Offensive Weapons Bill
Baroness Williams of Trafford ExcerptsTuesday 19th March 2019
(5 years, 8 months ago)
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The Earl of Erroll (CB)
My Lords, I agree with everything the noble Lord, Lord Lucas, has said. I also support this amendment, because it is a move in the right direction. To my mind, it does not go far enough because we are disadvantaging all UK distributors against all foreign ones. It just leaves a huge loophole—and personally I think the Government will be massacred in the press once what they are passing here comes to light—so I recommend they put at least this in.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am grateful to the noble Lord, Lord Kennedy, for his amendments, because they enable us to return to whether or not the Bill should provide exemptions to the prohibition on arranging delivery of bladed products to residential premises or a locker. I am grateful to him and to the Sheffield knife manufacturers for the time they spent in discussion with me on this.
The noble Lord tabled an amendment on Report on whether trusted traders should be exempt from the prohibitions in the Bill on arranging delivery of bladed products to residential premises or a locker. In response, I said we would look to have further discussions with delivery companies on the issue. We have discussed this with a number of companies that provide delivery services. It is difficult for delivery companies to give a firm view on how they might operate in this sphere in future, and it will depend to a large extent on whether the criminal liability falls on the seller, as it does in the Bill in relation to the UK, or on the deliverer, as it does in relation to overseas sellers under Clauses 38 and 41.
Whether deliverers would be willing to take on the criminal liability—and with it the risk of an unlimited fine—for the offence of handing over items to a person under 18 is likely to depend on the specific circumstances in each case; for example, where a major retailer is involved, a delivery company may be prepared to take on the criminal liability because the commercial benefits of the contract outweigh the risks, but a small retailer may decide not to take on the liability. Placing the liability on deliverers could therefore work against small manufacturers and retailers, meaning that big firms can still have their products delivered to a person’s home but small ones need to use a collection point. This would be a perverse outcome that would put small businesses at a commercial disadvantage to larger firms.
I turn now to the amendments. When we considered the trusted trader amendments previously, I expressed concerns that their effect would be to transfer the responsibility for complying with the legislation and for ensuring that all bladed products are handled properly from the seller to the Government. I have similar concerns about a scheme that would exempt sellers using a trusted courier from the prohibition on the delivery of bladed products to residential premises. A trusted courier scheme would require the Government to set out the details of the proposed scheme, which would then allow for the delivery of bladed products to residential premises.
“(14A) After subsection (12) insert— “(12A) An order under this section which has the effect that possession in private of a weapon of a particular description is, or is to become, an offence under subsection (1A) may make provision—(a) enabling arrangements to be made for the surrender of weapons of that description;(b) as to the procedure to be followed in relation to the surrender of such weapons;(c) for the payment of compensation in respect of weapons surrendered in accordance with the arrangements;(d) as to the requirements that must be met by a person making a claim for compensation;(e) as to the procedure to be followed in respect of a claim and for the determination of a claim;(f) enabling a person to exercise a discretion in determining whether to make a payment in response to a claim and the amount of such a payment.””Member’s explanatory statement
This amendment would mean that, where weapons are brought within the prohibition on possession in section 141(1A) of the Criminal Justice Act 1988 by order, the order can provide for compensation if required to do so by Article 1 of the First Protocol to the European Convention on Human Rights (but need not make this provision if not required to do so).
Baroness Williams of Trafford
My Lords, I will now speak to the amendments regarding kirpans, and in doing so express my gratitude to the noble Lords, Lord Kennedy and Lord Singh, and my noble friend Lady Verma. They have all been tireless in their promotion of this issue; I hope that the amendments will provide an outcome satisfactory to everyone. In particular, I am grateful to the noble Lord, Lord Singh, for his advice and to the organisation Sikhs in Politics, which has engaged positively with officials on the development of these amendments.
As noble Lords will recall, we held a round table on the issue of kirpans following the debate on these clauses in Grand Committee. This identified a gap in the current defences in that the cultural practice of gifting large ceremonial kirpans by Sikhs to eminent non-Sikhs was not covered by the “religious reasons” defence. These amendments will therefore create a defence for a person of Sikh faith to present another person with a curved sword in a religious ceremony or other ceremonial event, as covered by Section 141 of the Criminal Justice Act 1988.
These amendments will also create a defence for Sikhs of possessing such swords for the purposes of presenting them to others at a ceremony and for the recipients of such a gift to possess swords that have been presented to them. The amendments also ensure a defence is available for the ancillary acts, such as manufacture, sale, hire or importation, where those acts are for the purpose only of making the sword available for such presentation. Finally, the amendments enable the Department of Justice in Northern Ireland to commence the provision in relation to Northern Ireland, other than in relation to importation, which is a reserved matter.
As noble Lords will be aware, the amendments do not mention the word “kirpan”. Kirpans vary considerably in their size and shape, with the only common factor being their association with the Sikh faith. It would not be possible to include a defence for kirpans without defining them legally. However, we are clear that these defences are specifically aimed at kirpans and we will include a reference to kirpans in the final Explanatory Notes for the Bill. We will also make it clear in the statutory guidance that defences of “religious reasons” and gifting by ceremonial presentation include, in particular, the possession, supply and gifting of kirpans for those purposes. We will certainly continue to engage with Sikh organisations, including Sikhs in Politics, when we develop the statutory guidance. I hope that, given what I have said, noble Lords will be able to support these amendments. I forgot to mention the noble Lord, Lord Paddick, in my thanks, so I do that now.
I turn to the amendments on compensation arrangements. Amendment 10 will amend Section 141 of the Criminal Justice Act 1988, so that any future order made under this section which has the effect of banning possession in private of an offensive weapon may also make provision for the surrender and payment of compensation for such weapons. This amendment therefore provides statutory authority to introduce surrender and compensation arrangements for any future orders bringing additional offensive weapons into full prohibition. Without this amendment and the authority it provides, there could be doubt as to whether compensation could be paid for any future prohibited offensive weapons.
I should point out that this amendment differs slightly from the existing provisions found under Clause 48, which allow for compensation payments to be made for offensive weapons which the Bill prohibits private possession of. Clause 48 requires the Secretary of State, Scottish Ministers or the Department of Justice in Northern Ireland to provide for such payments by regulations. However, this amendment provides that the Secretary of State, Scottish Ministers or the Department of Justice in Northern Ireland may make provision for surrender arrangements and the subsequent payment of compensation.
This is an important difference as it allows the authority discretion in deciding whether or not to pay compensation for future items that become prohibited by way of an order. There may be exceptional circumstances in which it is considered that payment is not required under Article 1 of the Protocol to the European Convention on Human Rights. However, it is anticipated that in most circumstances, a payment would be appropriate, as is the case for weapons the possession of which is prohibited under this Bill. None the less, providing this discretion to pay or not to pay compensation for future items is important.
Amendments 14 to 19 will ensure that cyclone knives fall within the compensation and surrender arrangements as they stand in the Bill. Noble Lords will recall that cyclone knives were prohibited by virtue of the Bill through a government amendment in Committee in this House. This minor amendment will allow for compensation to be paid to owners of these knives, in the same way that the compensation arrangements apply to the other offensive weapons which the Bill provides private possession of.
Amendment 20 then amends the date by which a person needed to have owned or contracted to acquire a cyclone knife in order to claim compensation. The date, 20 June 2018, is already set out in the Bill, and continues to apply to these weapons, private possession of which was prohibited by the Bill on introduction. The date of 22 January 2019 will apply to cyclone knives. This will allow anyone who owned or contracted to acquire a cyclone knife, up until the date that the government amendment prohibiting them was introduced, to claim for compensation.
Amendments 21 and 22 are consequential. Amendments 26 and 27 relate to Northern Ireland. Clauses 47 and 48 will come into force upon Royal Assent. However, these amendments allow the Department of Justice in Northern Ireland to commence these provisions locally.
I remind noble Lords that the compensation regulations which we have published in draft are subject to the affirmative procedure following assent to the Bill. Accordingly, they will need to be debated and approved by both Houses before they can come into force. I beg to move.
Lord Paddick
My Lords, I am very grateful to the Minister for the amendments relating to kirpans—even though the legislation does not refer to kirpans as such—because of the importance to the Sikh community of presenting the ceremonial curved sword as a mark of esteem.
Representatives from the Sikh community have also pointed out the difficulties that some Sikhs have in carrying a kirpan on their person as part of their religious observance. Although it is accepted that it has not been a problem in terms of prosecution, the fact that possession of a bladed article or pointed instrument is an offence—without the need for any criminal intent—has created difficulties for Sikhs when visiting attractions such as Madame Tussauds and the London Eye. Sikhs have been barred from going into those attractions because of having a kirpan on them. The security guards are working on the basis that the law states that possession of a pointed instrument or a bladed article is an offence, and therefore a person is not allowed to bring it in. I do not know whether there is any scope here. The Minister has already mentioned the Explanatory Notes for the final legislation, including instructions about what is and is not a kirpan. Could anything be mentioned in those notes regarding the issue that some Sikhs have with regard to entry to those sorts of premises?
Member’s explanatory statement
This amendment and the Minister's amendments at page 43, line 43 and page 43, line 44 would create defences to the offences in section 141(1) and (1A) of the Criminal Justice Act 1988 and section 50(2) and (3) of the Customs and Excise Management Act 1979 relating to the presentation of Sikh kirpans. This follows the Minister's undertaking on 4 March (HL Deb, column 470).
Member’s explanatory statement
This amendment and the Minister's other amendments to this Clause and Clause 48 would ensure that the provisions for surrender and compensation in this Clause and Clause 48 cover weapons which are brought within section 141 of the Criminal Justice Act 1988 by virtue of Clause 46(2), (3) or (10).
Member’s explanatory statement
See the explanation of the Minister's amendment at page 44, line 20.
Member’s explanatory statement
This amendment is consequential on the Minister's amendment at page 42, line 19.
Member’s explanatory statement
This amendment and the Minister's second amendment at page 61, line 42 would mean that the Department of Justice in Northern Ireland could bring Clause 46 into force only so far as it does not make provision about the unlawful importation of weapons.
Baroness Williams of Trafford
My Lords, on moving this Motion, I take the opportunity to say a few words of thanks to those who have contributed to the Bill’s passage through your Lordships’ House. I thank my noble friends Lady Barran and Lord Howe for undertaking some of the heavy lifting in Committee and on Report. Among all the Bills that I have dealt with this has not been the easiest, so I thank them very much. I also thank my noble friend Lady Manzoor for acting as the Government Whip on the Bill, and, on the opposition Benches, the noble Lords, Lord Kennedy, Lord Rosser, Lord Tunnicliffe and Lord Paddick, and the noble Baroness, Lady Hamwee—and my noble friend Lord Attlee for his well-drafted amendment on the storage of certain firearms.
I cannot, of course, omit the noble Lord, Lord Singh, for his constructive assistance in the drafting of the amendment on the kirpan. In fact, I thank all the Sikh organisations with which we have engaged during the Bill’s passage. I thank all noble Lords across the House who have contributed in various ways to the Bill. None of us could do it without officials from the Home Office, who have supported me and my noble friends Lady Barran and Lord Howe throughout the its passage.
The Bill has taken some funny twists and turns but has not lost sight of our ultimate aim, which is to end the scourge of this terrible crime on our streets and in our communities. I am pleased to have been able to reach a position of broad consensus on all but two of the Bill’s provisions, namely the introduction of KCPOs and the delivery of bladed articles. We are, however, continuing to reflect on these issues in advance of the Bill going to and returning from the House of Commons. I beg to move.
Lord Kennedy of Southwark
I thank the noble Baroness for the way she has conducted the Bill through the House. I also thank the noble Baroness, Lady Barran, and the noble Earl, Lord Howe. I appreciate the constructive way they have engaged with the House, as they always do. I also place on record my thanks to my noble friends Lord Rosser and Lord Tunnicliffe for the help that they have given me, as well as to the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. I was grateful, too, for the contributions of many other noble Lords from around the House, particularly those of the noble Lords, Lord Lucas and Lord Singh, and the noble Earl, Lord Erroll.
We are certainly sending the Bill back in a better state than that in which it arrived. I am not sure that it will quite achieve all the things that it wants to do, but I certainly support its aims. We have done a good job. I also thank the Bill team at the Home Office, who have always been very courteous and happy to engage with me and other colleagues. I also put on record my thanks to Ben Wood, who works in the Opposition office here in the House of Lords and has kept me armed with briefing notes, amendments and everything else.
Child Sexual Exploitation Victims
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The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given in the other place by my honourable friend the Minister for Crime and Safeguarding. The Statement is as follows:
“As you have outlined, Mr Speaker, I am conscious this question relates to an ongoing legal case and as such, it would not be appropriate to comment on the specific case or cases. But I reassure you that the Government want all victims and survivors of sexual abuse and exploitation to feel that they can come forward to report abuse, and that they get the support they need when they do. We are committed to working across government to ensure victims can move on from the abuse they have suffered and that professionals, including the police, who come into contact with a victim recognise exploitation when they see it and respond appropriately.
The Government are committed to acting to protect the public and to helping employers make safe recruitment decisions. The disclosure and barring regime is an important part of supporting employers to make informed recruitment decisions in relation to roles working with children and vulnerable adults, and a limited range of other circumstances. The criminal record disclosure regime seeks to strike a balance between safeguarding children and the vulnerable and enabling individuals to put their offending behind them.
The House will be aware that the Supreme Court recently handed down a judgment in the case of P and others, which affects certain rules governing the disclosure regime. The Government are considering the implications of the judgment and will respond in due course. However, it is also important to note that the Supreme Court recognised that the regime balances public protection with the rights of individuals to a private life. It applies only to certain jobs that are protected, and it is for employers to decide someone’s suitability for a role once they are armed with the facts”.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I thank the Minister for repeating the Answer to the Urgent Question given in the other place earlier today. The victims of sexual abuse and exploitation have the pain of the trauma they have suffered with them every day of their lives. It cannot be right that the victims are forced to live with the consequence of the exploitation that they have suffered: that is a further injustice. Will the Minister set out the Government’s position in respect of Sammy’s law? That would appear to be our way forward.
Baroness Williams of Trafford
I can talk about Sammy Woodhouse. The noble Lord will know that she was discussed in the other place. Victoria Atkins met Sammy Woodhouse on 14 March 2018 to talk through her ideas and understand how government can best help her and other victims of exploitation. The Minister said that the Government would work with the police, the CPS and others to protect future victims of exploitation and ensure that we do not unnecessarily criminalise those who have been exploited. In respect of Sammy’s law, the Government are considering the recent court judgment on previous convictions of victims but I cannot comment further due to ongoing legal proceedings.
Baroness Burt of Solihull (LD)
My Lords, this case is about three women who were sexually exploited as girls, forced into prostitution and therefore have convictions for soliciting. For years, the injustice perpetrated on them has been compounded, as they have been obliged to declare these convictions that they received in their early lives in job applications and even in applying for their local PTA. They won the High Court case, yet I understand the Minister to be saying that the Government have announced their intention to challenge the decision.
The Minister talked about the criminal record disclosure system seeking to,
“strike a balance between safeguarding children and the vulnerable and enabling individuals to put that offending behind them”.
I am struggling to see that balance. I know that the Government cannot comment on ongoing cases, but can the Minister tell us what the mechanism would be for the Government to think again and apply fairness and compassion in these cases?
Baroness Williams of Trafford
The noble Baroness is absolutely right that I cannot comment on an ongoing legal case. What I can understand—and what the Government have sought to do and succeeded in doing over the last few years—is to see people as both victims and perpetrators through some of the coercion and exploitation in which they have been involved. We will consider this as the case proceeds, but the Government have put a great deal of time and effort into working with people who have been exploited and who find themselves victims of child sexual exploitation, gangs, knife crime or drug involvement. There have been various interventions: the noble Baroness will have listened to debates on the Offensive Weapons Bill and will have heard me outline the youth endowment fund, which we are bringing forward. She will have listened to the various multiagency approaches to helping victims of child sexual exploitation get over the terrible pain that has been caused to them, to avoid getting trapped in what originally happened to them, and to go on to lead good lives.
Baroness Hollins (CB)
My Lords, it is very concerning to hear that young people who have been groomed into criminal activity and then become victims of sexual abuse and discouraged from even disclosing their abuse because of the fear of their own criminalisation should then not have the opportunity to have those crimes forgotten. Can the Minister tell the House whether such young people are also then denied access to criminal injury compensation? Is this indeed the case?
Baroness Williams of Trafford
The noble Baroness will of course appreciate that every case is different. She will also realise that, as I just outlined to the noble Baroness, Lady Burt, the big spectrum of exploitation that children can suffer can also manifest itself in different ways. The Government are determined to deal with some of these problems at source, with early intervention and prevention, so that children do not find themselves sexually exploited and are able to go on to lead lives that are free from the sorts of harms that we have been talking about.
Children: Covert Human Intelligence Sources
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Baroness Jones of Moulsecoomb
To ask Her Majesty’s Government, further to the debate on the regret motion on the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 on 16 October 2018 (HL Deb, cols 435–50), what assessment they have made of the recruitment, use, deployment, numbers and oversight of children used as spies by the police.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Investigatory Powers Commissioner, Lord Justice Fulford, undertook to report on this issue. He has now written to the chair of the Joint Committee on Human Rights with his findings, and a copy of the letter has been placed on his website.
Baroness Jones of Moulsecoomb (GP)
I thank the Minister for that response. Does she agree that the police setting targets for increasing the number of child spies in each region goes beyond what the Minister told us before—that this is a rarity? I have been alerted by a whistleblower that the police are doing exactly this. There is no way I can check, so will the Minister check for us and report back to the House?
Baroness Williams of Trafford
I most certainly will. Obviously, the police are operationally independent of the Home Office, and I do not know why they would be setting targets for this. The noble Baroness referred to the letter of Lord Justice Fulford, which says that 17 juvenile covert human intelligence sources, or CHISs, have been used in the past three years. When she refers to targets, I assume she means targets upwards, but I will certainly look into the matter.
Lord Paddick (LD)
My Lords, the UN Convention on the Rights of the Child states that all those under the age of 18 should be treated as children, yet the Government allow the police to recruit 16 and 17 year-olds as informants without an appropriate adult being present. Accepting that it does not have to be a parent or guardian if they are also involved in criminality, can the Minister explain why such children cannot be questioned as a suspect in a criminal investigation without an independent adult being present but they can be recruited as an informant?
Baroness Williams of Trafford
The noble Lord and I have gone over this on a number of occasions; the situation reflects the emergence into adulthood of 16 and 17 year-olds. That said, where anybody undertakes covert human intelligence, there is always an independent assessment of various aspects of their personality, their willingness and their ability to undertake such a difficult task.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I recall from our previous discussion on this issue that the young people involved are likely to be the children of people the authorities are interested in. That puts these children in a very dangerous situation. What measures are in place to ensure that children are protected and do not feel pressurised into undertaking this dangerous activity?
Baroness Williams of Trafford
The noble Lord brings forward an important point: someone recruited as a covert human intelligence source might be the child of someone who is already involved in criminal activity. Anybody under the age of 16 cannot be involved in anything to do with their parents.
Lord Lexden (Con)
Who conducts the independent assessment of potential child spies, to which my noble friend referred, and what happens to the results of those assessments?
Baroness Williams of Trafford
The Investigatory Powers Commissioner has oversight of all decisions taken on these children.
Baroness Lister of Burtersett (Lab)
My Lords, do the assessments to which the noble Baroness referred include an assessment of the best interests of the child under the UN convention?
Lord Watts (Lab)
My Lords, is the increase due to the amount of criminals who are now using young people, especially in the drugs-related elements of crime? What are the Government doing to address that problem?
Baroness Williams of Trafford
My Lords, a number of complex matters are driven by knife crime, by gangs, by county lines and by drugs, and the noble Lord is right to raise the issue. I have gone through the various things we are doing on knife crime—including the Offensive Weapons Bill—and the various aspects of what we are doing to tackle drugs, most notably a public health approach to the issue.
Baroness McIntosh of Hudnall (Lab)
My Lords, the noble Baroness referred to children under 16 not being allowed to be involved in intelligence involving their parents. Does that prohibition include other family members—for example, siblings or carers who are not their parents?
Baroness Williams of Trafford
I know the prohibition involves parents. I do not know about siblings—I shall get back to the noble Baroness on that—but any family affiliation would make it difficult to ask them to undertake such a thing.
Lord West of Spithead (Lab)
My Lords, does the Minister agree that the Investigatory Powers Act has been the most amazingly successful piece of legislation? It has enabled us, for example, to identify the growth in right-wing extremism, into which the agencies have put a great deal of effort recently. We should be pleased that it went through this House and the other House and is now on the statute book.
Baroness Williams of Trafford
The noble Lord is right, especially given the events of the past few weeks,
Lord Pannick (CB)
My Lords, are there guidelines which restrict the use of children in this way to cases where the suspected offences are very grave indeed and where there are no other means available to obtain necessary evidence?
Baroness Williams of Trafford
The noble Lord will appreciate that I cannot talk about operational matters. I hope he will be comforted by the fact that the use of a juvenile as a covert human intelligence source is only in exceptional circumstances.
Lord Haskel (Lab)
When we discussed this on previous occasions, the Minister promised us a much higher level of judicial supervision over the process. Is that in place?
Baroness Williams of Trafford
At the time, I said that Lord Justice Fulford, the Investigatory Powers Commissioner, provided the oversight needed. The noble and learned Lord, Lord Judge, had referred to judicial oversight, which I explained would require primary legislation. I said that Lord Justice Fulford provided a sufficient level of oversight and that it was satisfactory at this point.
Immigration (European Economic Area Nationals) (EU Exit) Order 2019
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Baroness Williams of Trafford
That the draft Order laid before the House on 11 February be approved.
Relevant document: 19th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I beg to move that the House approves the draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019. Delivering a deal with the EU remains the Government’s priority. We are nevertheless preparing for a range of scenarios. As the Prime Minister has pointed out, the legal default in UK and EU law is that the UK will leave without a deal on 29 March unless something else is agreed.
UK domestic law has given effect to our obligations in the fields of immigration, nationality and asylum arising from our membership of the European Union. The UK has also been subject to directly effective EU law. When we leave the EU, aspects of our legislation and retained direct EU law will fail to operate effectively. They will contain deficiencies if they are not modified or revoked by this instrument.
These regulations make changes to a range of measures in domestic primary and secondary legislation to prevent, remedy or mitigate deficiencies in law arising from the UK’s exit from the EU. They ensure that our statute book operates on exit day if the UK leaves the EU without a deal until new legislation on these issues is commenced.
First, the instrument makes the technical changes required to correct wording in our legislation that describes the UK in terms of our membership of the EU or the European Economic Area. The changes do not alter the effect of the legislation. Similarly, it makes technical amendments to domestic legislation that refers to EU rights that are retained by the European Union (Withdrawal) Act 2018.
Secondly, this instrument revokes relevant retained EU legislation relating to immigration. It also revokes a number of instruments that give effect to the UK’s membership of EU asylum acquis and which will be inoperable on exit. This is because, by leaving the EU, the UK also leaves the asylum acquis. This instrument therefore revokes the Dublin regulation and the Eurodac regulation.
The instrument makes a number of transitional and saving provisions—
Viscount Waverley (CB)
I think that every Member who has taken an interest in this has been in the Chamber, so the Minister can probably be allowed to continue. That is my view, but other Members may think differently.
Baroness Williams of Trafford
I have just taken advice and apparently I cannot do that. Please ignore everything I have just said.
On a day when you have three statutory instruments, an Urgent Question, a Question and a speech to deliver to the LGBT conference, this is what happens. I apologise to noble Lords that I have got the right speeches but in the wrong order. I will sit down for a minute to make sure that I have got the right instrument.
Baroness Williams of Trafford
Take two, my Lords. The Government’s priority is to protect the rights of EEA and Swiss citizens who are already here. Deal or no deal, they will be able to stay and apply to the EU settlement scheme, which will be fully open from 30 March.
Delivering a deal remains the Government’s priority. We are nevertheless preparing for a range of scenarios. In a no-deal scenario, we will end free movement as soon as possible after exit, subject to parliamentary approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. Once free movement has ended, transitional immigration arrangements will be in place until the new skills-based immigration system is introduced from January 2021. The intention is to minimise disruption at the border and avoid a cliff edge, providing initial continuity for EEA and Swiss citizens and for businesses. The Government announced these arrangements on 28 January.
I make it clear that these transitional arrangements will not apply to EEA and Swiss citizens resident in the UK before exit. These citizens will be able to apply to secure their status under the EU settlement scheme. Nor will they apply to Irish citizens, who, under common travel area arrangements, will continue to be able to enter and remain in the UK without requiring leave.
Those who are not eligible for the EU settlement scheme will require leave to enter once free movement has ended, and this order provides the mechanism by which that leave to enter will be granted. Such citizens will be granted leave to enter for a period of three months, automatically, upon arrival at the border. This means that they will be able to cross the border much as now, including using e-passport gates. They will not be questioned routinely or have their passport stamped. This leave will allow them to work, study or visit for short periods as we transition to the new skills-based immigration system to be introduced from 2021.
For many individuals, a single three-month period of leave will be sufficient. Others, such as regular business visitors or frontier workers who live in the EU but work in the UK, may wish to come on more than one occasion. The order will enable them to do so by granting leave to enter automatically on each arrival. As now, there will be some EEA and Swiss nationals whom we will not wish to enter the UK—for example, where their presence in the UK is undesirable on criminality or non-conducive grounds. Those who are the subject of exclusion or deportation orders or other specified decisions will not benefit from the automatic leave provisions, and Border Force officers will be able to cancel automatic leave where an individual’s presence in the UK is deemed to be non-conducive. Those who wish to remain for longer than three months would need to apply for European temporary leave before the end of the initial three-month period. This would give them a further 36 months’ leave to remain. These arrangements are a contingency plan, necessary only in a no-deal scenario, to allow us to transition smoothly from the end of free movement to the future skills-based immigration system.
The order also makes changes to support the EU settlement scheme in both a deal and a no-deal scenario. It provides that those granted settled status may be absent from the UK for up to five consecutive years without it lapsing. For Swiss citizens granted settled status or their family members, this period will be up to four consecutive years, in line with the citizens’ rights agreement negotiated with Switzerland. It also ensures that scheme leave granted to a Crown servant, to a permanent member of the British Council who is an EEA or Swiss national or to a member of Her Majesty’s forces will not lapse as a result of an overseas posting. This will also apply to a person with scheme leave accompanying them, or accompanying a British citizen, on such a posting. The order facilitates overseas applications to the scheme and clarifies that scheme applicants will not need to pay the immigration health charge.
These are important measures to support the delivery of the EU settlement scheme and our no-deal contingency plan. I beg to move.
Amendment to the Motion
Lord Marlesford (Con)
I would like to follow up that last point. It is what I have been talking about for years. We have totally inadequate means of knowing who has come in, when they have come in, when they should leave and whether they have left. The whole system is a shambles. This is an opportunity to get it right.
Baroness Williams of Trafford
I thank noble Lords for their contributions to this debate. My noble friend Lord Marlesford is correct; this is an opportunity to get it right.
It would probably be helpful to start by stating the purpose of this statutory instrument, and that, I hope, will go to some extent to my noble friend Lord Deben’s point. This statutory instrument is essentially a temporary arrangement in a no-deal situation, until free movement ends under the immigration Bill. In a no-deal scenario, we will end free movement as soon as possible after exit, subject to parliamentary approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. In a no-deal scenario, once free movement has ended, there would be a transitional period until the new skills-based immigration system is introduced in January 2021. This order ensures that during this period, we would minimise disruption at the border and provide initial continuity for EEA and Swiss citizens, and for businesses. The Government announced these transitional arrangements on 28 January. Regarding the points made by the noble Lord, Lord Paddick, about seeming to favour EU nationals, the whole point of this is to provide that transitional certainty.
The noble Lord, Lord Kennedy, talked about how the three-month period would be enforced. Obviously these are transitional arrangements, to be put in place only in the event of no deal. We cannot switch things off and on overnight, so we need to ensure that the correct legislation and operational plans are in place. It will take some time to prepare for our new skills-based immigration system, but the Government have been clear that our intention is for it to be in place by 2021.
These arrangements lay the foundations for the future. We cannot control European immigration until all EEA and Swiss citizens here have a UK immigration status, which will take some time. In a no-deal scenario, those resident here by 29 March 2019 will have until the end of 2020 to apply to the EU settlements scheme. These arrangements enable us to move from a rights-based system of free movement to a UK system where everyone requires permission to be here. Accordingly, until the new system is introduced, a proportionate, light-touch enforcement approach will be taken in respect of EEA and Swiss citizens. The noble Lord asked me to define “light touch”—I assume that it means without too much bureaucratic involvement in form filling and other matters that make life very difficult.
If an EEA or Swiss citizen is found not to have appropriate status, we will encourage them to make the relevant application. I am absolutely clear on the importance of clear communications so that individuals understand their status. This is imperative for those resident in the UK before we leave the UK on 29 March, and those who arrive here afterwards. Our focus is on encouraging and supporting EEA and Swiss citizens to acquire an appropriate status and ensure that they have sufficient time to do so. We are committed to a fair immigration system which operates with integrity and which welcomes those who are here legally. But we are clear that compliance with UK immigration laws and rules is essential in supporting this.
For those who arrive after free movement ends, we will make it clear that they need to apply for European temporary leave to remain before their three months’ automatic leave expires. Where they have good reason for not doing so, we will encourage them to make this application, or to leave the UK voluntarily, but where there is abuse of the system, we will consider enforcement action.
The noble Lord, Lord Kennedy, asked how long the application will take. Applications for 36-month temporary leave to remain will use the EU settlement scheme infrastructure, which allows them to be determined within a period of days. He also asked what will happen at the end of the three months to those who will have applied for 36 months’ leave. If a person applies for 36 months leave within three months, they can still stay lawfully in the UK until their application is decided.
The noble Lord, Lord Paddick, asked why the exemption from the immigration health surcharge is needed. The exemption in this order applies to those applying for leave under the EU settlements scheme, not those who obtained three months’ leave to enter under part 2 of the order. The noble Lord also asked if people could leave the UK, then return and obtain a further three months. The answer is yes.
The noble Lord, Lord Kennedy, asked about the three months’ automatic leave to enter. The order provides that in a no-deal scenario, three months’ leave to enter would be granted to EEA and Swiss citizens who required such leave once free movement has ended. It would be granted automatically upon arrival at the border, allowing them to work, study or visit for short periods as we transition towards the new skills-based immigration system, to be introduced from 2021.
The noble Lord, Lord Paddick, asked about consultation on the order. These are transitional arrangements to ensure that the border remains fluid after the end of free movement, and until we move to the order arrangements, from 2021 onwards. These plans were set out in the Government’s White Paper, The UK’s Future Skills-Based Immigration System, and the Government intend a 12-month period of engagement on such plans. The noble Lord also asked about the exit checks on EU nationals now. They will be introduced when we leave.
Immigration, Nationality and Asylum (EU Exit) Regulations 2019
Baroness Williams of Trafford Excerpts(5 years, 8 months ago)
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That the draft Regulations laid before the House on 11 February be approved.
Relevant document: 19th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, delivering a deal with the EU remains the Government’s priority. We are nevertheless preparing for a range of scenarios.
UK domestic law has given effect to our obligations in the fields of immigration, nationality and asylum arising from our membership of the European Union. The UK has also been subject to directly effective EU law. When we leave the EU, aspects of our legislation and retained direct EU law will fail to operate effectively. They will contain deficiencies if they are not modified or revoked by this instrument.
These regulations make changes to a range of domestic primary and secondary legislation to prevent, remedy or mitigate deficiencies in law arising from the UK’s exit from the EU. They ensure that our statute book operates on exit day if the UK leaves the EU without a deal until new legislation on these issues is commenced.
First, the instrument makes technical changes required to correct wording in our legislation that describes the UK in terms of our membership of the EU or European Economic Area. The changes do not alter the effect of the legislation. Similarly, it also makes technical amendments to domestic legislation that refer to EU rights that are retained by the European Union (Withdrawal) Act 2018.
Secondly, this instrument revokes relevant retained EU legislation relating to immigration. It also revokes a number of instruments which give effect to the UK’s membership of the EU asylum acquis and which will be inoperable on exit. This is because by leaving the EU, the UK also leaves the asylum acquis. The order therefore revokes the Dublin regulation and the Eurodac regulation—that is where I got up to last time.
The instrument makes a number of transitional and saving provisions in relation to the measures being amended by it. This is so that the amendments do not have an inappropriate effect in respect of decisions or other action taken before their commencement.
Finally, this instrument applies the UK rules for criminality to EEA, Swiss and Turkish nationals; the amendment applies only to their conduct after exit. Our intention to apply the same rules to new arrivals, irrespective of the country from which they come, has already been announced by my right honourable friend the Home Secretary.
The Government believe that we must plan for every eventuality, including a no- deal scenario. Through introducing this instrument, they are taking practical steps to ensure that the UK statute book operates effectively on exit in the event that the UK leaves the EU without a deal.
This instrument will prevent deficiencies in immigration and asylum law arising from the UK leaving the EU. It ensures continuity until the Immigration and Social Security Co-ordination (EU Withdrawal) Bill allows the Government to introduce the new future borders and immigration system. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, the Secondary Legislation Scrutiny Committee states that the Home Office anticipates that loss of provisions of the Dublin regulations will have a minimal impact on how those seeking asylum in the UK are handled, yet the British Red Cross, which does invaluable work with asylum seekers in the UK, has raised real concerns in its briefing. I propose to raise just one—that which it says concerns it most.
As I understand it, the Government have committed only to maintaining the Dublin III regulation for unaccompanied children. Of course, that is welcome. However, it will leave many who are currently able to use Dublin III’s family reunion provisions excluded. In 2018, of 1,215 Dublin III arrivals, only 159 were unaccompanied children under Article 8, and 869 were wider family reunion cases under Article 9, which allows people who claim asylum in another Dublin member state to join a relative in the UK who has been granted protection. Will the Minister give a commitment that the Government will retain these Dublin protections in our domestic law post Brexit? I believe that this would require an amendment to our family reunion legislation. This would give substance to the Home Office’s assurance that loss of the Dublin provision will have minimal impact—or, in the words of the Explanatory Memorandum,
“a small impact on net asylum transfers”.
If the 2018 pattern continues, we would otherwise be excluding more than 70% of Dublin III arrivals if this commitment is not given. Is this really what the Government intend?
Baroness Williams of Trafford
I thank all noble Lords who have taken part in the debate. By far the biggest area that noble Lords concentrated on was of course the Dublin regulation. The regulation contains rules to establish the criteria and the mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national or stateless person and the legal framework for returning and accepting asylum seekers to and from the EU. As I said, the instrument ensures that the statute book will continue to function effectively in a no-deal scenario for asylum and provide transitional arrangements.
In the event of a no-deal scenario, retained EU law becomes deficient, and with respect to asylum, the regulations we use to repeal the Dublin regulation and other common European asylum system measures that we are part of—for example, Eurodac, as the noble Lord, Lord Paddick, pointed out, and the European Asylum Support Office temporary protection directive—will reflect that we will no longer be part of the acquis. This SI ensures that the statute book will continue to function. However, should the UK leave without a deal, Dublin requests relating to family reunification still pending resolution will continue to be considered under the existing provisions, and that will apply to any take-charge requests that we have received before exit day.
The noble Baroness, Lady Lister, asked whether the Dublin regulation will apply in the event of no deal. I will give an example of the numbers we are talking about. Clearly, we will not be a participating state in the Dublin regulation. While this presents a challenge, it also presents in some ways an opportunity to seek new agreements with the EU on asylum which better reflect our position as a third country. Since 2016, we have accepted more Dublin transfers than we have returned to our EU partners. The latest statistics, published in March of this year, show that 209 people were returned to the EU 27 under Dublin in 2018, making up around 5% of the total asylum returns. The Government have committed under the European Union (Withdrawal) Act to seek to negotiate an agreement with the EU that will permit unaccompanied asylum-seeking children to join family members. It would replicate a similar mechanism in the Dublin regulation which would allow children under 18 to join close family members where it is in their best interests.
On returning any individuals under other routes—I think the noble Lord, Lord Paddick, asked me about that—we will always seek to return those who do not require international protection or have the right to be here in accordance with domestic law. We will continue to make returns to countries where appropriate, and on a case-by-case basis.
Continued co-operation on migration issues is in the shared interests of the UK and the EU. We will work to secure a comprehensive returns agreement with the EU to replace our obligations under Dublin once we leave the EU. If unsuccessful, we will look to work bilaterally with EU member states to strengthen our relationships. For example, we will look to build and strengthen our reciprocal agreements with France as set out in the Sandhurst treaty.
The noble Baroness, Lady Lister, talked about family reunification without Dublin, as did the right reverend Prelate the Bishop of Durham. We strongly support the principle of family unity, and there are several routes by which families can be reunited safely. The UK’s family reunion policy is generous, and we continue to reunite refugees with their immediate family, including by granting over 26,000 family reunion visas over the last five years. We are considering the options to ensure effective co-operation on family reunification of asylum seekers after exit. Deal or no deal, Dublin requests relating to family reunification still pending resolution will continue to be considered under the existing provisions, and, as I said, this would apply to any take-charge requests that we received before exit day.
Baroness Lister of Burtersett
Before the Minister moves on, can I be clear that the Government will look at the broader family reunion position? Can she give us an assurance that the aim will be that there should not be any diminution of rights for family reunion that currently exist under Dublin III?
Baroness Williams of Trafford
I can give an absolute assurance to the noble Baroness that those obligations, which we take seriously and have done for decades, will continue to apply in giving people who need it asylum or refuge. That is why I just went through the various channels and resettlement schemes that we have engaged in. It does not diminish our will to give people who need it refuge and asylum in our country.
I shall move on, but I stay on Dublin. I think it was the noble Lord, Lord Paddick, who asked about any other international agreements affecting asylum that would be affected by Brexit.
Baroness Williams of Trafford
No, it was not; I am making that up, but I think someone asked it. As a signatory to the 1951 UN refugee convention and the ECHR, we are committed to continuing to fulfil our responsibility. The UK is part of a number of EU readmission agreements with third countries; we are working to replace a number of them with bilateral agreements.
I think this goes to the point made by the noble Baroness, Lady Lister. Our attitude is not changing towards asylum seekers because of Brexit. She will know, because I have said it before, that in 2017, the UK received the fifth highest number of asylum claims in the EU, and since 2016, we have accepted more Dublin transfers than we have returned, as I referred to earlier. In the year ending June 2017, we resettled more than 16,000 refugees from outside the EU, more than any other EU member state and more than a fifth of all resettlement to the EU. We can also be proud of our leading role in supporting children affected by the migration crisis. Since the start of 2010, the UK has granted more than 51,000 children resettlement, refugee status or alternative forms of protection.
The noble Lord, Lord Paddick, definitely asked about admissibility, and I think the noble Baroness, Lady Ludford, referred to it as well. We have always believed that people should be prevented from making claims in more than one country and on multiple occasions. Asylum should always be claimed in the first country that a migrant reaches, as the noble Baroness said. It is vital that our new system does not encourage asylum-seekers who have already reached a safe country to choose to move elsewhere, so we will continue to assess each asylum claim on its individual merits, as set out in the Home Secretary’s Statement to the House on 7 January.
If an individual has travelled through a safe third country and failed to claim asylum, that will be taken into account in assessing the credibility of their claim. This is a widely held principle accepted by the UNHCR, and it is important to send a clear message to smugglers and traffickers and discourage secondary movements. The standards for protection and assistance will in no way be diminished by the UK’s exit from the EU.
On returning asylum-seekers, the UK is attempting to negotiate an ongoing EU-UK readmission agreement which will replace the current Dublin return capability, and this would ideally be underpinned by a biometric system like Eurodac, although clearly it will not be identical to Eurodac. Inadmissibility rules are domestic law and will still be in place regardless of whether the UK leaves the EU.
Finally, the noble Lord, Lord Kennedy, asked why we are using an SI, not the Bill, to legislate. It is important to ensure that the statute book is operable on exit date, especially in a no-deal scenario. As the Bill has just completed its Committee stage in the Commons, we do not expect it to make it in here by 29 March. With that, I hope that I have answered all the questions and I commend the Motion.
Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019
Baroness Williams of Trafford Excerpts(5 years, 8 months ago)
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Baroness Williams of Trafford
That the draft Regulations laid before the House on 15 January be approved.
Relevant documents: 17th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A). Considered in Grand Committee on 12 March.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the instrument that the House is invited to approve today was debated in Grand Committee last Tuesday. The noble Lord, Lord Paddick, was unable to take part, but we had a good and thorough debate, so I shall keep my remarks brief and confine them to the points raised by him in his amendment.
However, it is perhaps worth underlining what we want to achieve in regard to law enforcement and security as we exit the EU. We all want to protect the operational capabilities that help the police, law enforcement and prosecutors do their jobs in protecting the public and bringing criminals to justice. The Government’s position remains that the best way to do that is to exit with a deal. However, it is right and necessary that we prepare for all eventualities, including the no-deal scenario that most of us do not want to see. The instrument before the House forms part of the programme of secondary legislation that the Government have been bringing forward to ensure that there is an effectively functioning statute book on exit day. It addresses deficiencies in our domestic statute book that would arise if we leave the EU without a deal, focusing in particular on deficiencies in the area of security, law enforcement, criminal justice and some security-related regulatory systems. It is important to be clear that the regulations play no part in bringing about the UK’s withdrawal from the EU. Rather, the purpose of the instrument is to make amendments to the UK’s domestic statute book, including retained EU legislation, to reflect that new situation.
Having said a few words about what the instrument does, I should also be clear about what it does not set out to do. For the most part, the instrument is not a vehicle for implementing the Government’s policy response to a no-deal exit. Our contingency arrangements for co-operation with EU partners on security, law enforcement and criminal justice involve making more use of Interpol, Council of Europe conventions and bilateral channels. These are existing alternative channels, outside the EU, that are already in use between the UK and many other non-EU countries. Accordingly, they do not require domestic legislation to set up. That is why those contingency arrangements are largely outside the scope of what these regulations set out to do. Even the Council of Europe Convention on Extradition, in respect of which this instrument links into our contingency arrangements, is already in place and in day-to-day use by the UK with non-EU countries. I beg to move.
Amendment to the Motion
Lord Kennedy of Southwark (Lab Co-op)
My Lords, these matters were debated in Grand Committee on 12 March. I expressed then, as I do now, that I very much agree with the report of the Secondary Legislation Scrutiny Committee, Sub-Committee A. It expressed the concerns about the way this regulation has been brought forward. It is fair to say that it was quite damning of how the Government presented the regulations to both Houses of Parliament.
Recommendation after recommendation highlighted how inadequately information was presented to Members of both Houses. In Committee, I very much agreed with the comments of the noble Baroness, Lady Hamwee. I supported everything she said, except that if the measures came before the House, I would not vote to stop them coming into force. However, at the end of the day, we do not have a fatal Motion here. The regulations are badly drawn up, with little regard to the needs of either House. As I said, that point was made by the sub-committee but endorsed by everyone who spoke in Committee. I also concur with the comments of the noble Lord, Lord Paddick, from the Liberal Democrat Front Bench.
I have a few other points to make. I do not intend to go into them in detail because I made a lot of them in Committee. I am very concerned that we could lose access to the European arrest warrant and may have to go back to relying on the 1957 Council of Europe Convention on Extradition. That is a retrograde step; the only people who would welcome it are criminals—no one else. I am also concerned about the loss of access to databases. In Committee, I also mentioned the issue of the Schengen information system and Prüm. I do not recall whether I got an answer to my questions. What will be the situation there? Can the Minister comment on Europol and Eurojust? Again, I want to hear more than just, “We are working on it”. These issues are important and we want to know where we stand.
The report is damning, as I said. I hope that the department will learn a lesson from it. I do not think that committees put forward such suggestions lightly. We want proper scrutiny. We want to ask questions and put everything together in one place but it has not worked and I hope that we will not see anything else like it in future. I will leave it there.
Baroness Williams of Trafford
I thank noble Lords for their points, many of which were made the other day in Committee. It is important to be clear from the outset that the regulations play no part in bringing about the UK’s withdrawal from the EU, about which many comments were made. I just want to clear that up. Obviously, the consequences flowing from that include ceasing our ability to co-operate with EU member states through this suite of tools and measures.
As I said the other day, the instrument’s purpose is to make amendments to the UK’s domestic statute book, including retaining EU legislation to reflect the new situation. The changes we are making in the instrument are ones that we cannot and should not avoid in the event of a no-deal exit. The regulations do not contain significant policy choices. For that reason, as I have already said, we do not accept that the changes introduced by the instrument should be of concern to this House.
The noble Lord, Lord Paddick, suggests in his amendment that,
“Her Majesty’s Government have provided insufficient information in relation to the statutory instrument’s policy objectives and intended implementation”.
That point was made by the Secondary Legislation Scrutiny Committee, at whose request the Government produced a second, revised Explanatory Memorandum in addition to both the original one and the impact assessment published alongside the instrument.
The noble Lord, Lord Kennedy, has been consistent on the committee’s comments; he made the same point today as he did the other day. I took it on board the other day and I do so again today. As we made clear in writing to the committee, the original, longer Explanatory Memorandum was provided in good faith to provide the committee and other users of it with a thorough explanation of each provision in the instrument. We anticipated that the level of detail provided would be helpful to anyone with an interest in a specific part of the instrument. However, we took on board the committee’s view that we had not struck the right balance and that the Explanatory Memorandum was too long, and therefore provided the shorter one. The committee confirmed in its report that it considers the revised Explanatory Memorandum to be “more accessible” and “more user-friendly”.
All these documents, both Explanatory Memorandums and the impact assessment, attempt to isolate and describe the practical effect of the regulations themselves—what difference it makes if we do or do not legislate as proposed in these regulations—rather than the wider impact of EU arrangements in this area falling away as a consequence of a no-deal exit. But in publications, debates and Select Committee hearings we have provided and continue to provide information to Parliament about those wider impacts. Overall, the making of this instrument will provide legal and operational certainty for the public sector, including law enforcement and criminal justice partners across the UK, such as the NCA and our police and prosecution services.
I will address policy areas. I reiterate that the regulations cover three subject areas: security, law enforcement and judicial co-operation in criminal matters currently underpinned by EU legislation; security-related EU regulatory systems for which the Home Office is responsible; and domestic legislation affecting the police and affecting investigatory powers made deficient by EU exit.
On security, law enforcement and judicial co-operation in criminal matters, the noble Lord, Lord Paddick, pointed out that the regulations address deficiencies in connection with EU measures with a justice and home affairs legal base. Reflecting their shared underlying legal base, these measures all relate in some way to law enforcement and security in their subject matter, and in many cases interact with each other at an operational level. For example, the Schengen Information System, which the noble Lords, Lord Kennedy and Lord Paddick, referred to, circulates the European arrest warrant alerts. The regulatory regimes, while not having a JHA legal base, have a similar underlying purpose: to prevent, detect and prosecute criminal activity and to maintain security. Given that they are linked policy areas and that the changes being made are very similar across most parts of the instrument, we considered that combining them in a single instrument would assist scrutiny by providing as complete a picture as possible in one place. I accept the points made today by the noble Lord, Lord Paddick, and the other day and today by the noble Lord, Lord Kennedy.
The noble Lord, Lord Paddick, then went on to talk about contingency planning. Our contingency arrangements in this area are largely outside the scope of the specific changes introduced by these regulations. However, they are clearly and properly a matter of great interest to Members of this House. They have undergone detailed scrutiny by the EU Home Affairs Sub-Committee of the European Union Select Committee in this House and the Home Affairs Select Committee in the other place. As the Government have made clear in both Houses, the continued safety and security of both UK and EU citizens remains our top priority. That is why we are preparing to move our co-operation with EU member states in a no-deal scenario from EU channels to alternative, non-EU mechanisms. Broadly speaking, this would mean more use of Interpol, the replacement for Europol—the noble Lord, Lord Kennedy, asked about this—Council of Europe conventions and other forms of co-operation with European partners, such as bilateral channels. Our contingency plans are largely tried and tested mechanisms that we already use for co-operating with many non-EU countries. However, as we have made clear, they are not like-for-like replacements for EU tools and would result in a reduction of mutual capability in both the UK and the EU. For the most part, the legal framework for these contingency arrangements is already in place: the non-EU mechanisms we are moving to already exist and we already use them with other countries.
One thing that noble Lords brought up on contingency was extradition, which was brought up the other day. The regulations support implementation of the no-deal contingency in this area. They will ensure that in the event of a no-deal exit, we have the correct domestic legal underpinning to operate the no-deal contingency arrangements for extradition—the 1957 Council of Europe Convention on Extradition—with EU member states. To be clear, the amendments under the Extradition Act are not purely discretionary. Once we leave the EU and cease to be bound by the EAW regime, our rights and obligations towards EU member states under the 1957 convention will revive. Under international law, we will be under an obligation to be able to fulfil them and to equip ourselves to do so.
Terrorist Attack: New Zealand
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The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, with the leave of the House, I shall repeat an Answer to an Urgent Question asked in the other place earlier today. The Answer is as follows:
“Thank you, Mr Speaker, and I am grateful to the honourable lady for asking the Question so that the Government can set on record our position towards extreme right-wing, neo-Nazi and other types of violent terrorism. The Home Secretary would have liked to respond personally to this Urgent Question, but he was visiting Regent’s Park mosque with the Communities Secretary today to show support for British Muslims, following last week’s horrific terrorist attack in Christchurch. The attack was a sickening act of terrorism which this Government condemn, as we do the incident reported in Utrecht today and the attack in Surrey on Saturday evening.
The Government take all forms of terrorism and extremism seriously. Our counterterrorism strategy, Contest, does not differentiate between what motivates the threat. It is designed to address all forms of terrorism, whatever the ideology, be it Islamist, neo-Nazi, far-right or extreme left-wing.
If we are to tackle terrorism in the long term, we must challenge those seeking to radicalise people. The Prevent policy is designed to safeguard our vulnerable citizens from being recruited or motivated into terrorism. That is why I always urge people to get behind the policy. Our counterterrorism strategy is agnostic to the threat. It is not relevant to us what name terror strikes; it is the use of violence and hate that we seek to stop. Government and law enforcement will direct their funding wherever the threat emerges, and if we are to stay one step ahead as the threat changes, so must the funding. We will continue to keep funding for protective security measures under review as that threat moves, and will indeed consistently be reviewed for places of worship and other areas that may be vulnerable.
Social media platforms should be ashamed that they have enabled a terrorist to live-stream this evil massacre and spread this mantra of hate to the whole world. As the Home Secretary has made clear, “Enough is enough”. We have been clear that tech companies need to act more quickly to remove terrorist content and ultimately prevent new terrorist content being made available to users in the first place. This must be a wake-up call for them to do more. There can be no safe spaces for terrorists to promote and share their sick views. The online harms White Paper will be published imminently and it will set out clear expectations for tech companies to keep users safe, and what will happen if they fail to do so. This Government take the growing threat of the extreme right wing extremely seriously, and I can assure the House and our Muslim communities that we will stand together to counter it wherever it manifests itself in our society”.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, first, I condemn the terrorist attack in Christchurch, the attack in Utrecht and the attack yesterday in Surrey. All the victims of these incidents are in my thoughts and prayers. Terrorists can never be allowed to win; we utterly reject their message of hate, violence and killing. I also express my anger and disappointment at the actions of the social media companies following the terrorist attack in Christchurch—time and time again, they fail us. They are publishers and are responsible for the content on their platforms. Can the Minister confirm that the White Paper she referred to in her Statement will be the start of putting on the statute book the toughest laws possible in the UK to ensure that these companies understand their responsibilities and that there will be serious consequences where they fail to take them seriously?
Baroness Williams of Trafford
I absolutely confirm to the noble Lord that the White Paper and its consequent legislation will tackle this. I have had numerous contacts with CSPs; on each occasion, I have made this point most strongly. They have heard submissions from the honourable Member Luciana Berger about some of the disgusting content about her that has been put online. I have only to look at Twitter to see some of the absolutely appalling comments that people make, particularly about Members of either your Lordships’ House or of the other place. To put such a video online is the final straw, so I totally agree with my right honourable friend the Home Secretary, and the sooner this legislation comes, the better.
Baroness Hussein-Ece (LD)
My Lords, I also associate myself with the remarks of the noble Lord, Lord Kennedy. The absolutely shocking events in Christchurch last Friday sent shockwaves right around the world, particularly in this country—Muslims here were fearful of going to a mosque on Friday as well. It is clear now that Muslims need more than thoughts and prayers because many fear that this can and will very likely happen in the UK.
I am glad the Minister highlighted social media responsibilities. The media and some politicians have created a climate in which far-right ideology and commentary can flourish—by giving platforms to right-wing hate preachers and to journalists who write racist opinion pieces, and to those who support Islamophobia on TV. Words have consequences—these events did not happen in a vacuum—and these are no longer fringe ideologies but ideologies tolerated and dressed up as freedom of speech. Will the online harms White Paper that the Minister mentioned include looking at mainstream media? The comments on online mainstream media pieces, such as those on Mail Online, are equally disgraceful and as disgusting as those on social media. That needs to be seriously looked at.
The Minister mentioned the Prevent programme, but it has, until recently, failed to challenge or change the attitudes of those on the far right. We urgently need an anti-extremism strategy that addresses the subversive far-right activity that has been allowed to flourish. Will the Government use their powers to take direct action to tackle these far-right extremists, and will the review of the Prevent programme investigate how the far right has been mainstreamed? As I mentioned, it has been given regular platforms, especially on channels such as the BBC. Last Friday on “Newsnight”, disgracefully, a hate organisation called Generation Identity was invited to comment on the murders. What will be done about this?
Baroness Williams of Trafford
I thank the noble Baroness for her comments. To start with her last point, I understood that some of Generation Identity’s members were supposed to be speaking at an event last year in this country and that the organisers cancelled the event so that Generation Identity could not have a platform to spread its hate. None the less, the mainstream media invited a comment from it.
The White Paper is entirely the platform from which to discuss—effectively, it is a pre-consultation on the legislation—whether mainstream media should be included. Mainstream media should also get its religious literacy right. The noble Lord, Lord Singh, who is not in his place, always talks about it: people are very sloppy with language. We all have a responsibility to be careful about that. The noble Baroness talked about people saying things in the name of freedom of speech, but with freedom of speech comes the responsibility to not let hate take hold. I have often heard freedom of speech used as an excuse to mete out hate and division towards other people—wherever they might be, but particularly in communities where they seem to have a grip.
She also talked about Muslims living in fear—and Muslims are in fear. In Manchester on Friday, I felt a terrible sense of unease. However, there was a lovely vigil on Friday evening, where people of all faiths came together—it was really touching. While people were out celebrating St Patrick’s Day in one bit of Manchester, in another part, just nearby, everyone of any faith and none was coming together to think and pray for our friends in New Zealand.
The noble Baroness also talked about Prevent, which is as much about the far right as it is about Islamist extremism. In fact, we are absolutely cognisant of the referrals to Channel on that issue over the past couple of years having increased significantly, going from 30% to nearly 50% of all referrals. We cannot talk about Prevent without talking about the far right.
Baroness Warsi (Con)
My Lords, I add my voice to the sentiments of all three Front-Benchers. Does my noble friend agree with the comments made by the most reverend Primate the Archbishop of Canterbury, who described those who co-opt Christian language in their hate and speak about a Europe of Christendom against Muslims as “blasphemous”? Does she also agree that, despite numerous mentions of Christianity, biblical teachings and crusade references in the manifesto and act of the New Zealand terrorist, we do not believe this to be a Christian terrorist, nor do we believe that Christianity and Christians are to blame?
I hear my noble friend’s sentiments about being shocked, but does it surprise her that I am neither shocked nor surprised by this act? It has been a long time coming. Many of us have warned the House about the rise of Islamophobia. Therefore, would my noble friend consider some real action to come out of this tragedy? I do not necessarily expect an answer today, but will she take back and consider the Government adopting the definition of Islamophobia as detailed by the All-Party Parliamentary Group on British Muslims? That definition has now been adopted formally by the Liberal Democrats and is being considered and supported by the Labour Party. The party in government is the only party refusing to accept it.
Will she also ask her department to end its policy of disengagement with British Muslims, which has now been in place for more than a decade? Will she send out an unequivocal message that Islamophobia will not be tolerated in politics, specifically not by the party in government? We can do that by ending the culture of denial in our party and instigating an independent inquiry.
Baroness Williams of Trafford
I thank my noble friend for her points. On her last point about Islamophobia, I think she knows that any hatred towards anybody, regardless of their colour or creed, is absolutely deplorable to me. Certainly, if she or anyone else refers to me any examples of Islamophobia they have witnessed or had reported to them, I will take action and follow up on it immediately.
My noble friend asked about the policy of disengagement. We will engage with people who share our values, abide by the rule of law and are committed to the tolerance of different faiths in our society. I know that my right honourable friends the Home Secretary and the Communities Secretary held an Islamophobia round table last week, which discussed the Anti-Muslim Hatred Working Group working on a definition of Islamophobia. I am sure that the definition the APPG came up with will provide food for thought.
My noble friend talked about being shocked but not surprised. I am shocked but not surprised every day of the week by some of the things happening in society. Two years ago, it started in earnest on the streets of this country. We must constantly be shocked by it, otherwise I do not think that anything would be done. I have just been told that I am out of time, but I will finish on the words of the most reverend Primate the Archbishop of Canterbury about Christianity. Christianity, or any other religion, can never be used as an excuse to do the sort of things we have seen on our streets and on the streets of other countries.
Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019
Baroness Williams of Trafford Excerpts(5 years, 8 months ago)
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Baroness Williams of Trafford
That the Grand Committee do consider the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019.
Relevant document: 17th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Committee will be aware that the Government are preparing for all scenarios relating to the UK’s withdrawal from the EU, including the scenario in which the UK leaves the EU without a deal at the end of this month. As part of these preparations, the Government are bringing forward a programme of secondary legislation intended to ensure that there is an effectively functioning statute book on exit day. The instrument forms part of that programme of secondary legislation. It addresses deficiencies in our domestic statute book that would arise if we leave the EU without a deal, focusing in particular on deficiencies in security, law enforcement, criminal justice and some security-related regulatory systems.
By way of context, the UK currently participates in a number of EU tools and measures that support security, law enforcement and judicial co-operation in criminal matters—some of which, like the European arrest warrant or Europol, will be familiar. We also participate in a number of security-related EU regulatory regimes relating to firearms, drug precursors and explosive precursors. Should the UK leave the EU without an agreement at the end of the month—the no-deal scenario—the UK’s access to those tools and measures would cease.
At the same time, the UK would cease to be bound by those security-related EU regulatory systems. This decoupling would occur as a result of the UK having withdrawn from the European Union after the Article 50 notification not as a result of the provisions found in this instrument. It is important to be clear that the regulations play no part in bringing about the UK’s withdrawal from the EU; rather, the purpose of the instrument is to make amendments to the UK’s domestic statute book, including retained EU legislation, to reflect a new situation. The changes we are making in the instrument are the ones we cannot, or should not, avoid in the event of no deal. The regulations do not contain significant policy choices.
Against this backdrop, the regulations will do three main things. First, they will revoke or amend retained, directly applicable EU legislation and domestic legislation in the areas of security, law enforcement, criminal justice and some security-related regulatory systems. This will ensure that the statute book continues to function effectively in a no-deal scenario. It is important to emphasise that where the regulations revoke retained EU law or connected domestic law, this is not expected to have a practical real-world effect because the underlying EU instruments would cease to be available to the UK upon withdrawal from the EU in any event. For example, in a no-deal scenario, our membership of Europol will end on 29 March by virtue of the UK ceasing to be an EU member state rather than as a result of the retained Europol regulation being revoked by this instrument.
Secondly, where necessary, the instrument includes transitional or saving provisions to address live or in-flight cases—that is, provisions confirming how cases live on exit day should be dealt with or how data received before exit day should be treated. This will provide certainty for operational partners, such as the police and prosecutors, who currently operate the EU tools and measures and need to be clear on what activity can continue and on what terms at the point of exit. Thirdly, in the case of extradition, the instrument will ensure that the UK has the correct legal underpinning to operate the no-deal contingency arrangement for extradition—the Council of Europe Convention on Extradition 1957—with EU member states.
For the most part, the regulations make the same sort of changes over and over again in a series of related areas: revoking in whole or in part legislation on our domestic statute book that would be redundant in the event of a no-deal exit; fixing deficiencies, such as making sure that definitions in our domestic law reflect our new status outside the EU; and making sure that there is clarity over what happens to cases and requests that were live or in train at the point of exit.
Overall, the making of this instrument will provide legal and operational certainty for the public sector, including our law enforcement and criminal justice partners across the UK, such as the National Crime Agency, our police and our prosecution services. While it remains the Government’s position that exiting with a deal is in the UK’s best interests, this instrument makes important changes to ensure readiness on exit day in a no-deal scenario.
Having provided an overview of what the instrument does, I should also be clear on what it does not set out to do. For the most part, this instrument is not a vehicle for implementing the Government’s policy response to a no-deal exit. Our contingency arrangements for co-operation with EU partners on security, law enforcement and criminal justice involve making more use of Interpol, Council of Europe conventions and bilateral channels. These existing, alternative channels outside the EU are already in use between the UK and many other non-EU countries. Accordingly, they do not require domestic legislation to set them up, which is why those contingency arrangements are largely outside the scope of what these regulations set out to do. Even the Council of Europe convention on extradition, which this instrument links into our contingency arrangements, is already in place and in day-to-day use by the UK with non-EU countries. The instrument re-categorises EU member states for the purposes of our own domestic law, in the form of the Extradition Act 2003, so that we can administer requests from EU member states under Part 2 of that Act rather than under Part 1, as at present.
Finally, I should make it clear to the Committee that the instrument comes into force on exit day, as defined in the European Union (Withdrawal) Act 2018. Should we enter an implementation period the entry into force of these regulations, along with most other EU exit instruments, will be deferred to the end of that implementation period. I commend the regulations to the Committee and I beg to move.
Baroness Hamwee (LD)
My Lords, I have to give the Committee apologies from my noble friend Lord Paddick, who is unwell. I am afraid that your Lordships have me whinging over this instead.
I was a member of the Secondary Legislation Scrutiny Committee for some time and its staff always amazed and impressed me with their ability to grasp detail while not losing a grip of the bigger picture. Reading the committee’s report on this instrument, it seemed to be the verbal equivalent of throwing one’s hands up in despair. It drew it to the special attention of the House,
“on the ground that the explanatory material … provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.
When I got the draft instrument out on Sunday, to look at it in a rather casual way, I thought it was just me but apparently it is not.
The committee also has within its terms of reference reporting to the House when an instrument fails to fulfil its policy objective. It has made it quite clear that it has some difficulty in assessing that. Its report says that it found the impact assessment,
“to be of little practical use”,
and that,
“for the most part the impact is categorised as … ‘there could be some practical impacts arising if legislative deficiencies are not addressed through these Regulations’. No information is given about the frequency with which the provision is currently used, whether an alternative route to the information is available at a different cost, or what effect the loss of this intelligence or information will be. Neither the financial nor the societal cost is quantified”.
The committee went on:
“We … expect an EM to include some contextual explanation, preferably with estimated numbers or an indication of the degree of usage, illustrating how the system will operate differently after the legislative change has happened”.
The Minister may say that she has told us that there really will not be a change, but I think that the committee is commenting on getting from A to B. It continued:
“Without such information we cannot assess the significance of a policy change and, therefore, advise the House accordingly”.
If I caught it correctly, the Minister said that for the most part there is no policy change. She is nodding at that, and I suggest to the Committee that that rather makes my point for me.
Scrutiny is not a rubber-stamping exercise. Analysis is at its heart. We have already heard the term “real-world effects”, and on that point the committee said that statements made by the Government,
“raise concerns that cannot be assessed properly without appropriate information on the current scale of usage and how that might change as a result”.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I agree with the comments of the noble Baroness, Lady Hamwee, about the report of Sub-Committee A of the Secondary Legislation Scrutiny Committee. If I were the Minister, sitting here reading this report and having to address Members, I would be pretty unhappy that the Government put forward these regulations in such a way that the sub-committee’s report was so damning. Normally in these reports, one or two little lines are highlighted in black with a few concerns, but in this case they are all over the place.
The sub-committee’s comments highlight its concern about how this issue is presented to Members. The first says:
“These draft Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.
It goes on:
“We were not persuaded that so wideranging an instrument, covering policy areas that are individually of significant concern to the House, can be justified. Effective scrutiny is inhibited by the wide range of issues included”.
Looking at the document, these issues are huge. I do not think that this is the way to present them to either House. I accept that the Government are up against it in terms of time—perhaps that is of their own making. However, we in this place and the other House have not exactly been busy; on many days, we have gone home quite early. On Thursdays now, we seem to be going home at 2 pm; we often used to sit until 7 pm. There has been plenty of time to discuss these things in more detail.
The list of concerns is unacceptable. The sub-committee, quite rightly, criticised the Government when they brought forward the regulations. I endorse its actions in pointing that out. It is not acceptable to bring them forward in this way. However, I accept that if we end up with no deal and crash out—I do not want to get into that situation—we must have functioning procedures in place. So, if the regulations are voted for on the Floor of the House, we will not oppose them.
We participate in several EU measures to enhance our security, law enforcement and judicial co-operation. They are vital in keeping us safe from people who do harm and commit criminal offences. We all support that. The Minister reminded us that the regulations seek to revoke or amend EU retained law that is directly applicable to our current domestic legislation. She said that the regulations would deal with live cases—as I think she referred to them—at the point of exit, and extradition.
Other noble Lords referred to the 1957 Council of Europe Convention on Extradition, which, according to the Explanatory Memorandum, would be used in lieu of the European arrest warrant. That is regrettable. The measures in the convention are far more limited than the European arrest warrant. Yes, the UK and the EU would allow extradition requests from other member states in lieu of the European arrest warrant, but Article 2(3) of the convention states:
“Any Contracting Party whose law does not allow extradition for certain of the offences referred to in paragraph 1 of this article may, in so far as it is concerned, exclude such offences from the application of this Convention”.
It is clear that the situation will be worse. The only people who will benefit are criminals; nobody else will. This is the criminal’s friend. It is a ridiculous situation and it is not the right thing to do, so we need further comments from the Minister on it.
The Government have made the case for the importance of the European arrest warrant. They have explained that more than 1,400 individuals have been arrested on European arrest warrants issued by the other 27 member states and that, in the same period, EU member states have arrested 183 individuals and brought them to the UK. The warrant is an important tool and it is regrettable that we will end up less safe as a consequence of these actions.
The Minister spoke about the loss of access to databases. We will lose access to a number of databases as a consequence of this measure, so it would be useful to have some comments on that. We are told that the impact of a no-deal exit on security, law enforcement and criminal justice co-operation with member states is not in the scope of the regulations, but the Government need to set out their plans. People are concerned about where we are and the consequences; if they are concerned about anything to do with leaving the European Union, it is matters of security. We need to understand fully what is at risk. We will be outside the Schengen information system and Prüm. Again, that is very regrettable, so it would be useful if the Minister could comment on it. We must have effective systems in place to deal with these matters.
I would also welcome the Minister’s comments on Europol and Eurojust. I hope that she will not say, “We’re still working on that”. If I get that response, I will remind her that it has been nearly three years since the referendum and we need to know where we will be on these important matters.
We do not oppose the regulations. I accept that they are narrow, but they have not been presented to this House and the other House well. The Government need to do much more to reassure us that, whatever happens, we will keep people safe. I believe that some of the measures here will make them less safe going forward.
Baroness Williams of Trafford
My Lords, I shall start with the final point from the noble Lord, Lord Kennedy, which concerns one of our first considerations as we leave the European Union: keeping our people here safe. He hits the nail on the head. For that reason, I hope that down the other end they are voting for the Prime Minister’s deal.
We need to be clear about these instruments. Should the UK leave the EU without an agreement at the end of the month—the no-deal scenario—the UK’s access to these tools and measures would cease. We are absolutely clear about that. At the same time, the UK would cease to be bound by the security-related EU regulatory systems. This would occur as a result of the UK’s withdrawal from the EU through the Article 50 notification, but not as a result of the provisions found in these instruments—I stress this yet again. It is important to be absolutely clear that the regulations play no part in bringing about the UK’s withdrawal from the EU. Rather the purpose of the instrument is to make amendments to the UK’s domestic statute book, including retained EU legislation, to reflect the new situation.
Baroness Ludford
Surely the difference that should be measured is between crashing out with no deal and the Government’s hopes for a security partnership, which are rather ambitious or, some might say, overambitious? The Government want something as similar as possible to what we have at the moment. That contrasts a great deal with simply cutting all our existing measures and systems.
Baroness Williams of Trafford
The noble Baroness makes a good argument, but it is not the basis of this statutory instrument. That is why I thought I would outline it. I do not disagree with her. I agree that we need to make sure that this country is kept as safe and secure as possible, as the noble Lord, Lord Kennedy, says. However, that is not the argument we are having today; I need to make that clear upfront. We are at one on this. There is no way that we want to undermine safety.
The noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, talked about the Secondary Legislation Scrutiny Committee. As they said, it highlighted the sheer range of subjects included in these regulations. The Government responded, setting out the reasoning behind our approach. The changes made by the regulations are in linked policy areas and cover three subject areas—this should start to make it clear why we have linked them all. The three areas are: security, law enforcement and judicial co-operation in criminal matters currently underpinned by EU legislation; security-related EU regulatory systems for which the Home Office is responsible; and domestic legislation affecting the police and the investigatory powers made deficient by EU exit.
In regard to security, law enforcement and judicial co-operation in criminal matters, the regulations address deficiencies in connection with EU measures with a justice and home affairs, or JHA, legal base. Reflecting their shared underlying legal base, these measures all relate in some way to law enforcement and security in their subject matter, and in many cases interact at an operational level. For example, as the noble Lord, Lord Kennedy, mentioned, SIS II circulates European arrest warrant alerts. The regulatory regimes, while not having a JHA legal base, have a similar underlying purpose to prevent, detect and prosecute criminal activity and to maintain security. Given that these are linked policy areas and that the changes made are very similar across most parts of the instrument—we are making the same sorts of amendments over and over again—we considered that combining them in a single instrument would assist scrutiny by providing as complete a picture as possible in one place. We expect it to assist the eventual users of the legislation, which will include law enforcement partners and prosecutors around the UK and who will often be using combinations of the EU tools covered by these regulations.
Lord Kennedy of Southwark
The Minister made the point that these measures have been put together to assist scrutiny. No doubt she believes that but the scrutiny people do not; they think the opposite. This is not the first time that we have had reports like this—although this may be one of the worst ones. When will the Government realise that Parliament does not like the way they are laying instruments in front of us, and that they should do it a different way? Some of the instruments I have seen coming forward are like encyclopaedias. There should be a policy decision because they are not being received very well. If the Government want to have proper scrutiny. we need to do it a different way.
Baroness Williams of Trafford
I do not dispute what the noble Lord says. I am purely trying to explain the logic behind the way that it has been laid out.
The Government then published a second Explanatory Memorandum because of the Secondary Legislation Scrutiny Committee writing to the Home Office, commenting on the sheer length of the original Explanatory Memorandum. As the Policing Minister outlined in his response to that committee, the detailed information in the original Explanatory Memorandum was supplied in good faith—the committee recognised this in its report—to provide the committee and other users of the Explanatory Memorandum with a thorough explanation of each provision in the instrument. One can conclude that we could not do right for doing wrong. Some people thought that there was too much information, others not enough. In the event, we provided a more concise Explanatory Memorandum on 11 February.
Lord Kennedy of Southwark
I thank the Minister—that is very helpful. I do not know what goes on in departments. Do I take it that Ministers sit round the table and say: “We got that one wrong. Both Houses are clearly very cross. When we have the next set of stuff, maybe we should try and do it a different way”? Does that ever take place? Can the Minister enlighten us?
Baroness Williams of Trafford
I think the noble Lord would probably accept that in this instance the Secondary Legislation Scrutiny Committee coming to us saying it was far too long and complex, then us trying to do a more concise version was a learning point for us. We accepted the committee’s point. In that sense, we try to learn as we go along. I certainly do not want to come to Committee too many times and having to take the rap for Explanatory Memorandums that are too long, too short or incomplete.
Lord Kennedy of Southwark
I have one final point. I will then leave it and move on. If we are to have more regulations, in the next few days or whenever, I hope the Government will take on point the concerns raised here and in the other place.
Baroness Williams of Trafford
That is a very good point, because if Parliament does not understand what the regulations mean then practitioners will be at a distinct disadvantage. I totally take the noble Baroness’s point.
As the noble Lord, Lord Kennedy, said, the Home Affairs Select Committee and the House of Lords’ EU Home Affairs Sub-Committee have been particularly active in publishing reports in March, July and December last year. There was the EU Home Affairs Sub-Committee’s report on a UK-EU security treaty on 16 January, as well as its oral evidence session on security arrangements in the event of no deal on 27 February. I am pleased that both Houses of Parliament are looking at an issue that has been under-debated in both Houses. For me it is one of the most important aspects, as the noble Baroness, Lady Ludford, said, as we leave the European Union.
The noble Baroness, Lady Hamwee, talked about the impact assessment being insufficient because it does not outline the impact of no deal. The impact assessment assesses the impact of legislating, as proposed in the regulations, compared with not doing so in a no-deal scenario. For the purposes of the impact assessment, the no-deal scenario is treated as a given since that is the scenario the regulations prepare for. We are not getting mixed up, but I think we are conflating no deal generally with the regulations.
Baroness Hamwee
I understand what the Minister is saying. Is that the explanation for us not being given the cost to the public purse, which, frankly, must be considerable, to which my noble friend Lady Ludford referred?
Baroness Williams of Trafford
That is pretty much so, but I will get on to that later. The impacts of no deal as a whole are completely outside the scope of the regulations.
The noble Baroness, Lady Hamwee, said that the regulations are indigestible. That is pretty much what the noble Lord, Lord Kennedy, said too, but we cannot avoid them in the event of no deal, given the importance of this area. As I said in my opening speech, most of the changes being made by the regulations are very similar—indeed, one might say repetitive—in most parts of the instrument.
The noble Baroness, Lady Hamwee, made a very serious point about the Liberal Democrats intending to vote against the regulations. Obviously, it would be deeply regrettable, particularly in this area, to take that course of action. The noble Lord, Lord Kennedy, pointed that out. These regulations will provide legal and operational certainty for operational partners. Clearly, it is vital that they uphold the rule of law and protect the public. We should be doing everything we can to support their work and to manage the transition to a no-deal scenario. I hope that does not happen, but if it does that is exactly what the instrument will do. I must say to the noble Baroness that if the changes in these regulations in the extradition space are not made, it is not clear that new incoming extradition requests from EU member states could be lawfully processed, with potentially serious consequences for our extradition arrangements with EU partners.
The noble Baroness asked how many EU member states need to make legislative changes to operate the Council of Europe’s European Convention on Extradition with the UK. All EU member states operate the European Convention on Extradition with Council of Europe countries that are not EU member states. I will not speak on behalf of other member states as to their particular systems, but we anticipate operating the European Convention on Extradition with all EU member states. I think that answers the question asked by the noble Baroness, Lady Ludford.
The noble Baronesses, Lady Hamwee and Lady Ludford, and the noble Lord, Lord Kennedy, talked about extradition. The noble Baroness, Lady Hamwee, asked me about “almost” no policy changes; here there is a tiny tweak which I will now explain. In the case of extradition, the regulations help to support the implementation of the no-deal contingency arrangement. The regulations will ensure that we have the correct legal underpinning, as I have already said, to operate the no-deal contingency arrangement with EU member states. However, the legal underpinning for our contingency arrangements for March 2019—the end of this month—largely exists outside these regulations. To be clear, the convention is already in place, and it is in use by the UK with other countries. These regulations will recategorise EU member states for the purposes of the Extradition Act 2003 so that we can administer requests from them under Part 2 of the Act rather than under Part 1 as at present. That is the tweak. I hope the noble Baroness will agree that it is a small tweak.
The noble Baroness, Lady Ludford, asked how much longer a Council of Europe case will take compared to a European arrest warrant case. We have absolutely accepted that, in the event of no deal and having to revert to Council of Europe conventions, it will take longer and cost more. The noble Baroness also made the point that it will not be as effective in the case of a no deal—she does not want Brexit at all, but that is by the by. The purpose of the regulations is to ensure that the statute book functions correctly and reflects the new situation should a no-deal scenario materialise. She very rightly asked about human rights. As the White Paper and the political declaration make clear, the UK is committed to membership of the ECHR, and we will remain party to it after we have left the EU. I also add that this country has some of the strongest human rights legislation in the whole world, and I remain confident that we will be world leaders in that.
The noble Baroness, Lady Ludford, and the noble Lord, Lord Kennedy, very sensibly asked about data protection. The default position on data protection is that in a no-deal scenario we can continue to process data received from other member states before exit day, subject to compliance with the Data Protection Act 2018. One of the principles in that Act is that there should be compliance with the conditions under which personal data was first accessed, which in this case would imply the conditions—including those found in the measures themselves—under which the UK accessed the data while still a member state. However, to put the legal position beyond doubt and to reduce the risk of legal challenge, the approach taken in relevant areas of the regulations is to save the specific data protection measures. Saving those provisions helps to create legal certainty, including for operational partners.
The noble Baroness, Lady Ludford, also talked about the cost per extradition going up, and asked why that is not in these regulations. We have gone over that ground—this is not about no deal generally, but about putting things on the statue book. We are absolutely not denying that the cost will go up and that the time will be longer. I hope that answers all noble Lords’ points.
Baroness Ludford
I do not deny that I have been somewhat distracted by events going on elsewhere—
Baroness Ludford
However, I do not think that the Minister answered my question about other countries.
Baroness Williams of Trafford
I did. The noble Baroness was very involved in her phone. I do not say that as a criticism because I am dying to go on to mine but, if she likes, I will repeat it in a letter.
Shamima and Jarrah Begum
Baroness Williams of Trafford Excerpts(5 years, 8 months ago)
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The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, with the leave of the House I will repeat a response to an Urgent Question given by my right honourable friend the Home Secretary in the other place:
“Mr Speaker, we estimate that over 900 people left the UK to engage with the conflict in Syria and Iraq. Many have been killed fighting; some remain there; some have returned; others could still come back. Some irresponsibly took young British children with them. Some had children whilst there, as part of their mission to expand the so-called caliphate.
We have made it very clear since 2011 that no British citizen should travel to Syria. Those who have stayed until the bitter end include some of the most devoted supporters of Daesh. One of the ways we can deal with the threat they pose to the UK is to remove British citizenship from those holding another nationality. Since 2010, this power has been applied to around 150 people of a range of nationalities. It would not be appropriate for me to comment on the details of an individual case—although, clearly, the loss of any child is a tragedy. But if I may, I will address some of the issues raised.
First, these decisions are made very carefully. Where citizenship deprivation is being considered due to national security concerns, the decision is based on advice and intelligence from the security services, counterterrorism police and specialist security and legal officials in the Home Office. When people dedicated to keeping our country safe give an informed recommendation, any Home Secretary should listen very carefully.
Secondly, we are unable to provide support to British nationals within Syria, as the UK Government do not have a consular presence there. Thirdly, the status of a child does not change if their parents’ British citizenship is subsequently revoked.
There are no easy answers. I must think also about future conflicts and the precedents we set. I do not want any more children brought into a war zone because their parents think they will automatically be bailed out, no matter what the risk. But the UK is doing all we can to help innocent people caught up in this conflict. We have committed £2.8 billion to Syria since 2012—our largest ever response to a single humanitarian crisis. And we are on track to resettle 20,000 vulnerable refugees who have fled the country, with our national resettlement programme resettling more than any other EU member state in 2017.
I understand the public interest, so I have asked my officials to expedite the publication of our next transparency report on disruptive and investigatory powers, including the most up-to-date annual figures on deprivation of citizenship. This Government remain committed to protecting our citizens around the world. But I will not shy away from using the powers at my disposal to protect this country”.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the decision taken by the Home Secretary to strip Shamima Begum of her citizenship was the wrong one. The route should have been for her to return to the UK and be fully investigated. It evidential tests were then met, she should have been prosecuted to the full extent of the law. If the tests were not met, appropriate prevention order measures should have been put in place.
The death of an innocent baby is a tragedy. Can the Minister please tell the House how the Government ensure that the rights of children—innocent young children and babies—are properly taken into account when decisions regarding their parents’ citizenship are made? Will she tell the House, when they decide to strip a child’s parent of their citizenship, how leaving that child in a more dangerous and risky situation—effectively abandoned by their country—complies with Articles 2, 3, 6, 19, 22, 38, 39 and 41, in particular, of the UN Convention on the Rights of the Child?
Baroness Williams of Trafford
I thank the noble Lord for that question. Of course, the death of any child is an absolute tragedy. In the camps in Syria, two-thirds of all deaths are children under the age of five. The situation in northern Syria is absolutely dire, and I know the noble Lord will agree that any parent who takes a child to that region, despite all the advice to the contrary, puts not only themselves beyond help but their child too.
Baroness Hamwee (LD)
I thank the Minister for repeating the explanation of the deprivation of British citizenship. I had understood that this should be used only as a last resort, but it now seems to be used as a first response. The Statement refers to removing British citizenship from those “holding another nationality”. Could the Minister confirm whether that means currently holding another nationality, or—as I believe is the case with Shamima Begum—entitled or possibly entitled to another nationality?
The noble Lord, Lord Kennedy, asked about taking the interests of the child into account in a fairly objective way. With regard to the particular child, we have heard—not specifically from the Statement—that the Home Secretary said that he took the interests of the child into account. Could the Minister tell the House how that was done?
Finally, there is obviously concern about safeguarding individual children. I believe that there is also an obvious concern about the new generation of children now in the region who will grow up to see the UK as an enemy, despite the fact that they have British citizenship. Can the Minister explain how we will prevent that situation getting much worse?
Baroness Williams of Trafford
My Lords, we must make no mistake; the noble Baroness talked about making the situation worse, but it is hard to think how it could be any worse. As I said to the noble Lord, Lord Kennedy, two-thirds of the people who die in the camps are children under the age of five.
On people who hold another nationality, my right honourable friend the Home Secretary has been absolutely clear that he will not deprive someone of their citizenship unless they possess the citizenship of another country.
On the interests of the child, the Home Secretary said that he took the decision based on all the facts of the case, which included the interests of the child. It would be very difficult to establish how one could take a child out of Syria, when it would be wrong to send British officials there to remove the child. The noble Baroness talked about safeguarding. Speaking of “safeguarding” in Syria seems to be a contradiction in terms: any parent who takes their child to Syria puts not only themselves beyond help but their child too.
Baroness Berridge (Con)
My Lords, in relation to this matter, I raised the specific situation of children twice in previous Urgent Questions. Our law has a strong history of not just taking the interests of a child into account: in our family courts the interests of the child are paramount. How can it be that we do not have any legal process for the interests of the child to be considered separately from those of the parent?
The Statement said that children were taken out of the jurisdiction into Syria. Is it not the duty of a local authority to get this matter before our family courts, so that the interests of these children can be represented separately from those of their parents, and a decision made on whether it is safe to get them out of that situation if they should be separated from their parents?
Baroness Williams of Trafford
My noble friend is absolutely right that the interests of a child should be paramount for local authorities. However, if that child is not in this country and is, for example, in Syria, they are—it is sad to say—beyond our help.
Lord Jay of Ewelme (CB)
My Lords, the Minister rightly said that this case involves a highly complex set of issues—Britain’s security, the need for effective justice and the possibility of human rights abuse. But would she not agree that the tragic death of little Jarrah illustrates a much wider issue: that the British Government have a responsibility to British citizens, whoever they are, wherever they are and whatever they have done, and that the right thing is to bring them back to face justice, which we believe in and which surely has the right combination of fairness and robustness?
Baroness Williams of Trafford
The noble Lord raises a very important question. Of course, if British people who go to Syria return, they face the full force of the law as to why they travelled to that country when the Government had given every advice against doing so. The noble Lord will know of many cases where citizens return. However, to go into a war zone and retrieve someone is beyond what the Home Secretary is willing to do. Of course, the other point is that the Government put a huge amount of money into the region in humanitarian assistance, but the Home Secretary has rightly said that he will not risk the lives of British officials to go to retrieve foreign fighters—or, indeed, the children they have brought with them.
Lord McConnell of Glenscorrodale (Lab)
My Lords, to focus on the practicalities of recovering a child from Syria is to go down the wrong road. At the core of this problem is the fact that a decision was made within days, without any due process, using television and newspaper interviews to judge a teenager and without taking into account the interests of their child, and eventually to decide that that individual, if they were so dangerous that they could not come back to this country, should be dumped on our Commonwealth partners in Bangladesh. Everything about this decision was wrong. What will the Government learn from this experience? They directly contradicted what they said last year was their policy on a returning young mother from Syria in a decision so soon after publishing that policy; surely they should learn from this experience, review the process and publish a transparent due process that will be used in every case, rather than responding to newspaper headlines.
Baroness Williams of Trafford
My Lords, what the noble Lord said is interesting, because responding to newspaper headlines is quite often what happens in both Houses of Parliament. The Home Secretary makes decisions based on information that he is given—robust legal advice, including on the interests of the child. Over 150 cases of deprivation have been made since 2010, so I dispute the noble Lord’s assertion. On transparency, as I said in my Statement, we are looking to provide a transparency report shortly with the most up-to-date figures.
Female Genital Mutilation
Baroness Williams of Trafford Excerpts(5 years, 8 months ago)
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Baroness Jenkin of Kennington
To ask Her Majesty’s Government what steps they are taking to reduce the risk of female genital mutilation for girls in the United Kingdom and internationally.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, FGM is child abuse, and the Government are clear that we will not tolerate this appalling crime. We have strengthened the law on FGM and were pleased to see the first UK conviction earlier this year. We are also helping communities around the world to end this harmful practice once and for all.
Baroness Jenkin of Kennington (Con)
My Lords, I am delighted that my noble friend confirms that FGM is indeed child abuse. Would she also agree that the excuse of cultural practice is no reason for cutting young girls, either in the UK or anywhere else around the world?
Baroness Williams of Trafford
I totally agree with my noble friend. Cultural practice is often used interchangeably with religious reasons. In fact, the practice of FGM has nothing to do with religion. If cultural practice is harmful to children—and this practice is terribly harmful to girls, not only when it is done but throughout their whole lives—then we will look to end it.
Lord Morris of Aberavon (Lab)
My Lords, as a criminal lawyer, I am fully aware of the problems of successful prosecutions, particularly when there are family interests, but the fact that there has been only one successful prosecution must mean that something is deeply flawed in investigating or prosecuting. Will the Minister convey to the Attorney-General my request that he considers inviting the inspectorates of police and CPS for their views?
Baroness Williams of Trafford
What I think the noble and learned Lord is pointing out is that, actually, this is quite a hidden crime. It has various protections, if you like, with family members and doctors not willing to come forward. Although we have had only one prosecution, we have at least had that one and we now need to work from there. We have had a lot of campaigns in local communities to highlight the fact that this is an illegal practice and should not be going on in communities.
Baroness Burt of Solihull (LD)
My Lords, would not a simple and effective step be to make the responsibility for ensuring that children are being effectively taught about the dangers and illegality of FGM part of Ofsted’s responsibilities? I met with Nadhim Zahawi and Karma Nirvana last summer and Mr Zahawi seemed enthusiastic about the idea, but I have not heard anything since. Could the Minister gently nudge the right honourable gentleman and find out whether he intends to implement this measure?
Baroness Williams of Trafford
One thing the noble Baroness might find helpful is that it is an offence to fail to protect a girl from FGM. She mentions schools—clearly, they have not only a safeguarding role but a welfare role. Professionals are now being trained to look out for the signs of whether a girl has gone through FGM, forced marriage or another form of illegal practice.
Baroness Masham of Ilton (CB)
My Lords, is the Minister aware that in 1985 I took the first bit of legislation on female circumcision through your Lordships’ House and that the noble Lord, Lord Glenarthur, who is here today, was the Minister? This shows how difficult the situation is, as there have been several bits of legislation since 1985.
Baroness Williams of Trafford
I commend the noble Baroness for the work she did back in 1995—
Baroness Williams of Trafford
In 1985—even further back. I also commend my noble friend Lord Glenarthur. The noble Baroness points out the difficulties of this. If people, particularly family members, are reluctant to come forward, it becomes very difficult to drive out. However, we have made a small amount of progress, and certainly some of the FGM protection orders that we have introduced have helped to stop girls from being cut.
Baroness Harris of Richmond (LD)
Does the Minister know about the spoon campaign—that is what I call it—where young girls are told about putting a small spoon inside their underwear when they go through checks at airports? This alerts the security officers to the fact that these young girls are frightened and need to be taken care of, so that their parents cannot take them out of the country to be cut.
Baroness Williams of Trafford
I certainly have heard of the spoon campaign—I heard the lady who initiated it speaking in Manchester the other week. It prevents not only FGM but forced marriage, which is another benefit. It is such a wonderful, simple campaign, and I commend it.
The Lord Bishop of St Albans
My Lords, the Government are to be congratulated on the various pieces of legislation that have been taken through. However, this is much more complex and is not simply a legal issue, as we have heard. That does not seem to solve the problem; it is clearly a cultural issue. The Minister has already referred to some of the attempts that have been made to change culture. What efforts are being made to talk to community leaders, who are some of the key people in those more traditional and sometimes hierarchical communities, to try to get the cultural change, so that this becomes an unacceptable practice and something which we really can see addressed?
Baroness Williams of Trafford
The right reverend Prelate goes to the nub of the problem: it cannot be solved by legislation alone. Certainly, we are doing some work around the world in giving UK aid. At home, we need to get to the point where those community leaders not only see that this is wrong but articulate that to members of their community, explaining that this is not only unacceptable and illegal but that it maims girls for life.
Baroness Corston (Lab)
My Lords, when I was the Member for Bristol East in another place quite a long time ago, I used to work with secondary school head teachers to discuss instances when girls said they were being taken to another country, often a home country of their family, for a long holiday. The school would then do what it could to investigate the purpose of the trip and try to alert the authorities. What work are the Government doing with schools?
Baroness Williams of Trafford
As I outlined to the noble Baroness, Lady Burt, professionals in schools clearly do not have only a duty of care to their children and a safeguarding role; there is now an offence for failing to protect a girl from FGM. Schools are now trained in spotting various safeguarding issues, including the signs that a girl might be taken away. Actually, the girl is not necessarily taken away or taken abroad; it can definitely happen here at home and we must not dismiss that. We have work to do in training our school staff but also the work in communities that the right reverend Prelate talked about.