. Again, the Minister failed to answer how age verification at a collection point is more secure than on the doorstep. She completely failed to address the issues I raised. However, there are far more important things to get on to so at this stage, I beg leave to withdraw the amendment.

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[Baroness Neville-Rolfe (Con)]

My Lords, as some noble Lords know, my background is in retail, and I have experience of managing the sale of dangerous objects—such as knives—and of alcohol and glue in shops, as my noble friend mentioned. This is an important issue, and we all have a lot of sympathy with workers in this sector. It is also important that we get it right, and while the issue affects shop workers, it is important to look at it in detail and work out what sectors would be affected. There has been a call for evidence and a meeting of the National Retail Crime Steering Group to look into this matter. It is important to look carefully at these offences, and provide time for interested parties, such as those representing shops, the unions and other stakeholders, to come forward and look at the detail of the arrangements. That makes it difficult, given we have got to Report, to deal with it in this Bill.

We all recognise concerns raised by stakeholders. Indeed, the Bill is about trying to make sure that offensive weapons do not get into the wrong hands. I am sympathetic to more work being done on that, but it is important to look at both legislative and non-legislative options for this sort of proposal. I look forward to hearing my noble friend the Minister’s response to this important amendment.

[Baroness Williams of Trafford]

My Lords, I thank noble Lords for speaking to this amendment. I am particularly grateful to the noble Lord, Lord Kennedy, for his tireless work throughout the Bill to raise awareness of the violence and abuse towards shop workers, often those in small corner shops who are on their own, late at night, with little protection and who face, as my noble friend Lord Goschen pointed out, quite abusive behaviour. I thank the noble Lord and representatives from USDAW for meeting me, and having a constructive discussion about how we can improve protections for shop workers, and whether there are any gaps in both the legislative and the non-legislative space that we can work on. I am concerned for retail staff who do not feel safe when they are carrying out their duties at work. As I have said previously, everyone has the right to feel safe at work.

We had a good debate on this matter in Committee, and I understand the strength of feeling on this issue—I am very sympathetic to it. I know that the noble Lord, Lord Kennedy, was grateful to have a meeting with the Minister in the other place on this issue as well. Before I outline the Government’s work in this area, I want to be absolutely clear that we do have an extensive legislative framework in place to protect those facing abuse in the workplace. It ranges from civil tools and powers, including civil injunctions to address lower-level anti-social behaviour we often see, to criminal offences including harassment, common assault, assault occasioning actual bodily harm, and threats to kill in some rare cases. Where an offence is committed against a shop worker in the course of carrying out their duties, the courts can, quite rightly, take into account as an aggravating factor the fact that the offence was committed against a person serving the public. That, in part, answers my noble friend Lord Goschen’s point. In addition, the Sentencing Council is due to consult on an updated guideline on assault this summer.

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[Baroness Williams of Trafford]

I totally understand the noble Lord’s point. He reminds me at every opportunity and I think that I will have written on my grave the “rogue landlords database”. However, I have to say that bringing forward the call for evidence will expose any gaps in the legislation. I appreciate, and I know that the noble Lord does as well, that we are going through a busy legislative time. However, we will provide opportunities to bring forward legislation should it be needed.

My noble friend Lady Neville-Rolfe asked what the evidence will cover. As I have said, this was discussed at the extraordinary meeting of the National Retail Crime Steering Group on 12 February. We want to take into account the group’s feedback and to use the call for evidence to strengthen our evidence about the scale and severity of the issue. As she has said, we hear lots of anecdotal horror stories, but we want to look at the broad evidence. Any abuse of a shop worker while doing their job is absolutely unacceptable, but we want to understand in more detail how frequently people are the victims of serious crime. I turn to the point made by my noble friend Lord Goschen about what sorts of businesses we are talking about. The scope and the direction will be led by the National Retail Crime Steering Group.

We want to use the findings to consider what more we can do to ensure that shop workers have the protections they deserve. That is at the heart of the noble Lord’s point. If the call for evidence shows that there is a gap in the existing criminal law, we will give that serious consideration. The group also discussed the options for strengthening the existing workplan. It includes actions to support staff who report incidents to the police and to improve police recording. We have committed to providing £50,000-worth of funding for a sector-led communications campaign to help raise awareness. We appreciate that there will be a huge spectrum of awareness across the sector.

I am grateful to noble Lords for their work in raising awareness of the challenges faced by shop workers and indeed I am grateful to the representatives of USDAW who have taken the time to articulate these issues to me. I hope that our commitment to exploring this issue further through the call for evidence and the wider work being taken forward by the Home Office will reassure the noble Lord that we are taking the concerns raised about this issue very seriously. The fact remains, though, that until we have had the call for evidence and we have studied the responses, there is not sufficient existing evidence to support the need for any new offence as provided for in the amendment.

I hope that the noble Lord will be content to withdraw his amendment. I know that in taking time to raise these concerns with me that he is not trying to be troublesome. He is addressing a real concern from the retail industry and I hope that we can work together on this.

[Baroness Neville-Rolfe]

I wonder whether my noble friend could comment on who sits on the National Retail Crime Steering Group if that is going to be important in carrying forward this work. I presume that the retailers’ unions will be represented, along with the police and other relevant people. If she is not able to answer the question, it would be helpful to have that information by way of follow-up because I think that there is a consensus across the House that it would be good to find a way forward in this area. However, we will want to make sure that the legislation covers the right areas and carries the right penalties.

[Baroness Williams of Trafford]

Representatives of USDAW are part of the steering group along with staff from large retail organisations right down to small shop owners. It is important that we have a wide range of representation from organisations so that we can see the full spectrum of exactly what issues are involved. I am aware of my noble friend’s past employment with Tesco. Somehow I had assumed that a big organisation would suffer less abuse because the shops are covered by security officers, but that is not necessarily the case. I have witnessed this myself in big retail organisations, and to improve our understanding, we need representation from across the spectrum of those retail companies.

[Lord Hogan-Howe]

I am minded to support the amendment, because the case is a good one for shop workers. I just wonder whether, if the Government are not minded to support an explicit offence—whether for shop workers or any retail worker who is enforcing a licence—in legislation in whatever form, the Sentencing Council could consider that as an aggravating factor in the offences that already exist. This could relate to many other types of offence, so we may be able to support the people who need supporting without needing all the legislation to change to cover the different types of licensee who need that support.

[Baroness Williams of Trafford]

The noble Lord makes a good point about aggravated offences—and of course, that can be explored through the call for evidence. As he will know, it is already an offence to abuse or attack someone who is serving the public. USDAW wanted something specifically related to shop workers, and that is one of the suggestions that could be taken forward—in fact, it may well be taken forward—to the call for evidence.

[Lord Kennedy of Southwark]

My Lords, I thank everyone who has spoken in the debate. There was a lot of support around the House for the issues that I am bringing forward, and I am grateful to all noble Lords who have spoken. We can all agree that no one should be threatened or abused while doing their lawful business and earning a living. That is important. The noble Viscount, Lord Goschen, asked why we particularly want this now. It is because in the Bill we are putting burdens on shop workers, who risk going to prison if they do not enforce its provisions. That is why we have responded. We are giving them particular offences that they can commit, but we also want them to have further protection in relation to these very serious products.

I thank the noble Lord, Lord Paddick, for his support, although it was qualified. I am sorry if I caused him concern; I never intended the sentence to be custodial, but when I looked at it I realised I would have to put that option down. If nothing else, that highlights the need to review how we impose custodial sentences on people. In many cases we need interventions, but we do not want to risk someone going to prison at that point, so I hope we can come back to that at a later stage.

I also thank the Minister for her very detailed response, and for the fruitful meeting that she had with USDAW representatives and myself recently. I think she accepted that they made their case very well, that they know what they are talking about in representing their members, and that they understand the world of retail.

It is important that we get this right. I accept the point that there will be a call for evidence. That will be a second call for me, because I am going to keep pursuing the noble Lord, Lord Bourne, about the rogue landlords database, and I am also pursuing the noble Baroness about the protection of shop workers, and asking when we are going to get legislation on that subject. These are two important matters, and I shall carry on with them, because we cannot let such things be forgotten. We need to ensure that people going about their lawful business and earning a living are protected. Unfortunately, many shop workers—we heard that it is 280 a day—get assaulted in the UK. That is utterly disgraceful, and I hope the evidence that comes in will support the need for legislation. The noble Lord, Lord Hogan-Howe, made an important point about sentencing guidelines and the Sentencing Council, and there may be something we can do that would not need legislation.

I am not going to test the opinion of the House. I am tempted to, but I have listened to the debate and decided, in view of the way the Minister has engaged with us, to withdraw the amendment.

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Moved by

[Baroness Williams of Trafford]

35: After Clause 13, insert the following new Clause—
“PART 1AKNIFE CRIME PREVENTION ORDERSKnife crime prevention orders made otherwise than on convictionKnife crime prevention order made otherwise than on conviction
(1) A court may make a knife crime prevention order under this section in respect of a person aged 12 or over (the “defendant”) if the following conditions are met.(2) The first condition is that a person has, by complaint to the court, applied for a knife crime prevention order under this section in accordance with section (Requirements for application for order under section (Knife crime prevention order made otherwise than on conviction)).(3) The second condition is that the court is satisfied on the balance of probabilities that, on at least two occasions in the relevant period, the defendant had a bladed article with them without good reason or lawful authority—(a) in a public place in England and Wales,(b) on school premises, or(c) on further education premises.(4) In subsection (3) “the relevant period” means the period of two years ending with the day on which the order is made; but an event may be taken into account for the purposes of that subsection only if it occurred after the coming into force of this section.(5) Without prejudice to the generality of subsection (3), a person has good reason for having a bladed article with them in a place mentioned in that subsection if the person has the article with them in that place—(a) for use at work,(b) for educational purposes,(c) for religious reasons, or(d) as part of any national costume.(6) The third condition is that the court thinks that it is necessary to make the order—(a) to protect the public in England and Wales from the risk of harm involving a bladed article,(b) to protect any particular members of the public in England and Wales (including the defendant) from such risk, or(c) to prevent the defendant from committing an offence involving a bladed article. (7) A knife crime prevention order under this section is an order which, for a purpose mentioned in subsection (6)—(a) requires the defendant to do anything described in the order;(b) prohibits the defendant from doing anything described in the order.(8) See also—(a) section (Provisions of knife crime prevention order) (which makes further provision about the requirements and prohibitions which may be imposed by a knife crime prevention order under this section),(b) section (Requirements included in knife crime prevention order etc) (which makes further provision about the inclusion of requirements in a knife crime prevention order under this section), and(c) section (Duration of knife crime prevention order etc) (which makes provision about the duration of a knife crime prevention order under this section).(9) Section 127 of the Magistrates’ Courts Act 1980 (time limits) does not apply to a complaint under this section.(10) In this section—“court”—(a) in the case of a defendant who is under the age of 18, means a magistrates’ court which is a youth court, and(b) in any other case, means a magistrates’ court which is not a youth court;“further education premises” means land used solely for the purposes of—(a) an institution within the further education sector (within the meaning of section 91 of the Further and Higher Education Act 1992), or(b) a 16 to 19 Academy (within the meaning of section 1B of the Academies Act 2010),excluding any land occupied solely as a dwelling by a person employed at the institution or the 16 to 19 Academy;“public place” includes any place to which, at the time in question, the public have or are permitted access, whether on payment or otherwise;“school premises” means any land used for the purposes of a school, excluding any land occupied solely as a dwelling by a person employed at the school; and “school” has the meaning given by section 4 of the Education Act 1996.”Member’s explanatory statement
This Clause and the other amendments of the Minister to insert new Clauses after Clause 13 would make provision for knife crime prevention orders and interim knife crime prevention orders imposing requirements and prohibitions on defendants and subjecting them to certain notification requirements.

[Baroness Williams of Trafford]

My Lords, the government amendments in this group introduce knife crime prevention orders. Noble Lords will recall that these amendments were debated in Grand Committee on 6 February but were withdrawn because it was clear that they did not attract universal support, as the procedural rules in Grand Committee require. The government amendments before us today are the same as those debated in Grand Committee. Given that we have already had a substantial debate on these new civil orders, I do not intend to go through every aspect of them. However, it is worth stating again why the Government have brought forward these measures and to summarise how they will work.

All noble Lords will appreciate that we face a significant increase in knife crime at present, particularly in London but also in other major cities and across the country. It is sad to say that hardly a day goes by without further horrific examples of the devastation that such crimes cause, not only to individual families but to entire communities. We must do everything we can to stop this increase in violent crime.

The latest police recorded crime figures published by the Office for National Statistics in January for the year ending September 2018 show that there have been close to 40,000 knife-related offences. This is an 8% increase compared to the previous year. The number of homicides where a knife or sharp instrument has been used has increased by 10% in the last year to 276 offences. Of all recorded homicides in the latest data, more than four in 10 involved a knife or a sharp instrument. Police-recorded offences involving the possession of an article with a blade or point rose by 18% to approaching 20,000 offences in the year ending September 2018. This rise was consistent with increases seen over the past five years and is the highest figure since the series began in March 2009.

It is vital that the police have the powers they need to prevent knife crime and protect the public from the devastating effects of violent crime on our streets. When we prosecute young people for knife crime, it is already too late for families when their sons and daughters are lying in hospital or dead on the street. This is tearing some of our communities apart and if there are measures available that might help to tackle this issue, then we must not hesitate to put them in place.

These new civil prevention orders will enable the police to more effectively manage those at risk of being drawn into trouble and help steer them away from crime, and the Government make no apologies for bringing them forward. The orders are aimed at three groups of people: young people who have been carrying a knife; habitual knife carriers of any age; and those who have been convicted of violent offences involving knives.

In the case of young people, the police may have intelligence that a young person routinely carries a knife but for a variety of reasons they have been unable to charge them with a possession offence. Before risky behaviour escalates, a KCPO, as they are called, could be in place to divert the person away from a life of prolific offending.

As I have indicated, people who the police deem to be habitual knife carriers could also be subject to a KCPO. This would include people who may have previous convictions for knife crime or where the police have intelligence that they regularly carry knives. The KCPO would enable the police to manage the risk of future offending in the community. This is the cohort that the police see as their main target for these orders. They estimate that there are about 3,000 habitual knife carriers across England and Wales, although that is not to say that all that cohort would be made subject to a KCPO.

It may be helpful if I explain briefly how the orders will work. An application for a KCPO can be made by a relevant chief officer of police to a magistrates’ court or, in the case of young people, the youth court. A court may make an order only if it is satisfied that the defendant had a bladed article without good reason in a public place or education premises on at least two occasions in the preceding two years, and that the order is necessary to protect the public or prevent the defendant committing an offence involving knives. A KCPO can also be made on conviction where the defendant is convicted of a relevant offence and, again, the court thinks the order is necessary to protect the public or prevent the defendant committing an offence involving knives.

A KCPO may require a defendant to do anything described in the order and/or prohibit the defendant doing anything described in the order. The KCPO can include any reasonable prohibition or requirement which the court is satisfied is necessary, proportionate and enforceable. An order could therefore include things such as curfews or restrictions on going to a particular place.

A KCPO can also include positive requirements, and we think these are particularly important. A positive requirement could be attending some form of knife awareness training or a programme to move young people away from knife crime. Some of these programmes are already being funded under the serious violence strategy, and we are keen to build on the excellent work that is already under way to help divert young people from violent crime and is often provided by groups which have first-hand experience of dealing with knife crime in their communities. Where a KCPO imposes such a requirement it must specify a person who is responsible for supervising compliance with the requirement. For instance, if the requirement is attendance at a knife awareness intervention, the person designated to supervise compliance may be the youth worker providing the intervention.

KCPOs will have a maximum duration of two years and must be reviewed by the courts after 12 months. KCPOs issued to under-18s will be expected to be subject to more regular reviews, an issue which we will address in guidance. There are provisions for variation, renewal or discharge of KCPOs on application by the defendant or the police. There are also provisions for appeal against the order. Breach of the order, without reasonable excuse, is a criminal offence subject to a maximum penalty of two years’ imprisonment.

Young people are clearly an area of great concern to a number of noble Lords. The police tell us that the age at which people carry knives is getting lower. We also know from hospital data and from the police that younger and younger children are involved in knife crime as both victims and perpetrators. If we are serious about tackling the epidemic of knife crime on our streets, the measures we take must apply to young people.

I must point out that the civil orders available for dealing with sex offending apply to children as young as 10 and last for up to five years rather than the maximum of two years available under KCPOs. Likewise, the maximum penalties are up to five years in prison rather than the two years we have with KCPOs. I know that noble Lords might argue that sex offending is different and somehow more serious. I am not sure that argument is true given the number of knife-related deaths that we are now witnessing in our cities.

I know that noble Lords will also argue that it would be better to go the anti-social behaviour injunction route, which of course applies to children as young as 10. The argument here is that having contempt of court rather than a criminal offence for breach would make the orders more palatable because it would mean that children would not get a criminal record. The advice that we have had from police, some of which we heard yesterday at the round table, is I think advice that we should listen to very carefully. It is that making it a criminal offence to breach an order is important if we want the order to be taken seriously. I do, however, understand concerns about the application of these orders to young people. That is why we set the minimum age of 12, and that is why youth offender teams will need to be consulted on any orders against defendants under the age of 18. It is why we have said we will consult publicly on the guidance with community groups and youth organisations and others before these orders are brought into force.

This Government are determined to do all they can to protect the public and keep people safe. We must seize every opportunity to end the senseless cycle of violent crime that is corroding our streets. Knife crime prevention orders are not the complete answer to violent crime, but they most certainly will help. I beg to move.

[Lord Paddick]

My Lords, I said a lot about knife crime prevention orders in Committee. Tonight I am going to focus on pre-conviction knife crime prevention orders. Despite the Government’s claims to the contrary, they will result in many young people being criminalised instead of being diverted away from the criminal justice system. How can we be so sure? Because they are almost a carbon copy of anti-social behaviour orders, which did exactly that—criminalised swathes of young people for breaching a civil order imposed on them on the balance of probabilities but where a breach of the order was a criminal offence, exactly the same as these provisions.

A court has to be satisfied only on the balance of probabilities that, on at least two occasions, the defendant had a bladed article with them without good reason or lawful authority in a public place on school or further education premises. If they were caught in possession of a knife, they could be prosecuted. This is not about young people being stopped and searched and being found with a knife. This is about hearsay evidence, information from informants, the police being tipped off that someone is a knife carrier. An interim order can even be imposed without the defendant’s having the chance to put his side of the story. Imposed on the balance of probabilities, a breach of the conditions can result in a criminal record and up to two years in prison.

These are anti-social behaviour orders reinvented. They are primarily aimed at young people, as young as 12. It may have been a long time ago, but we were all young once. Young people make mistakes; they can be reckless, forgetful, mischievous. The orders would impose, on people who are more chaotic than responsible adults, conditions such as: being at a particular place between particular times on particular days; being at a particular place between particular times on any day; presenting themselves to a particular person at a place where they are required to be; participating in particular activities between particular times on particular days; prohibiting them from being in a particular place with particular people; participating in particular activities; using particular articles or having those articles with them. An order that imposes prohibitions can include exemptions to those prohibitions. They have to tell the police within three days if they use a name which has not previously been notified to the police, or they decide to live away from their home address for more than a month. What does,

“uses a name which has not previously been notified to the police”,

even mean? What if their schoolmates give them a nickname that they have become known by? Do they breach the order if they use that name? The young person is going to need a PA and carry a list of conditions with them at all times which they have to constantly refer to, to make sure that they do not breach the order.

Children are children. These orders can be imposed on young people who have never been in trouble with the police and have never been convicted of a criminal offence, and they could be sentenced to custody because they did not turn up for football practice as the order required them to do or because they were told not to associate with certain people but those people kept following them around. It would be easy for me or other noble Lords, let alone a child, to breach some of these conditions if they were imposed on us, and these orders would last a minimum of six months and up to two years.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, knife crime prevention orders are an attempt by the Government to deal with the horror of knife crime. Hardly a week goes by without a report of a young life lost. We see parents on our television screens in the depths of unimaginable despair as they try to understand what has happened to their child. These are things that no one should have to experience: a child, a loved one, murdered. It is also clear that the perpetrators of these crimes destroy their own lives when they are caught and punished. We must ask ourselves: have we as a society failed these children and young people as well?

Teaching right from wrong starts in the home, of course, but other agencies also play their part as children go to school and interact with the world around them. The destruction of Sure Start by the Government was a huge mistake—it was destroyed at the altar of austerity. Services for young people have been devastated. There are no youth clubs, no youth workers in any great numbers. Where children are not in loving homes and no one is there to help them, who becomes their family? The risk is that it will be the drug dealer, the gangs, and the people who exploit and abuse them, who become their family. You are part of a gang; there are people who are in other gangs. You have your territory and they have theirs. I was horrified to learn recently that there are young people living in Camberwell, an area of Southwark where I went to school, who are too scared to cross Camberwell New Road and walk into Lambeth. I could not believe it but it is true: they have never been into the borough of Lambeth. That is another gang’s territory and if they go there they risk being stabbed and killed.

When we debated this in Grand Committee, I asked why COBRA has not been convened to deal with this national emergency. If there is a flood, or other emergency, it is convened, so why not to stop this appalling loss of life and destruction of young lives and families? Why not try to deal with this as a national emergency? You could get the police, the Local Government Association, the Home Office and every other relevant agency around the table to look at solutions to these tragic, devastating incidents. I do not think it is over the top to stop young people losing their lives.

I accept that there is support for these orders. I think I am correct in saying that the Commissioner of the Metropolitan Police supports them, as does the Mayor of London. However, concerns have also been raised about the criminalising of children. That concern has been expressed tonight by the noble Lords, Lord Paddick and Lord Ramsbotham, the noble Baroness, Lady Meacher, my noble friend Lord Ponsonby and other noble Lords. If these orders are to come into force, we need a proper pilot scheme, with proper evaluation, and then, having considered the report, a vote in both Houses of Parliament on whether to either roll them out fully or not continue with them. This is the subject of Amendment 55 in my name. Amendment 63, which I am grateful to the noble Lord, Lord Paddick, for supporting, sets out the report to be laid before Parliament before these come into effect.

There are legitimate concerns about the way this proposal has been introduced so late in the day, the lack of consultations with relevant organisations and the lack of scrutiny in the other place where there was none at all because it was introduced after the Bill had left that House. Although I believe we do scrutiny better in this House, the elected House should have had its opportunity and the fact that it has not is regrettable. Getting a series of Lords amendments to debate in the other place is not the same as a Bill Committee, with evidence being taken and the other place going through its proper parliamentary procedures. I think this proposal deserves that.

A number of key points have been raised by noble Lords around the House. The Minister needs to respond carefully before we decide whether to vote on these matters.

[Baroness Williams of Trafford]

I thank all noble Lords for their contributions. I particularly thank the noble Lord, Lord Kennedy, for his point about responding carefully—I certainly shall, because this is a very serious issue.

Before I respond to the amendments from the noble Lords, Lord Kennedy and Lord Paddick, and other points raised in the debate, I want to emphasise again that the purpose of these orders is not to punish those who have been carrying knives but to divert them away from that behaviour and to put in place measures that will stop them being drawn into more serious violent offending. The noble Lord, Lord Ponsonby, quoted my honourable friend Vicky Atkins, who said that they are there to provide that wraparound care. That is precisely their intention—not to draw children into criminality. The noble Lord, Lord Paddick, said that a public health approach is needed, and I absolutely agree with him. My right honourable friend the Home Secretary precisely outlined his intention to pursue a public health approach to this issue.

The other important thing to note about these orders is that they should not be seen in isolation, and they will not in and of themselves provide all the answers. They need to be seen in the context of the comprehensive programme of action set out in our Serious Violence Strategy, which we published last year.

We must try and stop the journey that leads young people from carrying a knife for self-protection to serious violence. We should not focus on picking up the pieces but do all we can to stop those lives being broken in the first place. I am sure noble Lords will agree that prosecution for young children is not always the most appropriate response, and we do not want them drawn into the criminal justice system if we can possibly help it. KCPOs will enable the police and others to address the underlying issues and steer young people away from knife crime through positive interventions.

The amendments contain important safeguards to ensure that KCPOs are not used inappropriately against young people under the age of 18. In particular, the amendments require the police to consult the relevant youth offending team before an order is made and, once made, an order must be reviewed by the courts after 12 months. We fully expect that the courts will provide for more regular reviews where a KCPO is issued to a person under the age of 18. But we remain of the view that the breach of an order should be a criminal offence if these orders are to be effective. This will mean that those on orders understand how important it is to comply with the restrictions or requirements imposed by the court.

I turn now to the amendments from the noble Lord, Lord Kennedy. These amendments tie into government Amendment 52 which provides for, and indeed mandates, the piloting of KCPOs. That these orders should be the subject of a pilot before they are rolled out nationally is clearly a sensible approach, although I take the point of the noble Lord, Lord Hogan- Howe, who would just like to see them rolled out. But these are new orders and it is important that we get them right. Piloting will mean that the police can try out the orders in a few areas, and that they can build experience and learn lessons from operating them for an initial period before they are made available to other police forces. I would expect the pilot areas to include one or more London boroughs, but they might also include other cities with high knife crime. By their nature, the pilot areas will be limited and I hope that assurance deals with Amendment 60 in the name of the noble Lord, Lord Paddick.

Amendment 52 further requires a report to be laid before Parliament on the outcome of the pilot. This will allow Parliament to consider whether these orders are effective and whether they are likely to deliver the intended benefits. It is important that this report is as comprehensive as possible and I am sure that it will include at least some of the information specified in Amendments 57 and 63. By its nature, the report required by Amendment 52 will be a one-off, but I fully expect that once rolled out, KCPOs will be the subject of ongoing scrutiny. There are existing mechanisms for this, such as parliamentary Questions and debates, an inquiry by the Home Affairs Select Committee and the normal process of post-legislative review. I am therefore not persuaded that the new orders should be subject to an annual reporting requirement, as set out in Amendment 63.

Amendment 55 would require the national rollout of KCPOs to be subject to the approval of both Houses of Parliament. I think it is the intention of Amendment 107 to require that regulations provided for the pilots should also be subject to prior parliamentary approval. Again, I am not persuaded of the case for this. The government amendments adopt the standard approach of providing for KCPO provisions, including the pilots, to be brought into force by regulations made by the Home Secretary. In the usual way, such regulations are not subject to parliamentary procedure and I see no reason to adopt a different approach here. Once Parliament has approved the principle of the provisions by enacting them, commencement is then properly a matter for the Executive.

Amendment 52 enables the piloting of the provisions for one or more specified purposes as well as in one or more specified areas. Our intention is to have area-based pilots rather than purpose-based pilots, but we might need some combination of the two. As I have said, our intention is to pilot these provisions principally in part of the Metropolitan Police area, but potentially also in one or two other police force areas. In doing so, it might be necessary to commence certain provisions more widely.

The noble Lord, Lord Hogan-Howe, asked about the situation where an application on conviction is made in the pilot area, but the subject of the order then moves to another part of the country. To cater for such circumstances, it might be necessary to give all courts in England and Wales jurisdiction to vary or discharge, but not to make, an order.

Turning to other issues raised in this group, the noble Lord, Lord Paddick, asked about a consultation that is going to be done as part of the pilot. He also asked about someone who is not guilty of a crime but is given a KCPO. KCPOs are available on application by the police where they have evidence that the individual has carried a knife on two occasions in the preceding two years. If an individual is acquitted but there is evidence that they have carried a knife, an application can be made. It will be for the magistrate or youth court to determine whether the test is met and whether a KCPO is necessary to prevent knife offending or to protect the public.

The noble Baroness, Lady Meacher, asked how many police forces wanted KCPOs and how many do not, which is a reasonable question. The National Police Chiefs’ Council, which represents all 43 police forces in England and Wales, supports KCPOs. In addition, Assistant Commissioner Duncan Ball, of the National Police Chiefs’ Council, said he welcomed the new powers announced by the Home Office, and the APCC chair likewise.

The noble Lord, Lord Hogan-Howe, asked why we have not given a search power. We did not consider the power of stop and search without reasonable grounds necessary because there are existing powers to stop and search individuals where there are reasonable grounds to suspect them of carrying a knife. We think it appropriate for the Police and Criminal Evidence Act 1984 protection to continue to apply to the subjects of these orders.

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[The Earl of Listowel]

My Lords, will the Minister ensure that in any pilots, an assessment will be made of the impact of KCPOs on young people in care who are looked after by their local authority and care leavers?

[Baroness Williams of Trafford]

The noble Earl is right to point out that children in care are the most vulnerable people in all the areas we look at. Of course, they will be a prime consideration because they are the most likely to be vulnerable to the sorts of things we are talking about. Local authorities, as their corporate parents, are responsible for them.

Finally, the Government do not pretend for one moment that KCPOs are the magic wand to answer all the problems of knife crime. I emphasise that they are one tool, but an important one, to end the scourge affecting young people, communities and their families. With that, I beg to move.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

36: After Clause 13, insert the following new Clause—
“Requirements for application for order under section (Knife crime prevention order made otherwise than on conviction)
(1) An application for a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) may be made only by—(a) a relevant chief officer of police,(b) the chief constable of the British Transport Police Force, or(c) the chief constable of the Ministry of Defence Police.(2) For the purposes of subsection (1)(a) a chief officer of police is a relevant chief officer of police in relation to an application for a knife crime prevention order in respect of a defendant if—(a) the defendant lives in the chief officer’s police area, or(b) the chief officer believes that the defendant is in, or is intending to come to, the chief officer’s police area.(3) An application for a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) made by a chief officer of police for a police area may be made only to a court acting for a local justice area that includes any part of that police area.(4) Subsections (5) and (6) apply if a person proposes to apply for a knife crime prevention order under section (Knife crime prevention order made otherwise than on conviction) in respect of a defendant who—(a) is under the age of 18, and(b) will be under that age when the application is made.(5) Before making the application the person must consult the youth offending team established under section 39 of the Crime and Disorder Act 1998 in whose area it appears to the person that the defendant lives.(6) If it appears to the person that the defendant lives in the area of two or more youth offending teams, the obligation in subsection (5) is to consult such of those teams as the person thinks appropriate.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

52: After Clause 13, insert the following new Clause—
“Piloting
(1) The Secretary of State may exercise the power in section 46(1) so as to bring all of the provisions of this Part into force for all purposes and in relation to the whole of England and Wales only if the following conditions are met.(2) The first condition is that the Secretary of State has brought some or all of the provisions of this Part into force only—(a) for one or more specified purposes, or(b) in relation to one or more specified areas in England and Wales.(3) The second condition is that the Secretary of State has laid before Parliament a report on the operation of some or all of the provisions of this Part—(a) for one or more of those purposes, or(b) in relation to one or more of those areas.(4) Regulations under section 46(1) which bring any provision of this Part into force only for a specified purpose or in relation to a specified area may—(a) provide for that provision to be in force for that purpose or in relation to that area for a specified period,(b) make transitional or saving provision in relation to that provision ceasing to be in force at the end of the specified period.(5) Regulations containing provision by virtue of subsection (4)(a) may be amended by subsequent regulations under section 46(1) so as to continue any provision of this Part in force for the specified purpose or in relation to the specified area for a further specified period.(6) In this section “specified” means specified in regulations under section 46(1). (7) References in this section to this Part do not include section (Guidance) or this section (which by virtue of section 46(5)(za) and (zb) come into force on the day on which this Act is passed).”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

61: After Clause 13, insert the following new Clause—
“Consequential amendments
(1) In section 3(2) of the Prosecution of Offences Act 1985 (functions of the Director of Public Prosecutions) after paragraph (ff) insert—“(fg) to have the conduct of applications for orders under section (Knife crime prevention order made on conviction) of the Offensive Weapons Act 2019 (knife crime prevention orders made on conviction);”.(2) In the Criminal Legal Aid (General) Regulations 2013 (SI 2013/9), in regulation 9 (criminal proceedings) after paragraph (ub) insert—“(uc) proceedings under Part 5 of the Offensive Weapons Act 2019 in relation to a knife crime prevention order or an interim knife crime prevention order;”.(3) The amendment made by subsection (2) is without prejudice to any power to make an order or regulations amending or revoking the regulations mentioned in that subsection.”Member’s explanatory statement
See the explanation of the Minister's amendment to insert the first new Clause after Clause 13.

Offensive Weapons Bill

Baroness Williams of Trafford Excerpts

Thursday 21st February 2019 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1, Schedule 1, Clauses 2 to 35, Schedule 2, Clauses 36 to 47, Title.

Motion agreed.

Returning Jihadists: Treason Act

Baroness Williams of Trafford Excerpts

Thursday 21st February 2019 Lords Chamber

[Lord Alton of Liverpool]

To ask Her Majesty’s Government whether they intend to update the Treason Act 1351 to prosecute returning jihadists.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, to prosecute terrorists for treason risks giving their actions a political status or glamour that they do not deserve, rather than treating them as merely criminals. The Government have just passed the Counter-Terrorism and Border Security Act, which updates terrorism offences and introduces new powers to reflect the threat we face today from foreign terrorist fighters. This will provide the police and the intelligence services with the powers they need to protect the public.

[Lord Alton of Liverpool (CB)]

My Lords, while no one would want to glamorise any of the crimes that we are talking about here, nevertheless does the Minister not agree that those who have justified the murder of other British citizens through, for instance, the bombing of the Manchester Arena in 2017 and people who have taken up arms or given succour to those who have targeted British forces and civilians have betrayed this country, its people, its values and its laws?

Given the conflicting conclusions of the Law Commission reviews of 1977 and 2010, is it not time to provide a solid legal basis rather than the 1351 Act for prosecuting hundreds of returning jihadists, perhaps in line with the conclusions of the Policy Exchange paper by Professor Richard Ekins of the University of Oxford and others, with a foreword by the noble and learned Lord, Lord Judge, which I have sent to the Minister? Would not this, and the creation of a regional tribunal to prosecute for crimes of genocide, demonstrate our unerring and passionate belief in the rule of law, and that those responsible for heinous crimes cannot expect to evade prosecution?

[Baroness Williams of Trafford]

I totally agree with the noble Lord that anyone committing atrocities such as the Manchester attack—I was in Manchester at that time—should not escape justice. I commend the Policy Exchange paper, and I think that the noble Lord would agree that the Home Secretary has said that he will review all the laws we have at hand. However, if the noble Lord looks at the recent counterterrorism Bill which has now become an Act, I am sure that he will agree that the new powers available in that Act might in the future prevent some of the terrible things that we have seen in recent months. On a regional tribunal, I am not sure how practicable that would be given the situation in some parts of the region.

[Lord West of Spithead (Lab)]

My Lords, I share the view of the noble Lord, Lord Alton. I do not believe that this would glamorise the loathsome things that have been done by these people and I think that it is appropriate that as a nation we show how repugnant and appalling this sort of behaviour is. When I was a Minister, at times it was very difficult to get into court people who should have been tried. This seems to be a way that it could be done. Might it not be easier to update the treason law and show these people to be traitors, which is something that our nation really believes they are?

[Baroness Williams of Trafford]

My Lords, I hope the noble Lord agrees that the recent legislation has given more powers to the courts to prosecute. I am pleased that the noble Lord supported that Bill through its passage. I agree that the Treason Act 1351 is rather old. It was updated relatively recently—in 1861, I think—but whether a prosecution is justified in individual cases, and whether treason is the appropriate charge, will be a matter for the courts. I am not dismissing it. The Home Secretary has said that he will consider the matter—we keep all laws under review—but whether that charge is brought will be a matter for the courts.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, during the passage of the Counter-Terrorism and Border Security Bill, to which my noble friend referred, my noble friend Lord Faulks and I tabled an amendment to the Treason Act 1351 to try to give the Government wider powers to deal with the fast-moving challenges to our security that now exist. In asking that the amendment be withdrawn—which it was—my noble friend said,

“in the knowledge that there is ongoing work in the Home Office to examine whether there are further gaps in our law, and in order to help us counter hostile state activity”.—[Official Report, 31/10/18; col. 1382.]

Could my noble friend update the House on the progress of that work?

[Baroness Williams of Trafford]

My noble friend is right to raise this matter because we have to constantly keep our laws under review to keep up with the fast-moving methods by which terrorists will seek to destroy the unity of this country. Laws are kept under review. Noble Lords have talked about an espionage Bill and a treason Bill. Certainly the CT Bill in which my noble friend took part was significant in updating some of our laws.

[Lord Paddick (LD)]

My Lords, yesterday the Minister implied that it was difficult to prosecute those involved with ISIS as we had, in effect, no extradition arrangements with Syria. That is why the Government had to deprive people of their British citizenship. Many of these people want to return to the UK but the Government are preventing them from returning to face justice by depriving them of their citizenship. Is the Government strategy confused or is it just me?

[Baroness Williams of Trafford]

It might be the noble Lord because it is difficult to prosecute people in Syria, where we have no consular access. People have been prosecuted when they come back to this country and have been put into programmes such as Channel to try to rehabilitate them. There are a number of different remedies available to the Government and the Home Secretary to bring people to justice.

[Lord Cormack (Con)]

My Lords, is not “a fast-moving Home Office” the ultimate oxymoron?

[Baroness Williams of Trafford]

I do not think so, my Lords.

Citizenship Status

Baroness Williams of Trafford Excerpts

Wednesday 20th February 2019 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, with the leave of the House, I will repeat the response by my right honourable friend the Home Secretary to an Urgent Question in another place. The Statement is as follows:

“Mr Speaker, to keep this country safe we must be prepared to make tough decisions. As I told the House on Monday, there must be consequences for those who back terror. More than 900 people travelled from the UK to engage with the conflict in Syria and Iraq. At least 20% have been killed in the region and around 40% have returned.

They have all been investigated and I can reassure this House that the majority have been assessed to pose no, or a low-security risk. Those who stayed include some of the most dangerous—including many who supported terrorism, not least those who chose to fight, or raise families, in the so-called caliphate. They turned their back on this country to support a group that butchered and beheaded innocent civilians, including British citizens; that tied the arms of homosexuals and threw them off the top of buildings; and that raped countless young girls, boys and women.

I have been resolute that where they pose any threat to this country, I will do everything in my power to prevent their return. This includes stripping dangerous individuals of their British citizenship. This power is used only in extreme circumstances, where conducive to the public good. Since 2010, it has been used around 150 times against people linked to terrorism or serious crimes.

We, of course, follow international law. An individual can be deprived of British citizenship only where it will not leave that individual stateless—where they are a dual national or, in some limited circumstances, have the right to citizenship elsewhere. It would not be right to comment on an individual case. But I can say that each one is carefully considered on its own merit, regardless of gender, age or family status.

Children should not suffer, so if a parent loses their British citizenship it does not affect the rights of their child. Deprivation is a powerful tool that can be used only to keep the most dangerous individuals out of this country. We do not use it lightly. But when someone turns their back on our fundamental values and supports terror, they do not have an automatic right to return to the UK. We must put the safety and security of our country first and I will not hesitate to act to protect it”.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the Minister for repeating the Answer to the Urgent Question asked in the other place today. I agree that there must be consequences for those who back and commit acts of terrorism. Where individuals are British citizens suspected of committing offences, particularly if they were born in the United Kingdom, it seems to me that we have a responsibility: to question them; to investigate their actions; where the evidential tests are met, to put them on trial; and, where a jury convicts, to punish them in accordance with the law.

I am sure that the Minister will tell me that the actions of the Government to deprive someone of their nationality have been done in a way that does not breach Article 15 of the Universal Declaration of Human Rights. How will this assist in bringing someone who has committed serious crimes to justice?

[Baroness Williams of Trafford]

I can confirm to the noble Lord that these decisions are compatible. All those deprived of citizenship have been deprived on the basis that such an action was compatible with Articles 2 and 3 of the ECHR. On the point about bringing someone back and bringing them to justice, if someone is in Syria, we do not have consular support there, and one would question how we could do that. There is no infrastructure in place that makes it possible to go into Syria. As my right honourable friend the Home Secretary said, he does not want to put Foreign Office or Home Office officials’ lives, or anyone’s lives, in danger by asking them to go out to Syria.

[Baroness Hamwee (LD)]

Does the Minister agree that it would be conducive to the public good—the criterion applied here—to bring back someone who could tell the authorities here how she was recruited? We could learn from her. The recently retired Independent Reviewer of Terrorism Legislation today made the point that some people who have come back from terrorist activities have proved the best interlocutors in persuading young people away from radicalisation.

May I ask about the child? The Minister said—as was said on Monday—that an individual case cannot be discussed. However, that seems to be exactly what the Home Secretary has been doing. The Minister also said that the rights of the child will not be affected. What does that mean in practical terms?

[Baroness Williams of Trafford]

My Lords, on whether it would be conducive to the public good if someone could be brought back and rehabilitated in this country, or could tell the British authorities what was going on and perhaps act as a conduit for good, without talking about a specific case, there are of course examples of people who have come back here and been rehabilitated through Channel programmes. That is absolutely correct.

Turning to the rights of the child, if any child is a British citizen, that child’s parents having been deprived of their citizenship does not affect the child’s citizenship.

[Baroness Berridge (Con)]

My Lords, I am grateful to the Minister for the clarification of the legal status of any children of those deprived of their British citizenship. Will she clarify what exactly the duties of the Home Secretary are? If he is reviewing information that may be confidential but not classified, which reveals safeguarding issues in relation to the children of people who have been deprived of their citizenship, what are his responsibilities to refer information to other authorities so that the children can be protected in situations where their interests and safety are not the same as those of the parent who is having their citizenship withdrawn? It is important to know what the processes are for those children and what the safeguarding duty of the Home Secretary is.

[Baroness Williams of Trafford]

My noble friend asks a very good question. Safeguarding is paramount when considering the rights of a child. It is a very difficult situation if a child is in a country where we do not have any consular access and therefore no means of helping them. Under the UN Convention on the Rights of the Child, we absolutely have a serious obligation—and we take it very seriously. If a child is in a war-torn country, however, those obligations are very difficult to fulfil.

[Lord Hylton (CB)]

My Lords, I detest al-Qaeda, ISIS, al-Nusra and their backers as much as anyone in this Chamber or outside. Nevertheless, we must realise that the deprivation of citizenship is an executive act —a very severe penalty that can be imposed by a Minister without a careful court hearing and judicial decision. The Secretary of State may be tempted to appear tough and uninfluenced by his personal background, but will Her Majesty’s Government assure us that, in future, misguided volunteers and spouses will not be stripped of citizenship until they have returned home and received legal advice and representation to allow their case to be argued fully?

[Baroness Williams of Trafford]

I am afraid I cannot give the noble Lord that assurance; it is difficult to do so if someone insists on remaining in a country where we have no consular access. It is also very difficult to give a general assurance without knowing the details of an individual case. In making these extremely difficult decisions, the Home Secretary takes all the facts into account. I think I read yesterday that he had acted with the most robust legal advice in place.

[Viscount Hanworth (Lab)]

My Lords, it is extraordinary that the Minister refuses to discuss the details of the case in question. In my opinion, the decision of the Home Secretary, Sajid Javid, to deprive Shamima Begum of her British citizenship is profoundly flawed. It is wrong from an ethical perspective, it flouts international law and it is the wrong decision from the point of view of expediency. International law decrees that a country cannot render its citizens stateless. The assertion that it is permissible to strip Miss Begum of her British nationality because she can inherit Bangladeshi nationality from her mother seems risible. What legal advice have the Government received on this issue? On expediency, it has been proposed that Shamima Begum’s presence in the UK would pose a danger to other citizens. That seems far-fetched; there are greater hazards in leaving her, and others, in Syrian refugee camps.

[Viscount Hanworth]

I have already posed a question.

[Baroness Williams of Trafford]

The noble Viscount’s assertion is absolutely correct. Under international law, someone cannot be rendered stateless unless they are a dual citizen with citizenship of another country. However, I disagree with his view that the Home Secretary’s decision was wrong in all sorts of ways. Clearly, anyone who goes out to Syria and voices their support for ISIS is a danger to the UK if they return home.

[Lord Paddick (LD)]

My Lords, what does the Minister make of the comments of the noble Lord, Lord Anderson of Ipswich, on today’s “Today” programme? He said that rather than depriving subjects of their British nationality, we should take responsibility for our citizens; otherwise, other countries will start doing the same to us, depriving British dual nationals of their other citizenship and dumping their problems on us.

[Baroness Williams of Trafford]

I agree with much of what the former Independent Reviewer of Terrorism Legislation said. However, on taking responsibility for our citizens, if our citizens decide to take responsibility for themselves and go to one of the most dangerous parts of the world and engage with proscribed organisations, that is their decision. Therefore, given that we have no consular access in Syria, it is very difficult in any circumstances for the UK Government to take responsibility for one of our citizens who decides to travel beyond our reach.

Immigration (Leave to Enter and Remain) (Amendment) Order 2018

Baroness Williams of Trafford Excerpts

Thursday 14th February 2019 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Order laid before the House on 3 December 2018 be approved.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the order was laid before Parliament in December and is required to enable nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America who are aged 12 or above and seek to enter the United Kingdom as a visitor under the Immigration Rules to be granted such leave by passing through an automated gate, without having to be interviewed by an immigration officer. The change is needed to give effect to the announcements made by both the Chancellor and the Home Secretary that these additional nationalities should be permitted to use our e-passport gates. Noble Lords’ agreement to the order will ensure that the change can be implemented in time for the summer.

The UK already leads the world in the use of e-passport gates for passenger clearance. We have more e-passport gates than any other country and we allow more nationalities to use them. We intend to continue to build on their use as they provide a safe and secure means of processing low-risk passengers, allowing our highly trained Border Force officers to focus their efforts on those who seek to abuse or exploit the system and wider border threats.

The change will have a transformational impact on the border experience for the additional nationalities, providing them with significantly faster entry to the UK. It should also have a knock-on benefit for the clearance of non-EEA passengers arriving at ports with e-passport gates, by removing an expected 6.5 million passengers from the staffed non-EEA queue.

Expanding e-passport gate eligibility to these additional low-risk nationalities will also help us to meet the challenge of growing passenger numbers, ensuring that arriving passengers are dealt with both swiftly and securely. In 2017, there were 137 million arrivals at the UK border, an increase of 5.4% on 2016. Within those figures the percentage increase in non-EEA passenger arrivals was even more noticeable, up more than 17% on the previous year. Passenger numbers are projected to continue to increase, with the Department for Transport predicting year-on-year growth on aviation routes alone of 2.8% to 2020. That is of course good news for the UK, demonstrating that we continue to be a destination of choice.

Keeping the UK’s border secure remains our top priority, and I assure noble Lords that this decision has been taken only after careful consideration and in consultation with security partners across government. Nationals from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States have been identified as suitable for using the gates based on a number of factors, including levels of co-operation with the UK on border matters.

Part of our long-term vision has always been to make better use of digital technology and greater automation to improve the passenger experience while maintaining security at the border. As noble Lords will be aware, we recently published a White Paper setting out detailed plans for the UK’s future skills-based immigration system, which includes measures to strengthen border security and improve journey crossings for legitimate passengers. The expansion of the use of e-gates needs to be seen in the context of that longer-term programme of work, where we intend to use the UK’s exit from the EU as an opportunity to develop a new global border and immigration system that makes better use of data, biometrics, analytics and automation to improve both security and fluidity across the UK border.

I also reassure the House that this is not a cost-cutting measure—far from it. The Government are increasing Border Force officer numbers, and their powers and responsibilities will remain unchanged. We are committed to ensuring that Border Force has the resources and the workforce needed to keep the border safe.

This new order will allow nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States to be granted leave to enter as visitors for up to six months when they pass through an e-gate at a UK port, including our juxtaposed controls for Eurostar services. Nationals of these countries coming to the UK for other purposes, such as work or study, will also be able to enter using our e-gates but no change to the law is needed for them as they will already hold the necessary leave in the form of a visa or residence permit. We estimate that up to 6.5 million passengers from these countries will benefit from the change. This expansion in eligibility is therefore a clear signal to the rest of the world that the UK is open for business and will allow us to control our borders in the UK’s best interests. Once approved, we expect the change to be fully implemented in time for the summer. I commend the order to the House.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for explaining the draft order. I ask your Lordships to bear with some cynicism on my part.

The obvious questions are: why this order and why now? The Minister said that it is required. It is not, on the face of it, Brexit related—we have enough Brexit-related secondary legislation to fill the Order Paper—yet the Government have said that EU citizens must not be allowed in future to jump the queue at the border. You take your choice as to whether that is a political observation or because of the chaos that would be caused if they had to be checked in by Border Force in addition to those who are now. A different way of looking at the order is that we have to let some non-EU citizens in by equivalent arrangements because we cannot let EU citizens uniquely use the e-gates.

We have heard about the cohort who will be affected. I have got nothing against EU nationals or any of these nationals, quite the contrary, but they will be allowed to enter without any form of visa—unless, as the Minister said, they are coming for work purposes and so on—and without an explanation as to the duration of the stay, though it should be six months, the purpose of the stay or the means by which they will support themselves. The assumption is that all will be seeking to enter temporarily.

This leads to my first question: what if they want to stay longer? Presumably if they know that before they arrive they will have applied in their own country, but what if they take the decision during the six-month period? Will they have to leave the UK and apply out of country, which is what many people in difficult immigration situations have to do at present?

UK visitors to the United States need an electronic visa waiver before they depart. They are questioned at the border, can still be refused entry and have their fingerprints and photographs taken. The Department of Homeland Security assumes that all visitors are seeking to enter to remain permanently—in other words, illegally—until the visitor proves otherwise. So the rhetorical question is: border control?

Will there be further instances of UK citizens acting on behalf of the state as a result of this new arrangement—employers, landlords and banks checking on the status of an extra group of people who are living here? We are often told that the largest number of people in the UK without leave to be here are over-stayers, and we know how much more difficult it is to find and remove them than to not give them leave in the first place. I wonder whether this is a false economy.

The Explanatory Note tells us that there will be no significant impact on the private, voluntary or public sectors and that therefore there is no impact assessment. Should we really accept that without questioning?

I am all for efficiency and the use of reliable technology, but by identifying these nationalities as lower risk, by implication others are higher risk. I simply observe—there is no accusation in it; I say it to myself as well as to others—that we must be careful not to appear to be prejudiced in any way.

It is not news to any noble Lord that my instincts are to want the UK to be as open and welcoming to visitors as possible. I do not subscribe to the rallying cry of “take back control”—none of my noble friends do—but one must ask whether this order is taking back control of our borders.

--- Later in debate ---

[Lord Mackay of Clashfern (Con)]

My Lords, I wish to ask two questions. First, on the six months, what record is there that it is a six-month stay that is allowed? Secondly, do the gates require adaptation for the nationals of the different countries coming in? If, for example, another country is added later, will it be possible to adapt the gates to enable that?

[Baroness Williams of Trafford]

I thank noble Lords for the points they have raised.

The noble Baroness, Lady Hamwee, asked why we are doing this. Sometimes with SIs a suspicion is built into noble Lords’ minds. We are doing it because UK airports have asked us to and to make it easier for passengers. Noble Lords and Members of the Commons have been asking for the expansion of e-gates to make it easier for visitors—I stress “visitors”—to use them.

The noble Baroness, Lady Hamwee, and my noble and learned friend Lord Mackay asked about six months. It is the usual time allowed for visitors, so that is why six months is in play.

The noble Lord, Lord Berkeley, asked about Ireland. The situation for Ireland is no different from what it was before this SI was laid. It is all about expanding e-gate facilities to countries other than the UK, so the arrangements for Ireland remain unchanged under the SI.

The noble Baroness, Lady Hamwee, asked about people who want to stay longer. They would have to do so under the terms of their reasons for wishing to stay longer, such as to work or as a visitor. They would have to make those arrangements. Generally, those arrangements are made ahead of travel across the border.

[Baroness Hamwee]

People’s plans change, so my question was about whether they would have to leave the UK to make the application or whether it could be made in this country without their having to leave.

[Baroness Williams of Trafford]

I think the answer is not necessarily. Individuals entering the UK via the e-passport gates will be granted six months’ visitor leave. This is the standard leave granted to visitors. They will be required to leave the UK at the end of the six-month duration of their visitor leave. If they want to extend their stay, they cannot. They must return home and reapply. I was not sure about that, so I thank my officials for that answer.

The noble Baroness talked about going from the UK to the US being different. Yes, it is an entirely different experience when going to the US. The noble Lord, Lord Kennedy, asked about reciprocity and other noble Lords asked whether we will expect other countries, such as the US, to do the same as we have done. Obviously, we operate the UK border in our way and in the best interests of the UK. We would expect other countries to follow suit in due course. I guess that is a partial answer on reciprocity, but I would like the eventual outcome of this to be that other countries do the same.

[Lord Kennedy of Southwark]

Is the Minister saying that we tried to get the United States to make an e-gate change, that we did not bother or that we do not intend to do so? It would be nice to know. The United States is a great country, and I have been there many times, but it is not the easiest place to arrive in and you do not get the friendliest welcome there. It would be nice to think that, as we have been so accommodating here, that could be reciprocated.

[Baroness Williams of Trafford]

Indeed. As I said, going into the US is an entirely different experience from going to Manchester Airport. I imagine that conversations have gone on but, rather than guessing the answer, I will ask whether we have information on this.

The noble Baroness said that if these countries are lower-risk, by inference others are not. It is not a question of either/or, but we have specifically looked at countries that are low-risk in all sorts of areas, some of which I clearly cannot discuss publicly. She also asked about the impact assessment. We have said that there is no impact, but there might even be a positive impact if people’s travel through the e-gates is easier. Passengers will still go through the same procedures, but they will be able to use the e-gates.

Motion agreed.

EU Settlement Scheme

Baroness Williams of Trafford Excerpts

Thursday 14th February 2019 Lords Chamber

[Lord Greaves]

To ask Her Majesty’s Government what progress they have made in implementing the EU Settlement Scheme.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the EU settlement scheme opened on a trial basis at the end of August and a second pilot phase ended on 21 December. In the light of positive progress, we commenced the wider public testing of the scheme on 21 January. The EU settlement scheme will be fully open by 30 March.

[Lord Greaves (LD)]

My Lords, we recently had a letter dated 11 February from Caroline Nokes, the Minister for Immigration, telling us that everything was wonderful and that it was all going okay. This is just not true. The Home Office seems to be living in a bubble of its own making. When will it start listening to many of the 3.6 million EU citizens in this country struggling to make sense of a technical and bureaucratic shambles that is not fit for purpose? The internet is awash with frustration, anger, fear and distress in relation to the obstacles in accessing the system, ridiculous demands for evidence, obviously wrong decisions—decisions made by machines—and no proper means of appeal. Is it not time to scrap the scheme and start afresh with a simple system based on a simple acceptance of the rights of people already living here?

[Baroness Williams of Trafford]

My Lords, the whole construction of the scheme was designed to be as simple and unbureaucratic as possible. To date we have had 100,000 applications in total. As regards the plethora of evidence that people need to supply, in fact they need to supply only three pieces of evidence: first, their identity, secondly their residency and thirdly the absence of criminal convictions.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the scrapping of the fee was very welcome news when it was announced by the Prime Minister. A number of the 100,000 people who have so far applied will have paid a fee. Can the Minister tell the House how many of them have so far been reimbursed, as the Prime Minister promised?

[Baroness Williams of Trafford]

The noble Lord is absolutely right to point out that nobody has to pay a fee any longer. However, while the system for returning the fee is in train, people are continuing to pay the fee and will have it reimbursed—although that does not seem to have deterred people from applying for the settlement scheme.

[Lord Cormack (Con)]

My Lords, does my noble friend not remember that as early as July 2016 your Lordships’ House advised that it would be a good idea to take the moral high ground and give a guarantee to the 3 million-plus EU citizens living in this country? Even arch-Brexiteers such as my noble friend Lord Forsyth spoke up in favour of that approach. Does she not regret that the Government neglected to take your Lordships’ advice?

[Baroness Williams of Trafford]

My Lords, the Prime Minister has always been clear that the 3.6 million EU citizens will be welcome here, and, whether it is a deal or no-deal situation, they will be able to establish their status here through the EU settlement scheme.

[Lord Anderson of Swansea (Lab)]

My Lords, how valid was the pilot scheme launched by the Government, given that they chose a very easy sample?

[Baroness Williams of Trafford]

I do not know whether the sample was easy. It was taken from the north-west of England, which I was very pleased about, and involved staff and students at 15 institutions. Of those who applied, 65% received settled status and 35% pre-settled status.

[Baroness Ludford (LD)]

My Lords, in the pilot scheme 30% were granted only pre-settled status, which lasts for just five years. One problem seems to be that the automatic checks by HMRC and the DWP are not validating a lot of people who have been here for longer than five years, particularly the self-employed. The danger is that people will find giving supplementary evidence such a hassle that they will settle for just pre-settled status—but that is very dangerous. Can the Minister look into whether the Home Office can send them reminders—as HMRC does with tax returns—that they have to convert that into full settled status?

[Baroness Williams of Trafford]

I thank the noble Baroness for that question. She is right that someone with pre-settled status might forget to apply for full settled status. Of course, they have five years in which to do so—but I will certainly take back her constructive point and respond to her in due course.

[Lord Lexden (Con)]

How are the Government getting on in safeguarding the position of our fellow country men and women living in other European Union countries?

[Baroness Williams of Trafford]

My noble friend is right to point that out. The UK has given that comfort to any EU citizen and I hope that, through the negotiations, our citizens living in the EU will have similar comfort.

[Lord Clark of Windermere (Lab)]

My Lords, the Minister has been supportive of this approach and I applaud her for that. However, are the Government not being a tad complacent when they go on about the fact that 100,000 people have already applied? That is about 2% of those eligible to stay. Bearing in mind that the Government keep saying that D-day is 30 March, is there not a long way to go yet, and should we not step up the campaigns?

--- Later in debate ---

[Baroness Williams of Trafford]

The noble Lord hits on a point which I myself have raised—that we need to step up some of the public information campaigns to give EU citizens who want to apply for settled status the knowledge of how and where to apply. So he is correct on that point. However, on whether we are being complacent, the answer is no. The beta-testing phases have worked very well and I fully expect that, when the system is up and running properly on 30 March, it will continue to run well.

[Baroness Bull (CB)]

Can the Minister say a little more about the rights of British citizens who find themselves settled in the EU on 30 March? Will they enjoy onward movement that will allow them to continue to earn a living—if that is indeed the way in which they earn their living?

[Baroness Williams of Trafford]

I certainly hope that that will be the case, and it will be at the forefront of the Prime Minister’s mind when she is negotiating with our colleagues in the EU.

Zimbabwe: Asylum Seekers

Baroness Williams of Trafford Excerpts

Wednesday 13th February 2019 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the UK continues to call for the Government of Zimbabwe to uphold the rule of law and human rights and promote free and fair elections, under the protection of the 2013 constitution and international human rights law. The Home Office seeks to return only those whose asylum claim has been unsuccessful. They are, by definition, not at risk on return. All protection claims from Zimbabwean nationals are carefully considered on their individual merits in accordance with our international obligations.

[Lord Kennedy of Southwark]

My Lords, the Government themselves have expressed serious concerns about the situation in Zimbabwe, as have Amnesty International and other NGOs and charities. There are reports of oppression of activists and allegations of beatings, rapes and killings. In light of this, how have the Government deemed it safe to return asylum seekers to that country?

[Baroness Williams of Trafford]

The noble Lord is absolutely right that the Government have expressed serious concerns and we continue to call for the Government of Zimbabwe to uphold the rule of law and human rights and promote free and fair elections under that protection of the constitution and international human rights law. I reiterate that when we return somebody to their country of origin, we seek to do so only when we and the courts have considered it safe.

[Lord Chidgey (LD)]

My Lords, the Zimbabwe Human Rights Commission has reported that not only did the police and military target members of the MDC, the opposition party, and civil society organisations, their offices were broken into and their membership files downloaded. Subsequently, beatings were carried out and arrests made late at night. What assessment have the Government made of this escalation in premeditated human rights abuses, particularly—as the noble Lord mentioned—in regard to factoring in opposition party membership when assessing asylum seekers’ claims in this country?

[Baroness Williams of Trafford]

The noble Lord has hit on something that the Government acknowledge—there are risks to certain people who oppose the ruling ZANU-PF Government. That does not extend to all people, but when determining an asylum claim, all things are taken into consideration and no one will be returned if it is not safe to return them.

[Lord Alton of Liverpool (CB)]

My Lords, can the Minister tell the House how many Zimbabweans there are in the United Kingdom who might be subjected to deportation? Given what has been said by the noble Lords, Lord Chidgey and Lord Kennedy, about the continuing arrests, abductions, torture and beatings—and the serious concerns expressed not just in the UK, but around the world—would it not be prudent in the meantime to suspend deportations until those issues have been more thoroughly considered?

--- Later in debate ---

[Baroness Williams of Trafford]

I do not know how many Zimbabweans are in the UK—I presume he means Zimbabweans who are seeking asylum in the UK. I do not have that figure. Torture, beatings and other alleged human rights abuses are all taken into consideration by the Government when an asylum claim is made, and no one will be sent back to face human rights abuses in the country of return.

[Baroness Warsi (Con)]

My Lords, I have both presented and defended on asylum cases as a lawyer and would be grateful if my noble friend could explain how the country brief in relation to individual countries—specifically in relation to Zimbabwe on this occasion—is put together. How accurate and up to date is that information, and which human rights organisations do the Government liaise with in ensuring that the country brief is reflective of the situation on the ground?

[Baroness Williams of Trafford]

My Lords, my noble friend asks a relevant question, but we do not take a country-based decision in looking at asylum claims. We look at the individual claim, depending on what it might be for, and then take a view on whether it is safe to return that person.

[Lord Hain (Lab)]

My Lords, given the current climate in Zimbabwe, which is a human rights-free zone, and with President Mnangagwa and his military henchmen cracking down on individual freedom and particularly the opposition, nobody should be deported, especially when families are protesting about the desperate situation they will probably face. Surely the Minister accepts that.

[Baroness Williams of Trafford]

I certainly accept the noble Lord’s point that Zimbabwe is violating human rights conventions, but civil unrest—in and of itself—is not a reason to grant somebody protection. There are certain issues within that civil unrest—for example if someone is opposing the current regime and might be at risk, that would be taken into consideration.

[Lord Roberts of Llandudno (LD)]

My Lords, is the Minister aware that the Foreign Office issues guidance about countries which are not safe for us to travel to, yet there are people deported to countries which we have been advised that we should not visit?

[Baroness Williams of Trafford]

I am aware that FCO guidance advises UK nationals if it is not a good idea to visit somewhere, particularly if there are areas of civil unrest. However, civil unrest, in and of itself, is not a reason to grant an asylum claim.

[Baroness Lister of Burtersett (Lab)]

My Lords, given that the Minister accepts there are serious human rights abuses in Zimbabwe, what steps does her department take in individual cases to ensure that people will not be subjected to those abuses if they are returned to the country? Lawyers quoted in the Guardian today are very worried that they will be.

--- Later in debate ---

[Baroness Williams of Trafford]

As I have said before in this House, asylum claims are thoroughly assessed. They have various levels of scrutiny as they proceed through the system. One of the main things in returning someone to a country is to ensure they would not be subjected to human rights abuses should they return.

[Lord Dholakia (LD)]

My Lords, when did the Minister last look at in-country reports, particularly those produced by Amnesty International? How have they affected the decision-making process in the Home Office on asylum applications?

[Baroness Williams of Trafford]

On looking at in-country briefs, clearly my department is not the FCO but I am aware of some of the information and advice that the FCO gives to people going to certain countries. To go to an area in Zimbabwe experiencing civil unrest might not be a great idea. The Home Office is aware of certain things, but clearly my colleagues in the Foreign Office would be more sighted on that.

[Lord Campbell-Savours (Lab)]

Does the Minister draw a distinction between civil unrest and civil repression?

[Baroness Williams of Trafford]

Both might go on. I am not trying to say at this Dispatch Box that the situation in Zimbabwe is in any way ideal. It is not. The Government have made representations through our embassy in Harare on the situation in Zimbabwe. I am not trying to pretend that the situation is in any way ideal.

[Lord Pannick (CB)]

The Minister has repeatedly said that the Home Office looks at the circumstances of the individual case in deciding whether to return a person to Zimbabwe, but surely it must have a policy as to whether it is safe to return to Zimbabwe a person who is an active opponent of the regime there.

[Baroness Williams of Trafford]

I cited that as the one example, whereby someone who opposed ZANU-PF in Zimbabwe might be at risk if they were returned to that country.

Offensive Weapons Bill

Baroness Williams of Trafford Excerpts

Committee: 4th sitting (Hansard): House of Lords
Tuesday 12th February 2019 Grand Committee

Moved by

[Baroness Williams of Trafford]

88: Clause 42, page 39, line 30, at end insert—
“(ja) section (Enforcement of offences relating to sale etc of offensive weapons)(5);(jb) section (Application of Regulatory Enforcement and Sanctions Act 2008);”Member’s explanatory statement
This amendment is consequential on the Minister’s amendments to insert new Clauses after Clause 39.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

89: Clause 42, page 39, line 38, at end insert—
“(za) section (Sale etc of bladed articles to persons under 18)(1);”Member’s explanatory statement
This amendment is consequential on the Minister’s amendment to insert a new Clause before Clause 14.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

93: Clause 42, page 40, line 29, after “25(8)” insert “, (8A), (8B)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 28, line 40.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

95: Clause 43, page 41, line 13, at end insert—
“(ca) section (Sale etc of bladed articles to persons under 18)(1);”Member’s explanatory statement
This amendment is consequential on the Minister’s amendment to insert a new Clause before Clause 14.

Police: Recruitment and Retention

Baroness Williams of Trafford Excerpts

Tuesday 12th February 2019 Lords Chamber

[Baroness Lawrence of Clarendon]

To ask Her Majesty’s Government what progress they have made towards implementing the recommendations on the recruitment and retention of police officers in the report of the Stephen Lawrence Inquiry, published in February 1999.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the police workforce is more representative in gender and ethnicity than it has ever been. The recommendations made by the Stephen Lawrence inquiry report on police recruitment and retention have been implemented. However, the Government are absolutely clear that there is more for forces to do to ensure that the police workforce reflects the diversity of the communities that it serves.

[Baroness Lawrence of Clarendon (Lab)]

I thank the Minister for her Answer. This month marks the 20th anniversary of the inquiry. There were 70 recommendations but I will ask the Minister about only recommendation 64, which addresses the recruitment and retention of minority officers and staff. It says that the Home Secretary and police authorities’ policing plans,

“should include targets for recruitment, progression and retention of minority ethnic staff”,

that the Home Office should,

“facilitate the development of initiatives to increase the number of qualified minority ethnic recruits”,

and that HMIC should include,

“in a thematic inspection a report on the progress made by Police Services”.

I find it really difficult to find any report giving me an update. Can the Minister give the House an update on recommendation 64 on recruitment and retention since the report was published?

[Baroness Williams of Trafford]

I pay tribute to the noble Baroness and all that she has achieved on some of the recommendations that have come out of the report. On the three recommendations she talked about, there are several things going on. She will have seen the race disparity audit, which is published by the Government and continually updated on the government website to show exactly where the disparities lie and where improvements need to be made. Last year, the NPCC produced a diversity, equality and inclusion strategy led by Chief Constable Gareth Wilson. It attempts, across all areas of the police, to increase inclusion and diversity. The superintendents’ association and college have a mentoring and coaching scheme precisely to improve the recruitment of BME staff. The figure has improved, but the noble Baroness is right to ask the question because we have much further to go.

[Lord Paddick (LD)]

My Lords, I am told that, recently, almost 50% of all black and minority-ethnic officers of superintendent rank and above in the Metropolitan Police were under investigation of one kind or another. It is also alleged that a recent promotion selection process in the Metropolitan Police contained a test that was known to be culturally biased, and that some BME officers who passed every other part of the assessment were failed because they did not pass the culturally biased part. Will the Minister look into what appear to be allegations of institutional racism?

[Baroness Williams of Trafford]

My Lords, these are very serious allegations indeed and I will of course look into them. If officers are under investigation, it may be more difficult for me, but the allegation that 50% of BME staff at superintendent rank or above are under investigation is very concerning.

[Lord Hogan-Howe (CB)]

My Lords, I support the bid from the noble Baroness, Lady Lawrence, to increase the recruitment of minority-ethnic officers. By the time I left the Met, one in three of our recruits was from a minority, but I am still worried. For the past three years we have seen no recruitment because of lack of resources. This means there has been a pause in the change in make-up of all our police forces. I encourage the Minister and the Government to consider the Northern Ireland approach, as instigated by the noble Lord, Lord Patten of Barnes. It did not change at all the standards for recruitment—people were offered a place in order of ability, but also in order of their representation in society. In the Northern Ireland context, therefore, unionists got jobs later and Catholics tended to get them earlier. I seriously think it is worth considering this in a UK context, given that we still see underrepresentation in our police service, as in many public services.

[Baroness Williams of Trafford]

I certainly agree with the noble Lord that positive action is absolutely necessary. I take his point about less recruitment happening in recent years. Now is the moment to put that positive action into place and encourage people from BME backgrounds to come forward and apply for roles in the police.

[Baroness Berridge (Con)]

My Lords, in recent years television programmes have taken seriously the issue of role modelling: look at the BBC’s “Luther” and ITV’s DS Sunny Khan in “Unforgotten”. But these role models cannot be just fictional. Will the Minister outline the statistics for those in the senior ranks of our forces from a black and minority-ethnic background?

[Baroness Williams of Trafford]

My noble friend points to an area where we are doing very badly: the senior ranks. In 2017-18, 27% of new recruits to the Met Police were from a BME background. To get people from BME backgrounds through to the senior ranks, we need new recruits as the pipeline for the future. She talked about role models, and I take this opportunity to give my good wishes to the brother of my right honourable friend the Home Secretary as he proceeds up the ranks of the police.

[Baroness Osamor (Lab)]

My Lords, the recommendations in the inquiry begin by talking about:

“Openness, accountability and the restoration of confidence”,


and the need:

“To increase trust and confidence in policing among minority ethnic communities”.


What level of confidence is there in policing among the black and ethnic-minority communities?

[Baroness Williams of Trafford]

My Lords, it is certainly something that we have to work on and that the police have to work on. Whether you are talking about a democratic system or organisations such as the police, you need recruits from BME backgrounds because it is important that they look like and are in tune with the communities that they serve.

Crime (Overseas Production Orders) Bill [HL]

Baroness Williams of Trafford Excerpts

Ping Pong (Hansard): House of Lords
Monday 11th February 2019 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That this House do agree with the Commons in their Amendment 1.

1: Clause 1. page 1, line 20, leave out subsections (5) and (6)

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, as noble Lords will know, the purpose of the Bill is to sidestep the bureaucratic barriers that we currently face in investigating and prosecuting serious crime. The Bill allows law enforcement agencies to access content data directly from communication providers based overseas using an overseas production order.

Briefly, before turning to the amendments to the Bill made in the Commons, I know from conversations with the noble Lords, Lord Rosser and Lord Kennedy, that there were some concerns surrounding extradition. I put on the record and reassure noble Lords that this Bill has nothing to do with extradition. Overseas production orders are about seeking stored communications content data from overseas providers for the investigation and prosecution of UK criminal matters; it does not provide any new avenues for extradition, which is entirely out of scope of this Bill.

I turn to the amendments made in the other place. Orders under the Bill can work only when a relevant international agreement is in place between the UK and another country. As the majority of the CSPs are based in North America, we expect the first such agreement to be with the United States. Amendments 1, 13 and 15 relate to death penalty assurances in any such international agreement.

Amendment 13A, proposed by the noble Lord, Lord Paddick, would amend the Bill to oblige the Secretary of State to seek and secure a death penalty assurance in any future international treaty. I make it absolutely clear: if noble Lords vote in favour of this amendment, they will be tying this and all future Governments’ hands in negotiations that are never entirely under our control, whether they be with the US or any other country with which we wish to enter into an agreement. Live international negotiations do not work in this way. If we are unable to secure a relevant international treaty, this Bill and its powers will be rendered entirely pointless.

As I have stated throughout the passage of the Bill, it is our duty to give our law enforcement agencies the tools that they need to fight and prevent serious crime, and our prosecution authorities the tools that they need to bring offenders to justice. Current delays in accessing content data held and stored by companies based outside the UK make their job much harder. Delays prevent criminals being brought to justice. If we do not successfully conclude this Bill and the US agreement, child abusers will be able to continue their heinous crimes while the police wait for up to two years for the relevant evidence to be transferred from abroad, or worse still, drop investigations because they simply cannot afford to sit through long delays.

The reality is that the majority of communication service providers are in the US. It is a fact that we need access to data held in the US a lot more than the US needs access to data held in the UK. The UK holds only 1% of the data that we need to prevent and catch sexual abusers of children, meaning that 99% of it is stored abroad. The level of child sexual abuse reported by US service providers has increased, and continues to increase, in horrific quantities—by 700% since 2012. There is a clear inequality of arms from the outset, and to restrict Ministers’ discretion in negotiations could jeopardise the US agreement and result in serious criminals being able to continue their abuse.

Of course the US treaty will have some form of death penalty assurance associated with it, but the exact details and practicalities of this assurance have not yet been negotiated. That is why Parliament will, rightly, have its say on any treaty put before the Houses during designation and prior to ratification. Members can then decide whether the contents of the treaty and its death penalty assurances are acceptable to the House.

In recognition of the concerns raised by noble Lords, the Government have amended the Bill so as to mandate the Secretary of State to seek death penalty assurances in connection with all relevant international agreements. For the first time, this puts into primary legislation policy that reflects the overseas security and justice assistance brought in under the coalition Government in 2010. The outcome of such negotiations will be implicit in the international treaty necessary to give effect to this Bill. The Government will commit to make a Statement, in both Houses, when the relevant treaty is put before Parliament in the usual way. Indeed, this Government and previous Governments are familiar with the need to obtain death penalty assurances when providing evidence to other countries. We do this in line with OSJA, a fundamental piece of long-standing policy that recognises that negotiating with another country is complex and does not attempt to dictate the outcome of any particular negotiation. Governments of all colours have agreed with and used the approach set out in OSJA.

The Government’s amendment, in line with OSJA, is therefore a sensible compromise that does not jeopardise law enforcement agencies’ capabilities. I ask noble Lords to support Amendments 1, 13 and 15, to let the Government continue our negotiations with our international partners as we have done for so many years, and to exercise powers of scrutiny—both prior to ratification of the agreement under CRaG and when secondary legislation comes to be laid—to assess whether the terms of any death penalty assurances are acceptable.

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, I am far less clear than the noble and learned Lord, Lord Hope, that it would be a breach of our obligations under the European Convention for us to supply information abroad in circumstances where it may be used in a prosecution that may lead to a death penalty. As he well knows, all the cases concern extradition. They concern circumstances in which this country is removing a person to face possible trial abroad where that person may be executed. The European Court of Human Rights has repeatedly made it clear that that is a breach of our obligations. I am far less clear on whether the same would apply where all we do is provide information, which is under the control of the authorities in this jurisdiction, to assist a prosecution abroad.

A particular reason why I am far less clear is that the noble Lord, Lord Paddick, mentioned the one example where there was a challenge to the decision of the Secretary of State to do precisely this: to provide information abroad to the United States in circumstances where it was said, accurately, “These people may face prosecution which may lead to the death penalty”. My recollection, which I would be grateful if the noble Lord or the Minister could confirm, is that the Home Secretary’s decision was the subject of a legal challenge and—again, please confirm whether I am right or wrong—the High Court rejected that challenge. It held that it was lawful for the Home Secretary to act in that way.

[Baroness Williams of Trafford]

The noble Lord is correct.

[Lord Pannick]

I am very grateful. I do not have immediate access to that judgment, but perhaps the Minister can provide the House with some assistance in relation to it. Can the Minister also confirm what I understood her to say: no information will be provided abroad under the Bill, unless and until there is an agreement with the relevant state—here the United States? My understanding—again, I think the noble Baroness said this, but I should like her to confirm—is that before any such agreement has practical effect, it must be put before this House and the other place for approval. Ratification cannot take place unless and until, under CRaG 2010, Parliament has had that opportunity. It seems that is the time at which both Houses of Parliament can consider whether they wish to approve such an agreement, if it does not contain the sort of assurance that the noble Lord, Lord Paddick, is seeking.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, the central point here is whether or not we are in breach of the European Convention on Human Rights. My view is that we are not. Article 1 of the 13th protocol does not prevent member states providing assistance to a third country, where that assistance contributes to the use of the death penalty by that country. Even if the amendment related to the use of the designation power, under Section 52 of the 2016 Act—which would be the gateway for the flow of information from the UK—it would still not prevent designation in the absence of assurances about the use of our material. That is not to say that we will be sharing information for the pursuit of the death penalty. Noble Lords have heard, on many occasions, that I am not going to pre-empt our negotiations with the US, but this shows that not only is the amendment unnecessary but it may not do what its sponsors hope.

The case of the foreign fighter, which the noble Lord, Lord Paddick, talked about, shows that we are compatible with the ECHR, for the reasons outlined by the noble Lord, Lord Pannick. The noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick, said that any agreement would have to be put before Parliament. That is absolutely the case. The noble and learned Lord, Lord Hope, talked about this being the negotiation stage. I would put it further back than that: it is the pre-negotiation stage. It is a framework Bill, on the basis of which treaties would be negotiated and made.

[Lord Paddick]

My Lords, will the Minister confirm that, when a treaty is put to Parliament, if the House of Commons approves it, then it does not matter what the opinion of this House is; the treaty is ratified even if this House votes against it? I obviously agree with the noble and learned Lord, Lord Hope of Craighead, that whether this is a breach of the European Convention on Human Rights has yet to be tested in court—certainly not at the European level. Will the Minister explain why the then Foreign Secretary had to say that seeking death-penalty assurances in the ISIS case was unique and exceptional, if the Government were not concerned about people executed on the back of evidence provided by the United Kingdom?

[Baroness Williams of Trafford]

My Lords, the noble Lord is absolutely right. The treaty would be put to the Commons; the Lords could certainly have a view but that might not be taken into account by the Commons. That is nothing unusual. The Commons quite often exerts its supremacy.

Motion agreed.

Moved by

[Baroness Williams of Trafford]

That this House do agree with the Commons in their Amendments 2 to 12.

2: Clause 4, page 5, line 25, at end insert—
“(5A) The judge must be satisfied that there are reasonable grounds for believing that all or part of the electronic data specified or described in the application for the order is likely to be relevant evidence in respect of the offence mentioned in subsection (3)(a).
This requirement does not apply where the order is sought for the purposes of a terrorist investigation.”

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do agree with the Commons in their Amendment 13.

13: After Clause 15, insert the following new Clause—
“Designation of international agreements for purposes of section 52 of Investigatory Powers Act 2016
(1) Section 52 of the Investigatory Powers Act 2016 (interception of communications in accordance with overseas requests) is amended as follows.
(2) In subsection (3), at the end insert “(see further subsections (6) and (7))”. (3) After subsection (5) insert—
“(6) Subsection (7) applies where an international agreement provides for requests for the interception of a communication to be made by the competent authorities of a country or territory, or of more than one country or territory, in which a person found guilty of a criminal offence may be sentenced to death for the offence under the general criminal law of the country or territory concerned. Such an offence is referred to in subsection (7) as a “death penalty offence”.
(7) Where this subsection applies, the Secretary of State may not designate the agreement as a relevant international agreement unless the Secretary of State has sought, in respect of each country or territory referred to in subsection (6), a written assurance, or written assurances, relating to the non-use of information obtained by virtue of the agreement in connection with proceedings for a death penalty offence in the country or territory.””

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do agree with the Commons in their Amendments 14 and 15.

14: Clause 17, page 14, line 20, at end insert—
““the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);”