Nationality and Borders Bill

Baroness Williams of Trafford Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, we support Amendment 34, tabled by the noble Baroness, Lady Ludford. We raised this issue in the Commons and pushed it to a Division in Committee. I will not repeat all the points that the noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, have made.

I want to make a few observations. This is an opportunity for the Government to clear up an obscure, largely technical anomaly which is having real-world consequences for a number of people. CSI was not required for any EEA or Swiss citizen to live in the UK and to be able to access the NHS. However, it was not generally communicated that this was an additional requirement. Most people now being impacted by this relatively obscure provision had no idea about it.

I do not believe that this should be controversial; it is a sensible change. There are two reasons for that. First, when the Government designed the EU settlement scheme, they chose not to include CSI as a requirement, so they have already decided that this requirement was not necessary and to waive it entirely. Secondly, the Government openly acknowledge that this is causing problems because they have introduced guidance, as we have heard, for caseworkers that some degree of discretion might be exercised where there are compelling grounds for granting citizenship. The amendment simply but constructively builds on that, rather than leaving it up to a vague discretionary power, the flaws of which have been discussed.

This is a simple, clear change to the law to reflect the reality of the situation that prevails in the UK. It is very much in the spirit of rectifying obscure anomalies and barriers in our nationality law, which the early clauses of the Bill, notwithstanding those that are controversial, attempt to do.

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

I thank both noble Lords for their comments and, in particular, the noble Baroness, Lady Ludford, for tabling this new clause about comprehensive sickness insurance, or CSI, which, under EU free movement law, was needed by EEA nationals in certain circumstances in order to reside lawfully in the UK. I was most grateful to have the chance to discuss this with the noble Baroness last week, as she said.

The EEA regulations set out the requirements that EEA nationals had to meet if they wished to reside here lawfully as a qualified person exercising free movement rights. Those who were working in the UK, or indeed who were self-employed, did not need CSI to be here lawfully, but students, the self-sufficient and their family members did. That requirement was set out in published guidance.

I note the noble Baroness’s comments about EEA nationals being able to access the NHS. Under UK legislation, all EEA nationals here under free movement had the ability to access state-provided healthcare on the basis of their ordinary residence, but the requirement to hold CSI ensured that the financial burden of providing free state-funded healthcare did not fall on the host member state, as is the clear objective of free movement law. Therefore, having access to the NHS did not equate with the requirement for CSI, although it could include the European health insurance card, otherwise known as the EHIC, issued by the EEA national’s home state.

The first part of this amendment would amend the European Union (Withdrawal Agreement) Act 2020 so that a person is treated as having had CSI if they had access to the NHS in practice or held a CSI policy. However, there is no mention of CSI in the rest of that Act, nor is there any requirement for CSI in the residence scheme immigration rules—the rules for the EU settlement scheme in Appendix EU—for an EEA national to obtain status under the scheme.

Consistent with the citizens’ rights agreements and the relevant EU case law, a so-called Lounes dual EEA/British national can currently sponsor relevant family members under the EU settlement scheme where that national was living in the UK in accordance with free movement law, including any requirement for CSI, before they also acquired British citizenship. However, I am pleased to be able to inform the noble Baroness that the Government have decided that, as a matter of fairness, they will amend the Immigration Rules for the EUSS and the EUSS family permit at the next appropriate opportunity to disapply any requirement for a Lounes dual national to have held CSI in order to sponsor applications by relevant family members.

[A noble Lord]

Hear, hear.

[Baroness Williams of Trafford (Con)]

I think that is one of the only times I will get a “hear, hear” over the course of this Bill, so I will milk it for one small second.

This will mean that such family members will in practice be treated in the same way as an EEA national or their family member in applying to the EUSS or for an EUSS family permit. Their eligibility will not be affected by any past lack of CSI on the part of their sponsor.

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[Baroness Hamwee (LD)]

My Lords, I do not want to sound churlish at all by asking this question. The “Hear, hears” were probably not as loud as they might have been for Hansard to pick them up; I hope that it does. My question will display my lack of grip of the EU settled status scheme. The Minister said that the Immigration Rules will be changed at the next appropriate opportunity. Am I right in thinking that 29 March is a significant date for those with pre-settled status? As I said, I have a lack of grip of this and an even greater lack of grip in pulling the bits together in my head but, if it is a significant date, then it is a significant question to ask whether the change will be made before 29 March.

[Baroness Williams of Trafford (Con)]

I do not have the exact detail on the date. I understand her point about 29 March being a significant date; noble Lords will all be informed in due course of when the changes will come about and I will let the noble Baroness know.

[Baroness Hamwee (LD)]

My Lords, just to follow that up, the Minister will understand that I am concerned that some people may fail to qualify because the rules are not changed by that date, so I wonder whether she could come back to us well before then.

[Baroness Williams of Trafford (Con)]

I will of course do that.

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[Lord Coaker (Lab)]

My Lords, I shall be exceptionally brief as we had a number of significant debates on statelessness last week and we are only too aware of the crucial issues that we need to reach today.

As we have heard, the 1997 convention provided a series of general principles relating to nationality, including non-discrimination and governing principles on statelessness. I gently point out to the noble Baroness, Lady Hamwee, that no Government of any complexion have ratified it since 1997. The Labour Government in 2002 was referred to, but no Government since have ratified it either. That is just a general point.

It would be helpful and constructive for the Committee at this stage of the debate, if the Minister could confirm the following points. These are very detailed, so, to be fair, the noble Baroness may wish to write to us. Do the Government have any plans to consider ratifying the treaty or intend to do so in the near future, and is that under consideration? Have the Government made any assessment of the specific elements of the treaty that they may be opposed to and, if so, could the Minister tell us what they are? Lastly, what are the existing provisions in UK law that are currently outside the provisions of that treaty? It would be helpful to have a bit more detail about the convention, where it relates to existing law and where there are any gaps or points that we may wish to consider in future.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Coaker, for their brief and succinct points in speaking to the amendment.

British citizenship affords benefits and privileges; the vast majority of us enjoy the freedom that they bring, while of course respecting the rights of others and the rule of law, but there are high-harm individuals who do not share our values. The noble Lord, Lord Coaker, is right that no Government since 1997, including the coalition Government of 2010-15, have ratified the convention, and he is right that we are not going to. The convention does not address the modern threat from global terrorism, among other things, and I would add that Spain, Belgium and Switzerland have not signed it either, perhaps for the same reasons.

The convention on nationality is at odds with domestic law. The Government do not consider it right that our sovereign powers to deprive a person of citizenship should be constrained by signing the convention, as the amendment would oblige us to do. That would severely limit the ability of the Home Secretary to make a deprivation decision in relation to high-harm individuals and those who pose a threat to public safety. Sadly, we have seen too often the effect of terrorist attacks on our way of life and the impact of serious organised crime on the vulnerable. It cannot be right that the Government are not able to use all the powers at their disposal to deal with today’s threats to our way of life.

It is the Government’s duty to keep the public safe and we do not make any apology for seeking to do so. I hope that, with that, the noble Baroness will withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, I shall be brief because I regard this amendment as an amuse-bouche, if you like, before the very substantial groups to come. I am sure the Minister recognised that this was a probing amendment, as I was asked to find out what the Government’s view was. I think that together we have fulfilled that task. I beg leave to withdraw the amendment.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I have been requested to confirm that I did not send a note to the noble Lord, Lord Green of Deddington. I confirm that I did send him a note. There is no law against it, and I am not sure why I was asked. I sent him a note to tell him that he was right.

I welcome my noble and learned friend Lord Clarke to this debate; I am very pleased to see him here and welcome his comments. The Committee will be very well served by listening to him, to my noble friends Lord Horam and Lord Hodgson of Astley Abbotts, and to the noble Baroness, Lady Fox, although she concluded that she was not sure that she could support Clause 11. The points that they made around how generous, warm and welcoming this country is and how we must be careful to take public opinion into account are pertinent. The noble Baroness, Lady Jones of Moulsecoomb, said that if you asked the British public, they would bring back hanging; actually, it was because of public opinion that hanging was abolished in this country, so I do not agree with her premise.

As the noble Baroness, Lady Ludford, said, this group is not, largely, about the 1951 convention but about the point on differentiation. There will be three groups further on dealing with the 1951 convention, but I will answer a couple of points on it now. The noble Lord, Lord Griffiths of Burry Port, said that we should be working with UNHCR. Other noble Lords have made the point that UNHCR disagrees with us. We do not think that there is only one interpretation of the refugee convention. It is for Parliament to decide, and I say to the noble Lord, Lord Kerr, that I do not think that is eccentric. It is democracy. It is for Parliament to decide, subject to the general principles of the Vienna convention on the law of treaties.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred to Article 31 flowing from Asfaw and Adimi, and asked why we were altering that. Parliament’s original intention regarding Article 31 is clear in Section 31 of the Immigration and Asylum Act 1999 that a refugee will not be determined to have come directly if they stopped in a third country outside the United Kingdom unless they can show that they could not reasonably have been expected to be given protection under the convention in that country. The courts have interpreted this more generously and we are therefore taking the opportunity to reset the definition to the original intention of Parliament.

The noble and learned Lord, Lord Etherton, made a point about the proposed interpretation of “coming directly” under Article 31 of the convention in Clause 36 not being how it was intended by the convention. We have been very clear that people seeking protection must claim it in the first safe country they reach. That is the fastest route to safety. We will not tolerate criminal smugglers exploiting vulnerable people to come to the UK when a claim could easily have been made in another safe country. The convention does not explicitly define what is meant by coming directly and therefore, it is ultimately for our sovereign Parliament to set out its interpretation of international obligations subject only to the principle of treaty interpretation of the Vienna convention.

The noble and learned Lord also talked about LGBT+ communities, which again we will come to later. We know that they can have difficulties in making and evidencing a claim. That is why our policies and training are designed to support claimants in being able to explain their claim in a sensitive and safe environment.

[Lord Kerr of Kinlochard (CB)]

If I understand the noble Baroness aright, there is nothing to stop this sovereign Parliament setting out how it interprets the refugee convention in future. She enumerated four Members of the Committee who had spoken supportively. I think it is the case that none of them argued that the Bill was not a breach of the convention. We had some powerful legal advice that it was a clear breach of the convention. I ask her to remember that the last time this House was asked to pass a Bill that broke an international commitment was on the internal market Bill, and it took the very clear view that pacta sunt servanda mattered and that we should stick to our word.

[Baroness Ludford (LD)]

I was not clear about the noble Baroness’s reference to me. The fact that I did not actually say that I believed Clause 11 breaks the refugee convention does not mean that I do not think that it does, because everybody else had said it. I was not quite clear what she meant.

[Baroness Williams of Trafford (Con)]

I think what I was trying to say, maybe clumsily, was that the noble Baroness was trying to get back to the amendments.

[Baroness Ludford (LD)]

The clause breaches the refugee convention, in my opinion. I agree with many people who said that.

[Baroness Williams of Trafford (Con)]

I was not making that point, but I accept the noble Baroness’s point.

The noble Lord, Lord Kerr, just said that the four Members did not argue that the clause is not a breach of the convention. The four Members I singled out for mention were trying to explain public opinion in the round and the need to take note and do something about their concerns, notwithstanding the fact that the British public are warm and welcoming. We are a nation of immigrants. I think my noble and learned friend wants to intervene.

[Lord Clarke of Nottingham (Con)]

Yes, as I am having various motives attributed to me. As I said, I came here with a dilemma. I do not think we will turn British public opinion round to the views I personally would like to support if I thought we could. I wait to be persuaded that the Government’s package will actually work and make the problem any easier. I reject the simplistic solution that all we have to do is provide safe and easy routes and accept that many more people will come, because they undoubtedly will if some of the things that have been proposed are accepted. That would cause very nasty further damage to our society and the level of our political debate. I am not convinced that Clause 11 and Clause 9 are a satisfactory solution to that yet. That is what I hope to hear my right honourable and noble friend persuade me of the course of this winding-up speech.

[Baroness Williams of Trafford (Con)]

Unfortunately, I am not right honourable, although you never know. I hope to persuade my noble and learned friend, but no one piece of legislation will be the silver bullet to solve all the problems. I do not think I have ever made any secret of that, but I thank him very much indeed for his points.

To get back to the LGBT+ community, it can have particular issues with claims. There is sensitivity about this. Our guidance on sexual orientation and gender identity was developed to take these issues into account. The UNHCR, Stonewall and Rainbow Migration contributed to its development and we are most grateful to them. We will review and update our training and guidance where necessary to support people who are LGBT+.

I would like to get back to the first safe country principle, which is internationally recognised. In fact, it underpins the common European asylum system, particularly the Dublin system, which I note that a number of noble Lords are separately seeking to replicate through the Bill. Broadly speaking, the first safe country principle defines countries which are presumed safe to live in, based on their stable democratic system and compliance with international human rights treaties. Dublin therefore functions on a twofold logic: first, that first countries of entry are safe and should normally be responsible for determining an asylum claim; and, secondly, that burden sharing can then take place where there is a family connection in another safe country. In essence, the first safe country principle removes asylum seekers’ ability to choose where to go—and undertake dangerous journeys in the hands of criminal smugglers to do so—in favour of safe, orderly, and regular management of flows. That is a reasonable approach.

To demand that the UK do more to share the burden, but also to hold that asylum seekers have the right to choose where to claim—the point that my noble friend Lord Hodgson of Astley Abbotts made, this concept of forum shopping—is simply contradictory. On this logic, the number of people who claim in the UK is exactly the right number and there is nothing more that the UK needs to do. Conversely, the reason that the Bill enshrines the idea that asylum seekers ought not to choose where they claim, by setting out various measures in defence of the first safe country principle, is precisely because removing that choice enables us to do more on burden sharing from regions of origin. In what is decidedly a more ambitious approach than anywhere in the EU, such a policy would provide far more generosity, fairness, and control in managing global asylum flows. Can I turn now to pull factors?

[The Lord Bishop of Durham]

The Minister has not addressed the UNHCR’s point that if every country insisted on the first point of entry as the sole thing, it would completely undermine the entire international system.

[Baroness Williams of Trafford (Con)]

As I have said, we disagree with the UNHCR on that point. If I can turn to pull factors—

[The Lord Bishop of Durham]

Excuse me, why? Why do you disagree? I am sorry but it is not enough to simply say “We disagree”.

[Baroness Williams of Trafford (Con)]

I hope that, through the course of my response here, I will lay out the rationale for why we are doing what we are doing. We disagree with the UNHCR and we feel that, as a sovereign nation, it is up to us to interpret the 1951 convention.

[Baroness Lister of Burtersett (Lab)]

If the Government’s argument is to be that they have a different interpretation, it is not clear why we should accept their interpretation over the UNHCR’s interpretation. I asked if the Government would publish the legal advice on which their interpretation rested. Then we can judge against other interpretations.

[Baroness Williams of Trafford (Con)]

I think the noble Baroness knows that we do not do that. I am not going to commit to publishing the legal advice. I am, however, going to come to her questions later if the Committee will be patient.

Can I get on now to pull factors? They are complex, but it is reductive to claim that asylum seekers do not ever make decisions about their destination based on policy calculations. They are like the rest of us; they do not simply respond to one or two factors such as family or language in making a choice. Many more factors come into play in this respect, as my noble friend Lord Hodgson of Astley Abbotts mentioned, and one of those will very naturally concern how to rebuild the life they lost after being forced to flee their country of origin. But to defend the first safe country principle for the reasons I have set out, we must do everything we can to deter dangerous secondary movements from countries that are already safe and provide perfectly good means for a flourishing life.

Noble Lords have mentioned Denmark, Australia and Japan. We have seen large reductions in spontaneous intake in both Denmark and Australia, following similar approaches to that which we intend to take. In fact, Australia resettles the single largest number of refugees in the world.

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[Lord Kerr of Kinlochard (CB)]

I apologise to the Minister, but it will not do. The noble Lord, Lord Paddick, corrected a misapprehension earlier. The numbers she is citing for resettlement are the numbers from the resettlement schemes run by UNHCR. She is not citing the number of people who have come to Turkey, to Lesbos, to Italy or to Spain and have been settled across Europe. It is a narrow definition of “resettlement” that is most misleading. We are taking relatively few, relative to our size, compared to others across Europe.

[Baroness Williams of Trafford (Con)]

My Lords, I was at pains to say that this is under national resettlement schemes. I have not tried to mask the figures. I have been very clear about how many people we have taken under national resettlement schemes.

I was about to hold up a prop, although I know that is not done in your Lordships’ House. I wrote to the noble Lord, Lord Dubs, who had to go, as did the noble Baroness, Lady Fox; she apologised for that. I wrote to noble Lords about the safe and legal routes, and I think the reason that some noble Lords do not want to acknowledge it is that they do not accept what we have done. I have looked at how many different family reunion schemes we have. We have four, including refugee family reunion. I will spend a moment to really spell this out, because some noble Lords just seem to not want to hear it. We have granted over 39,000 refugee family reunion visas since 2015, of which more than half were granted to children. Comparing that to the Dublin scheme, under the Dublin regulation, we transferred 714 people to the UK in 2019. In the same year, we issued 7,456 visas under our family reunion rules. It does not take a genius to work out that is 10 times the amount. Part 8 of the Immigration Rules—paragraph 319X—allows relatives to sponsor. We also have paragraph 297 and Appendix FM. Under Appendix FM, in 2020 there were 40,255 family-related visas granted. Please do not keep talking about us undermining family reunion, because we just have not. It is not true. I ask noble Lords to refer back to the letter that I sent to the noble Lord, Lord Dubs—I think that was last week.

[Baroness Ludford (LD)]

I hope the Minister would acknowledge that—speaking only for myself—what I was doing was objecting to the restriction. I did not criticise the existing record, although my proposed Private Member’s Bill would expand the scope. The objection is to the poor proposed treatment of group 2 refugees under family reunion. I was not talking about the numbers to date.

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[Baroness Williams of Trafford (Con)]

My Lords, noble Lords have repeatedly talked about undermining family reunion. I confirm to the noble Baroness, and for Hansard, so that noble Lords do not come back at me again and again to make this point, that group 2 refugees will be afforded the entitlements in a way that is compatible with the refugee convention, including family reunion, compatible with the ECHR. Most importantly, they will be provided with protection against refoulement. I make that point again: group 2 refugees will be afforded the entitlements in a way that is compatible with the refugee convention, including family reunion. I hope noble Lords will not come back to that point—well, they will do so, but I have made my point, I hope.

If I can, I will continue on the generosity of the great British public and this Government. Over 88,000 BNO status holders and their family members—almost 90,000, as my noble friend said—have chosen to apply for the BNO route, with over 76,000 granted it so far. Meanwhile, we led Europe in airlifting some 15,000 people out of Afghanistan to the UK from mid-August under Operation Pitting. If any noble Lord wants to stand up and say we were not generous in that situation, I beg them to do that now. That is over and above the earlier transfers of around 2,000 locally employed staff and their families under the Afghan relocations and assistance policy. Our new Afghan citizens resettlement scheme also aims to welcome a total of 20,000 people. These people, who noble Lords were talking about earlier, are the most vulnerable people in the world today and our generosity has been exemplary.

[Lord Rosser (Lab)]

Can I just clarify a point? The Minister has said it is not true that family reunion rights are going to be restricted. But as I understand it, the Government’s New Plan for Immigration did give a detailed indication of what different treatment might look like for group 2 refugees. I am perfectly willing to stand corrected if what I am saying is wrong, but as I understand it, the New Plan for Immigration said, in relation to group 2 refugees who will be granted temporary protection:

“Temporary protection status will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution.”


Is that quote from the Government’s new plan wrong? In other words, is it not correct that family reunion rights will be restricted?

[Baroness Williams of Trafford]

It is not correct to say that family reunion rights will be restricted for group 2 refugees. They will be afforded the entitlements in a way that is compatible with the refugee convention, including family reunion. If someone, be they a group 1 or group 2 refugee, is deemed a refugee, they will be afforded family reunion rights compatible with the ECHR.

[Lord Rosser (Lab)]

My Lords, I—

[Baroness Williams of Trafford]

Can I just carry on? I will then of course allow an intervention from the noble Lord; he is always courteous to me.

I want to further reassure the noble Baroness that, even where a refugee or a family member is a group 2 refugee, “reasonable discretion” will be exercised with respect to the determination of differentiated entitlements. We have built this notion into current drafting by ensuring that the determination of whether a refugee is in group 1 or group 2 will depend on whether they could have been reasonably expected to claim asylum in another safe country, and their asylum claim in the UK was made as soon as is reasonably practicable. Our view is that these standards provide adequate discretion to take into account particular facts of an individual case when determining tiering and therefore whether they are granted differentiated entitlements. Would the noble Lord like to intervene now?

[Lord Rosser (Lab)]

I would because I am getting thoroughly confused, which is something I perhaps do quite frequently, I accept. I will read out again from the JCHR report. It says:

“The policy paper that preceded the Bill, the Government’s ‘New Plan for Immigration’, gave a more detailed indication of what different treatment may look like, as it proposed that instead of fully fledged refugee status, Group 2 refugees would be granted ‘temporary protection’ for a period of no longer than 30 months ‘after which individuals [would] be reassessed for return to their country of origin or removal to a safe third country.’ Temporary protection status ‘will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution.’”


Those are quotations from the Government’s New Plan for Immigration policy statement. In relation to group 2 refugees, who are being created by Clause 11 —that is the new bit and what the Bill is doing—it quite clearly states:

“family reunion rights will be restricted”.

I ask again: is that correct or incorrect? If it is not, why is it written in the JCHR report? If the Minister is going to tell me that the JCHR has got it wrong, please say so clearly now.

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[Baroness Williams of Trafford (Con)]

My Lords, I hope that I can clarify: everyone gets ECHR-compliant family reunion rights. Having clarified that, on the points made by the noble Baroness, Lady Ludford, on Article 8, family reunion will be permitted only where refusing would be a breach of our international obligations under Article 8 of the European Convention on Human Rights.

On how the restrictions for all group 2 refugees will look and whether they will be indefinite or will not apply in certain circumstances, the power under Clause 11(5)(d) of the Bill enables the Secretary of State to differentiate in respect of leave to remain for the family of group 2 refugees. The power is flexible and there is no duty to impose such a condition. Policy will be set out in guidance in the Immigration Rules in due course, but family reunion will be granted to group 2 refugees where a refusal would breach our international obligations under Article 8 of the European Convention on Human Rights.

[Baroness Chakrabarti (Lab)]

To comply with the ECHR means complying not just with Article 8 but with Article 8 read with Article 14, which means respecting the right to family life but also not discriminating in that context. How can it not be discrimination when the whole purpose of Clause 11 is discrimination between group 1 and group 2? It is blatantly a breach of Articles 8 and 14 read together.

[Baroness Williams of Trafford (Con)]

It is differentiation rather than discrimination. The two are quite different.

Amendments 44, 45, 47, 51 and 52 seek to remove the powers to differentiate entitlements. As we have noted elsewhere, these powers are broad and flexible; they do not require the Secretary of State to act in a particular way. Equally, there is ample discretion available in respect of whether a person is granted group 1 or group 2 refugee status. While the detail will be set out in rules and guidance in due course, suffice it to say that the exercise of the powers in question will be sensitive to vulnerabilities and individual circumstances. That enables us to balance the need to take a tough approach with the need to protect the most vulnerable.

We have been clear that our starting point in respect of the length of leave will be a grant of no less than 30 months. Similarly, settlement will be available by virtue of our long-residence rules. We have gone further in our defence of refugee family reunion, noting that we will continue to uphold our international obligations under Article 8, but in any event, there is no requirement to apply such entitlements in each and every case. I repeat that we fully intend to be sensitive to vulnerabilities and individual circumstances in that respect. That is why we have retained a considerable amount of discretion in the drafting.

Turning to Amendment 55, I do not think it would be appropriate or right for us to step outside of the existing power to make immigration rules under the Immigration Act 1971. This is the same power that we use to implement most other aspects of UK immigration policy, including but not limited to asylum policy. Indeed, areas in which we regularly use Immigration Rules to administer the system include the type of leave to remain, the length of leave to remain, the routes and conditions of settlement, and family reunion. It would be inappropriate to do otherwise in this case. The rules are the appropriate vehicle: they have a long-standing and clear procedure, with the appropriate level of scrutiny built in. As I have noted, however, I am absolutely committed to this policy being exercised sensitively with a view to protecting the most vulnerable. There will always be discretion in our policies to make the right decisions in each case, and that extends to the Immigration Rules.

I cannot agree to Amendment 39, which would remove the requirement for a person to claim without delay to be a group 1 refugee. That means that anyone claiming asylum, regardless of whether that was done at the last moment to defer removal, could be a group 1 refugee. That would undercut the entire purpose of the policy and embolden those seeking to abuse our rules. There are already safeguards within the legislation enabling discretion to be exercised, such that a claim should be made as soon as reasonably practicable.

Amendments 43 and 50 would amend the list of ways in which we can differentiate from a non-exhaustive list to an exhaustive one. We must keep all options on the table to prevent dangerous journeys from safe countries, and we can do that only by retaining flexible powers to respond to situations as they arise.

Amendment 48 would prevent the ability to differentiate in respect of family members. This is primarily about coherent policy. We should ensure that, where appropriate, family members of refugees are not treated more or less favourably than the lead applicant, but the flexibility that we wish to retain will also enable us to respond sensitively to particular circumstances as appropriate, including in respect of how we treat family members. For example, let us say we discover that a child has been a victim of abuse by their parents and needs to be taken into care. The flexibility in the powers would enable us to respond to such a tragic situation by granting a more generous entitlement to that child compared to their parents, in order to sympathetically reflect the need in those individual circumstances.

Amendment 53 would remove the ability to differentiate in respect of requirements for settlement for family members. We must keep all options on the table to prevent dangerous journeys from safe countries, and we can do this only through retaining flexible powers to respond to situations as they arise. That said, I anticipate that many if not most families will receive the same length of leave to remain to ensure that all qualify for settlement on the same terms at the same time. However, we want to retain the ability to respond flexibly to challenging situations that might require us to do otherwise in respect of length of leave for a refugee and their family.

I turn to Amendment 41, in the name of the noble and learned Lord, Lord Etherton. I hope I can offer some reassurance that his concerns have already been accounted for in the policy, so there need be no further amendments to the Bill in this respect, as I outlined earlier. We envisage that the provision will apply in cases where a refugee meets the first two limbs of Article 31— that is to say, they came direct and claimed “without delay”—but, at the time of the claim, they had entered or were present in the UK unlawfully, having, for instance, overstayed an economic migrant visa.

To illustrate, let us say a person overstayed their visa and then lodged an asylum claim. Because they had entered the UK directly and ostensibly claimed without delay, they might be eligible for group 1 refugee status but, due to having overstayed, we would also check whether they had

“good cause for their illegal … presence”

at the point of claim. If they had no good reason for having been in the UK illegally, they might be liable for group 2 status. An example of where good cause could be shown might be if a person had overstayed their visa and then lodged an asylum claim—a very similar situation to that described by the right reverend Prelate the Bishop of Durham. If their reason for overstaying and lodging an asylum claim while in the UK illegally was on the grounds that they feared presenting to the authorities because they were homosexual, in such a case this may well amount to a good cause.

Suffice it to say that the powers in the Bill are broad and flexible and therefore enable us to exercise discretion where appropriate, including with respect to “good cause”, which will be reflected in guidance to caseworkers.

I turn my attention to Clause 11 as it currently stands. These powers are primarily intended to uphold the “first safe country of asylum” principle. Clause 11 provides a power, as noble Lords have pointed out—they are not very happy about it—for the UK to differentiate according to whether people satisfy certain criteria based on those in Article 31.1 of the refugee convention. The Government have set out their interpretation in Clause 36. I will not distract the Committee from the issue at hand by going through the provisions of Clause 36, because they will be debated in full.

If I may just pick up the points made by the right reverend Prelate the Bishop of Durham, and the noble Baronesses, Lady Ludford and Lady Chakrabarti, on Article 31, the criteria we use as the basis for differentiation are not based expressly on one’s method of arrival. Instead, they are based on the criteria within Article 31 of the convention: whether someone came directly and claimed without delay, and, where applicable, had

“good cause for their illegal entry or presence”.

The clause acts on our commitment to do everything we can to deter individuals, as I have said, from making dangerous and unnecessary journeys through safe third countries, often putting lives at risk. I hope I have fully explained the Government’s rationale and addressed noble Lords’ questions. If I have missed anything out, I am very happy to follow up in writing but I hope that noble Lords will feel happy to withdraw or not press their amendments.

[Lord Griffiths of Burry Port (Lab)]

My Lords, what a debate this has been. I thank all those who have contributed to it. It has certainly laid bare the points of difference that are going to have to be resolved at a later stage in the consideration of this Bill. I say to the noble Lord, Lord Kerr, that the lipstick is back in my pocket and the piglet is running free.

I appeal to the noble and learned Lords who have so helpfully intervened in this debate. I made the case at Second Reading that I was hearing two legal positions established that I, as a non-lawyer, could not reconcile. I was hoping that noble and learned Lords would bring all their pals in to help us see the basis on which the Government’s legal judgment is reached, since the Government do not choose to reveal this; perhaps they do not do so habitually. I said that this would help those such as me to understand. The UNHCR statement I read—all 72 pages of it—is very clear, it really is. I have not heard what convinces me that an opposite case can equally be true. I think we are going to need some help. I implore noble and learned Lords not to go on holiday before Report, please.

So we come to the end of this long debate. I thank the Minister for her spirited response. It is no joke standing there and defending yourself against what you perceive to be the slings and arrows of outrageous fortune, but she did it with some courage. I also thank all those who intervened on her because, in this way, we have opened matters up. Before Report, some of us are going to have to do some serious thinking and come back in a focused way to take this matter further in a way that satisfies all of us.

Is it not incredible that the Prime Minister is, this very day, in Kiev in Ukraine, arguing that Britain honours its international agreements directed towards those at the far-flung edges of Europe? I would that he come back in his plane via Turkey, Greece, Spain and Italy to show how he is equally committed to the international agreements and treaties we have entered into in respect of the way we treat refugees. With all that said and a little bluster on my part, I am glad to put the piglet running and out of the way. I beg leave to withdraw the amendment.

Nationality and Borders Bill

Baroness Williams of Trafford Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Rosser (Lab)]

As my noble friend Lady Lister of Burtersett said in moving this amendment, Clause 11 provides that to be a group 1 refugee you must have presented yourself to the authorities “without delay”. This amendment would provide that vulnerable groups are not subject to this time constraint. As one sees from reading the amendment, this would include, though not exclusively, children, survivors of torture, sexual violence and gender-based violence, LGBT refugees, victims of modern slavery and disabled refugees. This is a probing amendment to find out more about how the “without delay” provision will work in practice. As has been said, traumatised people, for example survivors of sexual or gender-based violence, who are largely, but certainly not exclusively, women, do not always feel —to put it mildly—in a position to unburden themselves to the first complete stranger or border, immigration or other government official that they meet on arrival.

The position of single men and sexual orientation has also been raised. The noble Baroness, Lady Neuberger, referred to the article in the Times about single men who arrive from across the channel being detained and locked up. In a previous debate, I asked whether the Minister could say whether that Times article was true. I ask again: is that article true or false? It is important that we get an answer because it relates to this amendment as well.

As well as answering that question, I hope the Minister will give some indication of how the “without delay” provision will work in relation to the vulnerable groups covered by the amendment, what kind of leeway or otherwise the Government intend there to be and what exactly “without delay” means in this context.

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

My Lords, I thank all noble Lords who have spoken in this debate for what have been very thoughtful contributions. I will directly address the question that the noble Lord asked me in the previous group about locking single males up. I have not seen the Times article. If he will allow me, I will look at it and respond in due course.

Although the policy is intended to deter dangerous journeys and encourage people to claim asylum in the first safe country, I assure noble Lords that we have been very careful to strike the right balance between how the policy achieves its aim and protecting the most vulnerable, which is what noble Lords have spoken about this evening. Before I explain why I think statutory exemptions are probably not needed, I will offer a few thoughts in relation to how the “without delay” element of Clause 11 is anticipated to operate.

There are two broad categories under which I envisage the exercise of discretion is most likely to be appropriate. The first is where a person finds themselves unable or unwilling to present themselves to the authorities for any reason that pertains to their proposed asylum claim. In such instances, there will need to be very careful consideration of whether it was reasonably practicable for that person to have claimed without delay. For example, if they had been tortured—noble Lords have given this sort of example—suffered sexual violence at the hands of state authorities or, indeed, feared admitting their sexual orientation due to state persecution on those grounds, this sort of situation would trigger very careful consideration.

The second category is where a person was simply not in control of their actions. In such circumstances, we would also be very careful to consider the facts of that case when determining whether it was reasonably practicable for that person to have claimed without delay. I think primarily of victims of human trafficking, unaccompanied children, and those suffering serious physical or mental disabilities.

The noble Baroness, Lady Lister, asked about statistics. I do not have them to hand, but I will try to get them.

On the guidance and training, one of the things that I looked into in great detail way back, when we talked about LGBT people in the detention estate, was how practitioners went about establishing claims made on the basis of a person’s sexual orientation. It is fair to say that, back in the day, “clunking” would probably have been a charitable word to use—some of the ways people were questioned were on the verge of being inhumane. We really went to extraordinary lengths to try to change that and make it a much more humane process. It is now about establishing the reasons why someone is making a claim, not proving it, so our policies and training are now designed to support claimants in being able to explain their claim in a very sensitive and safe environment. Our approach, I can confirm, is trauma informed.

Our guidance on sexual orientation and gender identity, as I said previously, was developed to take these issues into account—UNHCR, Stonewall and Rainbow Migration contributed to its development—and we will review and update our training and guidance where necessary to support people who are LGBT+. I confirm again that this will take people’s experiences into account, including the trauma that they have suffered. I thank those organisations, particularly Stonewall, Rainbow Migration and UNHCR, that have helped to make the process far more humane so that people’s very difficult journeys and experiences are eased somewhat by our attitude and approach.

[Baroness Lister of Burtersett (Lab)]

I thank noble Lords very much for their support for this amendment—their willingness to apply some lipstick to the pig that I think we would all like to be rid of. Some very powerful speeches made the case very strongly for why the groups which are listed may well have good reasons for delay. I take the point that any asylum seeker is, by definition, likely to be vulnerable, but we are talking here about those who have particular vulnerabilities.

I thank the Minister for giving more of a sense of what will happen. It is late and I need to read what she said, but I think that the powerful speeches from noble Lords and the Minister’s response justified our taking this as a separate amendment. As I have said, it was not interrogated in the Commons; this has given us a chance to do that.

I thank the Minister for saying that she will look into the statistics—it was I, in fact, who raised it; I think Women for Refugee Women would value having whatever statistics are available. However, just last week, the British Red Cross produced research suggesting that, for all the better training and guidance, women asylum seekers are still treated very badly, with a lack of gender sensitivity and trauma sensitivity. I would encourage the Minister to read this research, think about it and see what more needs to be done.

--- Later in debate ---

[Lord Rosser (Lab)]

My Lords, one of the ways that the Government can differentiate under the Bill between group 1 and group 2 refugees is to apply “no recourse to public funds”. The two probing amendments in this group would remove that provision. I listened with interest to what the noble Baroness, Lady Stroud, had to say, as I did to my noble friend Lady Lister of Burtersett in moving the amendment. The noble Baroness, Lady Stroud, asked what the policy intent of NRPF is—I think she asked that twice during her contribution. Having heard the view of the noble Lord, Lord Hunt of Wirral, I will be interested to hear what the Government’s view is of the policy intent behind no recourse to public funds being applied to group 2 refugees.

We fully agree with these amendments, which are probing. A question was put to the Minister, and I simply want to support that ask of the Minister to set out in detail when the Government would consider this an appropriate differentiation to use, and in what cases. To whom within group 2 refugees do the Government expect this differentiation on no recourse to public funds to be applied, and in what circumstances? Against what criteria will that decision be made?

We are not talking about applying no recourse to public funds to persons without a valid refugee claim or economic migrants. Clause 11 applies solely to people the Government recognise as refugees with a valid right to be here and to seek safety. Bearing that in mind, it would be interesting to find out in what circumstances they think it appropriate to apply no recourse to public funds to people in the group 2 category.

[Baroness Williams of Trafford (Con)]

My Lords, I thank noble Lords for explaining their Amendments 46 and 54. As I have said elsewhere, I hope I can reassure the Committee that the powers under Clause 11 are both broad and flexible.

To come first to the question of the noble Lord, Lord Rosser, there is no obligation to exercise the provisions and, where they are exercised, there is no requirement to do so in any particular way. We will of course produce guidance and rules in this respect in due course, but those products will reflect the flexibility in the clause by providing appropriate discretion to take into account people’s individual circumstances.

The same therefore applies to no recourse to public funds. Details will be set out in due course, but I reassure noble Lords that we will take particular care to take into account relevant factors when considering the imposition of the condition, if it is imposed at all, including the impact on families, children and other vulnerabilities that have been raised elsewhere. In addition, we are mindful of potential impacts on local authorities and wider civil society. The policies in the Bill are of course subject to an impact assessment in any event. I stress that no one will be NRPF if they would otherwise be at risk of destitution. If they are, they can apply for a change of conditions to remove the condition.

I shall pick up on a few points. The first was about the policy intent, which is to disincentivise dangerous journeys. My noble friend Lord Hunt of Wirral is right: we have to disincentivise people from risking their lives.

My noble friend Lady Stroud talked about safe and legal routes. She was probably not in the Chamber when I laid out absolutely all of them. I refer her to the letter I sent to the noble Lord, Lord Dubs, setting all of them out, including several routes for family reunion; I hope she will take a look at that. I commend her on coming up with the solution, yet again, of working with the French. I agree that we need to work not only with the French but with other countries because this is a global problem that now requires a global solution from each and every state on the globe.

I turn to push factors versus pull factors. Push factors do not explain secondary movement, there is no doubt about that. If push factors were all, people would stop in the first safe country that they reached—that is an absolute fact. We must keep all options on the table to stop illegal migration. I hope, but doubt, that I have reassured the noble Baroness that I appreciate and understand her concerns, and the requisite levels of discretion and sensitivity will be exercised with respect to—

[Baroness Stroud (Con)]

I thank my noble friend for giving way. I would like to clarify one point. I think she is saying that the removal or application of, or access to, public funds is discretionary. If that is the case, who has the discretion to apply or withdraw them? It is unusual for the welfare state to be quite so discretionary and, in effect, subject to subjective judgment. It would help to have clarity as to who can say this person will have access to public funds and that person will not.

[Baroness Ludford (LD)]

Before the Minister answers—I am sorry to prolong the debate; I was going to leave this point until group 8 on the right to work—she talked about pull factors being an absolute fact, but the Migration Advisory Committee said in its annual report in December:

“To the extent that the Home Office has robust evidence to support a link between the employment ban and a pull factor, they should of course make this evidence publicly available for scrutiny and review. That is how good policy is made.”

[Baroness Williams of Trafford (Con)]

I thank the noble Baroness, but I disagree.

To answer my noble friend’s intervention about who decides, it is caseworkers.

[Lord Rosser (Lab)]

I may have misunderstood the thrust of what the Minister has said on behalf of the Government, but it came over to me that the reason why we have no recourse to public funds is to disincentivise dangerous journeys—that is, people will know that there is no recourse to public funds, and if they know that it may make stop them making those journeys.

If that is the case, why cannot the Government tell us the circumstances in which no recourse to public funds will apply? Their response has been, in effect: “Someone will draw up guidelines later on, but we do not know at the moment what they will say or the circumstances in which there would be no recourse to public funds.” In that situation, it just is not credible to say that something where the Government do not know how it will be applied would act as a disincentive on dangerous journeys.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

Yes, my noble friend is absolutely right. It is not unusual for guidelines to be drawn up after legislation has been brought in.

[Lord Rosser (Lab)]

It is true that it is not unusual for guidelines to be drawn up subsequently but, presumably, in including the provision in the Bill, the Government had at least some idea of the circumstances in which it would be applied. The answer I am getting now is that they cannot tell us any circumstances in which it will definitely apply.

[Baroness Williams of Trafford]

It might be helpful to the noble Lord if I outlined situations in which it might be applied, as opposed to putting them in the Bill. I am very happy to go away and look at that and write to him with some examples of where it might be applied—I get his point on that.

[Baroness Lister of Burtersett (Lab)]

I thank all noble Lords who have spoken. There have been some very powerful arguments for the amendment. I am particularly grateful to the noble Baroness, Lady Stroud: she put it better than anyone else could, drawing on her knowledge of these issues. I thank the Minister but I must say that I am disappointed. The whole point of the amendment was to try to get a bit of clarity—my noble friend Lord Rosser has been trying, without success—but, to be honest, I am none the wiser now than I was at the beginning as to who will and will not be subject to the “no recourse to public funds” rule.

The noble Baroness, Lady Stroud, made the point that discretion involves subjective judgment. I have been involved in social security for a long time. There was a reason why we reduced the element of discretion in it: because subjective judgment may be used in ways that we do not feel very happy with. It can be negative as well as positive. All that we know about the culture of disbelief in the Home Office, the refugee system and so on does not fill me with great hope.

I am glad that the Minister said that she will write to my noble friend; I hope that she will copy it to everyone who has taken part in this debate. I hope that she will look at Hansard and the questions I asked to see whether she can answer some of them. If she cannot, it suggests that, as my noble friend said, this has been put in the Bill without a clue as to what it will actually be used for—and that is not good.

Data Protection: Immigration Exemption

Baroness Williams of Trafford Excerpts

Monday 31st January 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we last debated this on 19 January and I thank the noble Lord, Lord Paddick, for bringing this Take Note Motion to the House. To put it on the record, in 2018 the Labour Party opposed the immigration exemption, but, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, accurately said, we voted in favour of the Government’s position regarding the statutory instrument which we considered on 19 January.

I reread the lobbying material we have received from the Open Rights Group and the3million. It is clear that the Court of Appeal suspended the effect of its declaration until 31 January—which is today—and I do not know enough about the procedure of that court, but will we receive some information, maybe through the Government, of the result of that declaration? I can see that both noble Lords are shaking their head.

I thank the Minister for copying me in on the letter she sent to the noble Baroness, Lady Hamwee. It makes clear there was some attempt at consulting the Open Rights Group and the3million, but clearly that discussion did not result in placating those groups. So it may well be that there is a further judicial review or a further challenge by those groups. The noble Baroness, Lady Hamwee, has very fully set out the likely basis for that challenge.

As we said in the aftermath of the debate on the statutory instrument, the noble Baroness, Lady Hamwee, and the noble Lords, Lord Paddick and Lord Clement-Jones, have a lot of experience with this Bill, having debated it in 2018 and having brought the matter back repeatedly since then. We on the Labour Benches will be interested to hear what the Minister has to say. As I said, we originally opposed this element of the Bill and we would be interested to see how confident the Minister is that the changes put forward by the Government will not result in a further challenge.

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

I thank noble Lords who have spoken in this debate. As noble Lords will know, paragraph 4 of Schedule 2 to the Data Protection Act 2018 outlines specific rights under the UK GDPR that can be restricted if they would likely prejudice either

“the maintenance of effective immigration control, or … the investigation or detection of activities that would undermine the maintenance of effective immigration control”,

known as the immigration exemption. As noble Lords have pointed out, these regulations amend the immigration exemption, following the judgment in the case of Open Rights Group & another v the Secretary of State for the Home Department. This statutory instrument builds on existing safeguards of individual rights and should be welcomed.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, if I may interrupt the Minister, Lord Justice Warby’s decision on that is utterly clear about what Recital 41 does require. That is precisely the point of contention.

[Baroness Williams of Trafford (Con)]

My Lords, it is, but it does not specify by way of form or content of the legislative measure, and that is the point I am trying to make.

[Lord Clement-Jones (LD)]

But it has to be a legislative measure, not guidance.

[Baroness Williams of Trafford (Con)]

Perhaps I could reiterate that Recital 41 states that:

“Where this Regulation refers to a legal basis or a legislative measure, this does not necessarily require a legislative act adopted by a parliament”.


We will beg to differ on that, but I am just quoting what Recital 41 says.

To address the court’s concerns, the regulations therefore amend the immigration exemption, primarily to include all the relevant matters in Article 23(2)(a) to (h) of the UK GDPR. It might be helpful if I provide some details on those matters that are not relevant and are already covered in the DPA 2018. For those particular matters, no amendments are needed to the legislation, as well as for those matters that are not relevant. I will provide some details on the measures that are relevant and for which amendments have been made.

Before I do that, I point out that the regulations introduced a statutory requirement for the department to have an immigration exemption policy document before the immigration exemption could actually be applied—that is in response to the noble Lord, Lord Paddick. Regulation 2(2)(b) specified what must be addressed in the policy, and the controller must have regard to it. In answer to the noble Baroness, Lady Hamwee, we are working to tighten the deadlines set by the court, and we did publish the IEPD draft on 10 December on GOV.UK.

Continuing now on what is and is not relevant, the following limbs of Article 23(2) are already sufficiently covered in the DPA 2018. Therefore, no amendments will be made to the legislation in relation to those limbs. They are, from Article 23(2):

“(a) the purposes of the processing or categories of processing; (b) the categories of personal data; (c) the scope of the restrictions introduced … (g) the risks to the rights and freedoms of data subjects”.


The requirement under Article 23(2)(f) to make provision in respect of

“the storage periods and the applicable safeguards taking into account the nature, scope and purposes of the processing or categories of processing”

is not relevant, as the immigration exemption does not purport to extend data storage periods, and so no amendments are proposed in this regard.

On amendments made in relation to Article 23(2)(d), including the IEPD, the article states that where relevant there shall be provisions for safeguards to prevent abuse or unlawful access or transfer. This instrument will introduce additional measures to address Article 23(2)(d). It will mandate the Secretary of State to have an immigration exemption policy document in place prior to the exemption being relied on; that they must have regard to their IEPD when applying the exemption; that a record is kept of the application of the immigration exemption; and that the data subject be informed of its application, save in certain circumstances.

The IEPD and any subsequent updates to it will be published in a manner that the Secretary of State considers appropriate. Publication will allow for flexibility, where future concerns arise—I will take back the comments that the noble Baroness, Lady Hamwee, made this evening. There is no requirement to go through Parliament and any future concerns, if they arise, could be addressed in a shorter timeframe.

The regulations also specify what the IEPD must address. This additional measure will promote high standards of safeguards in applying the immigration exemption, consistent with those in relation to personal data relating to criminal convictions and offences. The IEPD explains how the immigration exemption must be operationally applied and the circumstances in which data rights might be exempted. These are set out in clear and precise terms. They will form part of Schedule 2 to the DPA 2018 once in force and, as such, will clearly constitute legislative measures.

Amendments are also made to Article 23(2)(e), on provisions as to the specification of the controller or categories of controllers, and to Article 23(2)(h), which states that where relevant there shall be provisions for the right of a data subject to be informed about the restriction, unless that is prejudicial to the purposes of the restriction—we went through that during the previous debate. The instrument will amend the immigration exemption so that the controller will have to inform the data subject that the exemption has been relied upon unless to do so would prejudice the purpose of the restriction, once again proving our commitment to be as open and transparent as we are able.

I am not sure whether it was the noble Baroness or the noble Lord who asked about the consultation process, but they almost played my words back to me. We consulted the parties to the litigation and the ICO and considered carefully their observations and comments, making amendments to the draft as appropriate, but clearly we did not take everyone’s comments on board, and therefore the court process came into being. We have tried, as far as possible, to address the issues through the IEPD.

I hope that noble Lords are now satisfied—I do not think they are, judging by their faces. I shall leave it there.

[Lord Paddick (LD)]

My Lords, I am grateful to the Minister for reiterating the Government’s position. I am also grateful to my noble friend Lady Hamwee for her detailed analysis of the issues, my noble friend Lord Clement-Jones for his support, and the noble Lord, Lord Ponsonby of Shulbrede. To quote the Minister, I think we will have to agree to disagree. Sadly, another case appears to be inevitable. I beg leave to withdraw the Motion.

Intelligence: Russia

Baroness Williams of Trafford Excerpts

Monday 31st January 2022 Lords Chamber

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

My Lords, I am very pleased to confirm that, as announced in the Queen’s Speech, the Government are committed to bringing forward new legislation to counter state threats and ensure that our world-class security services and law enforcement agencies continue to have the tools that they need to tackle the evolving threat and any challenging or hostile activities by any state.

[Lord Wallace of Saltaire (LD)]

My Lords, in that case, where is the Bill? This is a question of priorities. We have a number of badly drafted, long Bills before the House at present, but this is a question of national security. It is two and a half years since the ISC Russia report was published and the Prime Minister has dragged his feet ever since. Can the Minister assure us that the links of the Russian elite to the UK, to which the report refers, and its links to political parties are not part of the cause of the delay, given the amount of Russian-origin money which has flowed into Conservative Party finances?

[Baroness Williams of Trafford (Con)]

I can absolutely assure the noble Lord of two things. The Bill will be state agnostic and linked to the actions of whichever state or actor is trying to perpetrate evil against this country; it will not be country specific. On the delay, this area of law is complex and some of this legislation has not been updated in over a century, so we must make sure that we both bring it up to date and future-proof it.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I declare my interest as chairman of the Reserve Forces review 2030. Providing access to skills and tools was at the heart of the Question. The Reserve Forces review 2030 is all about trying to access civilian skills through the medium of the reserve to support the Government. Given the relationship between the intelligence agencies and defence intelligence, does my noble friend not think that, if we were better at this, we could use the reserve to provide the very skills we are calling for to counter the Russian threat?

[Baroness Williams of Trafford (Con)]

My noble friend homes in on a very important point, which is that we must use all the skills and tools in our armour to counteract whichever threat we are facing. That is why it is so important that this Bill comes forward to allow us to use those skills and tools.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, does the Minister think that President Putin is going to treat seriously any threats from Boris Johnson or Liz Truss, when we are continuing to give hundreds of Russian oligarchs golden visas to enable them to get British citizenship and, perhaps even eventually, membership of the House of Lords? Is this not a total farce?

[Baroness Williams of Trafford (Con)]

My Lords, in terms of people being a threat to this country, the noble Lord talked about, as I have often done, the funny money that might be swirling around—

[Lord Foulkes of Cumnock (Lab Co-op)]

The golden visas.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I think he kind of talked about both: visas and money coming into this country. He will know from legislation that I brought in previously that, through unexplained wealth orders and things like that, we are doing everything we can to stop the flow of illicit finance in this country. I cannot comment further on golden visas, except to say that we are very, very careful about the visas we issue and the people we let into this country.

[Baroness Kramer (LD)]

My Lords, speaking of legislation that has not appeared, will the Minister acknowledge, as other Ministers have, that the Bill providing for a public register of the beneficial owners of property in the UK has been ready to go for weeks but has not yet been introduced in this House? Will she also confirm that the intelligence services have no hope of dealing with what is known as the London laundromat until that Bill becomes law, when civic society across the globe and activists can assist the intelligence services in getting to the bottom of these chains of ownership that lead, in the end, to oligarchs and kleptocrats?

[Baroness Williams of Trafford (Con)]

The noble Baroness illustrates some of the complexities around state activity. She is absolutely right—I recall her being involved in the Bill—and the Government have made a start on this. We have things such as unexplained wealth orders in place, and we will be bringing forward legislation to deal with the various threats that are impeding the rule of law and our economy.

[Lord Coaker (Lab)]

My Lords, in the 2020 report the committee found that until recently, the Government had badly underestimated the response required to the Russian threat and were still playing catch-up. Shockingly, that same report also found that the UK was clearly a target, but that no one within government was prepared to take responsibility for the defence of the UK’s democratic processes. Therefore, can the Minister reassure the House that whatever legislation the Government are proposing will deal with those specific points, and that they will move quickly to deal with this and the other issues that noble Lords have raised today?

[Baroness Williams of Trafford (Con)]

I most certainly can reassure noble Lords that we will be looking at all legislative possibilities to deal with the various issues that the noble Lord, the noble Baroness and other noble Lords have raised today.

[Baroness Ludford (LD)]

The Foreign Secretary pledges “nowhere to hide” for Putin’s oligarchs, but they are “hiding in plain sight” in their London mansions. In 2018, the Commons Foreign Affairs Committee said that the London laundromat of corrupt, Kremlin-connected assets

“has implications for national security.”

That was nearly four years ago. Do we have to wait until its chairman, Tom Tugendhat, becomes Prime Minister, as he wants to do, before action is taken?

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

As far as I am aware, there is no vacancy for the post of Prime Minister, but there is ongoing work to implement the recommendations as soon as practicable. I note at this stage that the majority of the recommendations do not actually need legislation, but we are getting on with them and great progress is being made.

[Baroness Whitaker (Lab)]

My Lords, might not the current threat from Russia be diminished if Ukraine could be persuaded to adopt a neutral stance like that of Finland?

[Baroness Williams of Trafford (Con)]

I do not think I would agree with that point, no.

[Lord Campbell of Pittenweem (LD)]

My Lords, have the Government ever considered the use of compulsory purchase orders when ownership of property is being deliberately concealed?

[Baroness Williams of Trafford (Con)]

The noble Lord makes an appealing point but the situation is far more complex than that. Particularly with the unexplained wealth orders legislation that I brought through a couple of years ago, it is not as easy as just compulsorily purchasing houses.

[Lord West of Spithead (Lab)]

My Lords, I declare an interest as the House of Lords member of the Intelligence and Security Committee. These reports are done in huge detail, with huge inputs from people who know a lot about this. Particularly in the case of the Russian report, it took a very long time for it even to be taken note of by the Prime Minister. Can the Minister ensure that reports such as that—other reports are on their way—are actioned rapidly and moved forward, rather than being effectively sidelined?

[Baroness Williams of Trafford (Con)]

I agree with the noble Lord’s point. Ongoing work is being done to implement the recommendations in the report, many of which do not need legislation. However, the noble Lord makes an absolutely valid point.

[Lord Austin of Dudley (Non-Afl)]

My Lords, the weekend papers were full of reports saying that the Government were threatening to sanction members of Putin’s inner circle if he went ahead and invaded Ukraine. However, given that he has invaded Crimea, assassinated his opponents here in the UK and looted Russia’s economy, thereby impoverishing the poor Russian citizens, why have the Government not considered doing this anyway?

[Baroness Williams of Trafford (Con)]

The noble Lord is absolutely right. I am not party to some of the discussions going on in the FCDO and elsewhere, but he highlights the point that we have a major problem with regard to the influence here.

[Lord Young of Norwood Green (Lab)]

My Lords, the reason why Putin and his ilk do not worry too much about economic sanctions is that much of their wealth is laundered over here. The Minister referred to the unexplained wealth orders legislation. Can she explain why there have been few, if any, successful prosecutions?

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[Baroness Williams of Trafford (Con)]

There have been some, and as I have explained to the House, it is quite complex and sometimes these things are very difficult to secure. There is more work to be done.

Nationality and Borders Bill

Baroness Williams of Trafford Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

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

My Lords, I thank all noble Lords who have spoken in this debate. I hope that, at the end of my response, they will feel that I have at least given a partly positive response. I am aware that the noble Baroness, Lady Ludford, did not refer to this at Second Reading, but I am very grateful for the discussion we had—I think only yesterday—about this and other matters. I found it very helpful.

I, too, understand the strength of feeling being expressed. I both sympathise and empathise with the residents of the Chagos Islands about how they were treated back in the 1960s and 1970s. I also agree with the noble Baroness, Lady Lister, that return and citizenship are two different matters in relation to the Chagossians.

We recognise that some former residents of what is now the British Indian Ocean Territory missed out on rights to British nationality when legislation was last passed in 2002 to address the nationality of the Chagossians. Section 6 of the British Overseas Territories Act 2002 granted British Overseas Territories citizenship and British citizenship status by descent to any child born on or after 26 April 1969 and before 1 January 1983, where the mother was a citizen of the United Kingdom and colonies by virtue of her birth in the British Indian Ocean Territory. This measure reflected the removal of the Chagossians from the British Indian Ocean Territory and the fact that the mother of a British Overseas Territories citizen could not pass on her citizenship to a child born outside of the UK or a UK territory. The Chagossian community, however, has criticised this provision because it did not provide for circumstances where women left the BIOT before 26 April 1969 in anticipation of being required to leave, nor did the provision allow children to inherit citizenship from an unmarried BOTC father.

Here is the partly positive response to these concerns. I am pleased to say that the Nationality and Borders Bill currently makes provision to extend BOTC and British citizenship rights to any second-generation Chagossians who were not able to acquire citizenship through their mothers or unmarried fathers, due to discrimination in nationality law.

The issues are complex. As one noble Lord pointed out, some family members in the same generation hold British nationality while others do not. I agree with my honourable friend the Minister for Safe and Legal Migration, who stated in the other place that the Government are keen to consider what more we can do to support families seeking to settle here under the current system. Minister Foster has said that he is open to considering how we might use the FCDO £40 million fund package to support the Chagossians settled in the UK.

I must point out the position that successive Governments have expressed on this point. Amendment 11 would undermine the principle in our nationality law that applies to all other descendants of British nationals. Second and subsequent generations, born and settled outside the UK and its territories, do not have a right or entitlement to register as British nationals. I know that the amendment from the noble Baroness, Lady Lister, seeks, as she said, to limit the right to register as a British national to current generations who must apply within a limited timeframe. This does not alleviate the Government’s concern that offering this right is contrary to long-standing government policy. It goes further than the rights available to many other descendants of British nationals settled elsewhere around the world.

The noble Baroness requested that I meet her and others interested in this matter. I always follow up on requests from noble Lords and I am very happy to meet her. We will consider the point raised by my noble friend Lord Horam about what more we can do to address concerns about the Immigration Rules. My noble friend Lady Altmann raised a point about citizenship. Of course, those without citizenship become overstayers. These are complex issues. As I said in reply to my noble friend Lord Horam, we are happy to consider what more we can do through the immigration system.

[Baroness Chakrabarti (Lab)]

In the light of the eloquent and compelling speeches made in this debate, does the Minister concede a distinction between people who leave a territory to settle elsewhere and people who are forcibly evicted from that territory?

[Baroness Williams of Trafford (Con)]

I do not think that anybody in this Committee would say that what happened to the Chagossians was, by any means, acceptable to them personally. I do not think I was trying to make that case.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank everyone who has contributed to this debate. It is fair to say that there is unequivocal support across the Committee—perhaps not for the exact wording of the amendment, but for what it is trying to achieve. Noble Lords spoke very strongly. It is unusual for nothing to be said in opposition to what is trying to be achieved.

The Minister expressed her sympathy and empathy. I am afraid that butters no parsnips when it comes to what the Chagossians rightly want. As other noble Lords have said, this is a question of justice and human rights. My noble friend Lady Chakrabarti asked a pertinent question about the distinction between those who choose to leave a British territory and those who are forced out. The Minister has accepted that a wrong was done. Whichever Government were in power—I know it was my party—we share the shame. Here is an opportunity, not to put it right but at least to do something tangible that will go some way towards putting one aspect of it right.

I am desperately disappointed that the Government are still using the argument that, because the Chagossians are in the wrong place, they are subject to a long-standing principle of British law. What other group of people has been forcibly evicted in this way? As I said, we are not setting a precedent because I assume we are not planning to evict anybody else.

I thank the Minister for the offer of a meeting. Perhaps we could take a cross-party delegation to reflect the strength of feeling across the House. I hope she will think again. If not, I shall want to bring this back on Report.

My noble friend Lady Whitaker has been supporting the Chagossians for many years; I am relatively new to this issue and the legal position is extremely complicated. I may not have it completely right but there is a principle of justice and human rights, which has been recognised across the Committee. We must use this legislation to put it right. As a number of noble Lords have said, there is no better place than this part of this Bill, which is about putting right historical discrimination in nationality and citizenship law. Having said that, I beg leave to withdraw the amendment for now.

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[Lord Rosser (Lab)]

I would like in particular to add our support for Amendment 14 in the names of the noble Lord, Lord Russell of Liverpool, and the noble Baroness, Lady Hamwee. We hope that the noble Lord, Lord Russell of Liverpool, is feeling a lot better very soon.

Labour’s shadow Minister raised this issue in the Commons and received disappointing answers. As we have heard, the amendment would put right a discrepancy in our nationality law and adoption law. Currently, an adoption order can be made where a child has reached the age of 18 but is not yet 19, but the same adoption order can confer British citizenship only where the child is under 18. In the same order, our law provides that a person is a full member of their adopted family but also that they are not, because they cannot share citizenship with them.

The answers given by the Minister in the Commons were that 18 year-olds are

“capable of making their own life choices”,

that they can

“purchase alcohol, accrue debt, join the Army, or vote in an election”,

and so they are

“fully fledged and can theoretically live independently of other family members”.—[Official Report, Commons, Nationality and Borders Bill Committee, 19/10/21; col. 190.]

On that basis, is the Government’s argument that at 18 someone is young enough to be adopted and provided for in our adoption law, but at the same time too old to really be an adopted child and be recognised in our nationality law?

The Minister in the Commons also argued that this change would be “out of step” with existing nationality law. One can only comment that this amendment is not seeking to make a general change to our law. By its nature, it is a completely limited, clearly defined provision for a small number of children who are going through our adoption system. It is difficult to see why this would be controversial rather than a common-sense change.

I also welcome the amendments in the name of the noble Baroness, Lady Hamwee, and her questions to the Government. We await the response with interest. We welcome Clause 7 and recognise that its aim is to provide a means to correct further injustices, but our concerns are, first, to make sure that the clause is used and is not just a token power which the Secretary of State “may” choose to action. That is probed by Amendments 16 and 20. Will the Minister clarify whether it is the Government’s intention that the Secretary of State may choose not to allow for a person to be registered as a citizen in a case where they have been subject to a historical injustice?

Secondly, we wish to be sure that this clause is rightly a reactive and fleet-of-foot mechanism to respond to newly identified problems but that it is not an excuse to avoid making further changes in the law where these are necessary. Where a further injustice or any flaw in our nationality law is identified, the Government must amend the law to rectify that. No doubt, the Government could say in their response whether that is their intention.

On the question of the inclusion of British overseas citizens in the provisions of Clause 7, addressed by Amendment 24, the ministerial response in the Commons was unclear. At the same time, the Minister seemed to claim that the clause needed to be as flexible and unfettered as possible but also that it was right to put limits on it; to not include cases which may arise on British overseas citizenship. That would appear somewhat contradictory.

We support the amendments and await answers to the questions raised by the noble Baroness, Lady Hamwee. I hope the Minister will also respond to my questions on this group of amendments.

[Baroness Williams of Trafford (Con)]

I thank noble Lords for tabling these amendments to Clause 7, which will allow the Home Secretary to grant British citizenship to those who would have been, or been able to become, a British citizen, but for historical legislative unfairness, either an act or omission of a public authority or their exceptional circumstances. It also creates a similar route for governors in overseas territories to grant British Overseas Territories citizenship on the same basis.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken on this late Thursday afternoon, and those who tabled Amendments 25, 26, 27, 28, 32 and 33, for their contributions, which have made it a very lively debate. Some 14 noble Lords talked about wider deprivation, which is obviously not in Clause 9, and five noble Lords spoke on Clause 9 itself. I would like to address some of the most irresponsible scaremongering surrounding Clause 9 that I have probably ever heard. As my noble friend Lord Hodgson of Astley Abbotts says, there have been some quite overblown comments today.

It is very important to be clear about what Clause 9 is and what it is not. It is not, as my noble friends Lord Hodgson of Astley Abbotts and Lord Hunt of Wirral said, an amendment to the deprivation power that has been in force for 100 years. It does not allow the Home Secretary to remove citizenship on a whim. I look forward to a conversation with my noble friend Lady Mobarik, as I was concerned by her level of fear on this. Clause 9 will not strip 6 million people of their British citizenship without warning. It is not targeted at particular ethnic minorities, and it does not change the reason why a person may be deprived of their British citizenship. It does not remove the right of appeal against a decision to deprive law-abiding British citizens, like my noble friend Lady Mobarik, of their citizenship; they have nothing to fear from Clause 9, nor does the mother of my noble friend Lady McIntosh of Pickering, or the grandparents of my noble friend Lady Warsi. They could not be deprived because they have done nothing wrong.

I might add here that the people who need to declare any interest or concern are not those of the Windrush generation, not Jews, not Muslims, and indeed not Catholics such as myself with dual nationality, but terrorists—people who would actually do us harm. I glean from the noble Baroness, Lady Jones of Moulsecoomb, that she does at least support the removal of citizenship in fraudulent applications, if I understood her correctly.

I will start by addressing the amendments relating specifically to Clause 9, and then move on to the amendments that focus on the wider deprivation power. I thank the noble Lord, Lord Anderson, for Amendment 28. I reassure him that the Government have repeatedly made clear that all deprivation decisions are taken carefully, after full consideration of the facts, and in accordance with domestic and international law. I do not think he disputes that. The decisions are, as he knows, already subject to judicial oversight via the statutory right of appeal, and individuals are also able to seek judicial review proceedings, where appropriate, on any aspect of the decision-making process not captured by the statutory right of appeal.

In addition, the Independent Chief Inspector of Borders and Immigration has a wide remit to inspect any aspect of the immigration and nationality system, and at any time can review the use of deprivation powers. The Home Secretary can also commission specific reviews, as desired, which the noble Lord, Lord Anderson, referred to, particularly with regards to their frequency. I look forward to speaking further with him on that that before Report. He will also be aware that the Supreme Court of Appeal and SIAC, the Special Immigration Appeals Commission, have recently affirmed the Home Secretary’s competence to decide on matters of national security.

The noble Lord commented, as did the noble Lord, Lord Paddick, on the number of cases in 2017 and the status of figures since then. The rise in 2017 is due to the large increase in global terrorism. More broadly, I want to assure the noble Lord that the Home Office is committed to publishing its transparency report into the use of disruptive powers, and will do so in due course. I look forward to continuing to engage with him on this matter and others pertaining to this Bill.

My noble friend Lady Warsi asked about the numbers, and I think others did, since 2010. There was an average of 19 between 2010 and 2018. The noble Lord, Lord Anderson, also asked about the comparison with Australia and New Zealand, and kindly shared his papers on this with myself and my officials. I have listened to his points extremely carefully, and I intend to consider them carefully and to continue to engage with him outside this Committee.

Amendments 25 and 26 would mean that we could not deprive a person of British citizenship purely because we did not know where they were and could not get the notice to them. We would be reliant on people whose conduct is serious enough to warrant deprivation keeping in contact. It is not correct to say that we will not ever have to notify someone of deprivation. Of course, if they come back to the UK—and most of them are outside the UK—they will find out; if they do not, one presumes that they did not try to when they came back or do not care.

I move now to the amendments relating to the wider power to deprive someone of citizenship. This is an extremely serious matter and is rightly reserved for those whose conduct involves very high harm or poses a threat to public safety, or those who obtained their citizenship by fraudulent means. The UK Government are absolutely clear that no one citizen should have the right to destroy the lives of other citizens in this country.

As I have mentioned, it cannot be right that we risk the UK’s interests to make contact with dangerous individuals who wish us harm, nor is it right to allow them to exploit a loophole in legislation and retain the benefits of British citizenship simply by removing themselves from contact with the Government or relocating to a place where we could not reasonably send them notice. Amendment 32 would completely remove the ability of the Home Secretary to make a deprivation decision in relation to those high harm individuals. Deprivation would then be possible only where a person has obtained citizenship by fraudulent means.

We have sadly often seen the effect of terrorist attacks on our way of life or the impact of serious organised crime on the vulnerable. The threat picture, as noble Lords have spoken about, is in direct correlation to deprivation—in other words, an increase in the threat picture leads to an increase in the number of deprivations. The 464 figure that the noble Baroness, Lady Jones, cited combines both the fraud and conducive to the public good figures. It cannot be right that these people keep their British passports and remain free to come in and out of the UK as they please. It is the Government’s duty to keep the public safe, and we do not make any apologies for seeking to do so.

But I understand the concerns about “secret” decision-making. Deprivation decisions are made following very careful consideration of advice from officials and lawyers and in accordance with international law. Some of that consideration involves sensitive information and evidence, as noble Lords might be aware, and it would not be in the public interest if that evidence were made public. For example, it could jeopardise ongoing criminal investigations or undercover operations and thus harm those working on behalf of the Government to keep us safe. That is why appeals against a deprivation decision relying on such evidence are heard by the Special Immigration Appeals Commission, or SIAC. Amendment 33 would remove the ability to rely on this sensitive evidence, because with no means to securely air it at the appeal stage, the Government would not be able to take deprivation decisions in these cases. Also, removing the public interest test for certification of deprivation decisions into SIAC risks creating an anomaly within the immigration and nationality system as grounds for certification are the same regardless of case type, and the special advocate system and rules of court ensure that any evidence which can be heard in open court is done so.

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[Lord Moylan (Con)]

My Lords, I think my noble friend has been misadvised in characterising Amendment 27 as imposing any new or further restriction on the power to deprive in the event of obtaining nationality by fraud. That simply is not so; they have misconstrued that clause. Can I ask her a very narrow question? She referred in her speech to the use of deprivation in cases of serious organised crime. Did she mean serious organised crime apart from terrorism?

[Baroness Williams of Trafford (Con)]

It could encompass both, but in the context of what I am talking about, some serious organised crime is outside of terrorism.

[Baroness Fox of Buckley (Non-Afl)]

Can I just a question that relates to that? A picture has been painted of a group of people darting over borders with their passports, getting away with serious organised crime and terrorism. I wondered why somebody did not stop them if they were involved in serious organised crime or terrorism and bring them in, as it were. What about those people involved in serious organised crime and darting over borders who do not have a parent or grandparent that means they are potentially able to live in another country? Are the Government suggesting that the harm British citizens are being protected from is all committed by people who are coincidentally related to somebody which means that they can go and live somewhere else? Are there no home-grown, with nowhere else to go types doing any of this harm that threatens British citizens?

[Baroness Williams of Trafford (Con)]

Of course there are home-grown people trying to do harm to our British citizens, but this is one of a number of powers to try to reduce high harm activity against the people of this country.

[Baroness Warsi (Con)]

As a follow-on from the noble Baroness’s question, I have a question that I asked in my initial intervention. Why should they be treated differently? Say one person is involved in serious organised crime, such as major drug dealing, child trafficking or sex trafficking offences, and another person commits exactly that same offence, and say both of them were born in the United Kingdom, raised in the United Kingdom, have never lived anywhere else and have never taken citizenship of any other country. If they commit exactly the same crime, why should one be told to leave and the other not?

[Baroness Williams of Trafford (Con)]

My Lords, what I think I have tried to explain today—and it will be obvious that are clearly differences between us—is that, where the highest harm individuals can rely on another citizenship, the Home Secretary has within his or her power the ability to remove that citizenship. Of course, the one citizenship that is protected is when someone is only a British citizen and of no other territory.

[Baroness McIntosh of Pickering (Con)]

My Lords, this debate has been very moving in parts and extremely thoughtful, and I thank everybody across the House who contributed.

I, for one, am not unsympathetic to what the Government are trying to do. To tackle my noble friend Lord Hunt full on, I think he said that if Parliament does not accept Clause 9 then the Committee, or Parliament, will try to stop the Government from doing it. From what I have heard from the debate today, I think that is precisely the mood of the Committee and the conclusion that we have reached.

There are a number of alternative amendments. The noble Lord, Lord Blunkett, and the noble Lord, Lord Moylan, have come to blows, if you like, as to the purport of Amendment 27. There are parts of the amendments tabled by the noble Lord, Lord Anderson, that I find attractive, in particular removing the whole of Clause 9.

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[Lord Rosser (Lab)]

My Lords, my name has been added to the proposal to oppose Clause 10 standing part of the Bill, which was tabled by the noble Lord, Lord Paddick. As has been said, Clause 10 is intended to disentitle stateless children in the UK from their statutory right to British citizenship. It proposes amending and restricting a vital safeguard in British nationality law that prevents and reduces childhood statelessness. Under our international obligations, we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here.

Through Clause 10, the Government now propose to restrict and amend that obligation. Clause 10 requires the Secretary of State to be satisfied that a child was unable to acquire another nationality before being permitted to register as a British citizen. That creates an additional and unjustified hurdle to stateless children’s registration as British citizens, which could be difficult for a child or those acting on their behalf to prove.

Rather than helping such children attain citizenship, the Government are intent on putting up more barriers and making it more difficult for children under 18 to be registered. They seem to want to try to deny citizenship, particularly citizenship of the place where the child was born and lives—in fact, the only place they know. No doubt the Government will explain what substantial wrong they consider this clause addresses and what hard evidence there is that that wrong is actually significant, as opposed to it being claimed as such.

Clause 10 can only be highly damaging to a child’s personal development and their feelings of security and belonging, with this exclusion and potential alienation being inflicted in their formative years. The noble Lord, Lord Paddick, referred to the serious implications that can have. There has been no assessment made by the Government of the impact this proposal will have on those children affected, which suggests that this issue does not trouble the Government. As my noble friend Lady Lister of Burtersett said, how can this be in the best interests of the child? This issue is addressed in Amendment 31, reflecting a JCHR recommendation.

In the Commons, we supported an amendment to Clause 10 which sought to ensure that the Government act in compliance with Article 1 of the 1961 UN Convention on the Reduction of Statelessness, the Government having failed to protect the existing safeguards, which are in line with international law, in this Bill. The amendment altered Clause 10, so that British citizenship was withheld from a stateless child born in the UK only when a parent’s nationality was available to the child immediately, without any legal or administrative hurdles. That is as per Amendment 30, moved by my noble friend Lord Dubs, which also reflects a JCHR recommendation.

I am probably being overoptimistic in hoping that there will be a positive government reply to this stand part debate. At the very least, if my fears are justified and we do not get a positive reply from our point of view, I hope that we will be told what the hard evidence is that Clause 10 actually addresses a significant wrong, rather than one being claimed as such.

[Baroness Williams of Trafford (Con)]

My Lords, I start by thanking the noble Lord, Lord Dubs, for tabling Amendments 30 and 31 to Clause 10, which requires the Secretary of State to be satisfied that a child aged between five and 17 cannot reasonably acquire another nationality in order to be registered under the stateless child provisions. I also note the opposition to and concerns about this clause of the noble Lords, Lord Paddick and Lord Rosser, should they not be satisfied by my response. In an ideal world, we would not need to include this clause, but current trends mean that we feel we must.

That goes to the question that the noble Lords, Lord Paddick and Lord Rosser, asked about the figures. In 2017, in the case of R v Secretary of State for the Home Department, even though the applicant was eligible for the grant of British citizenship under paragraph 3 of Schedule 2 to the BNA 1981, and despite the fact that they could acquire the nationality of their parents, the judge recognised that his conclusion

“opens an obvious route to abuse”.

The figures bear that out. In 2010 there were five cases; in 2018 they peaked at 1,775. There is obvious evidence that this is happening. I rest my case there.

Clause 10 has been developed in response to concerns that a number of non-settled parents, many of whom did not have permission to be in the UK at the time of their child’s birth, have chosen not to register their child’s birth with their own authorities in order to qualify under the current child statelessness provisions. This in turn can impact on the parents’ immigration status.

Amendment 30 would add a new condition to Clause 10, so that a child is defined as being able to acquire a nationality from birth only if there were no legal or administrative barriers to them doing so. That would mean that the parents I have talked about could, in theory, benefit from the stateless child provisions by not registering their child’s birth. In answer to the point made by the noble Lord, Lord Paddick, it is very easy to register a child’s birth. The parents simply need to complete a form and provide supporting information about their identity, status and residence and the child’s birth. I do not think that is difficult.

I appreciate that the noble Lord’s use of the term “barriers” might have been intended to suggest something more significant and assure him that the clause already reflects our expectation that children who cannot reasonably acquire another nationality should not be excluded. The UNHCR’s document Guidelines on Statelessness no. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness recognises that the responsibility to grant nationality to children who would otherwise be stateless is not engaged where a child could acquire the nationality of a parent through registration or a simple procedure. The genuinely stateless child will not be affected. This is about those who can reasonably acquire another nationality. It is not about the Windrush generation—they are entitled to be British.

We do not think it is fair that parents can effectively secure a quicker route to British citizenship by choosing not to register their child’s birth. In doing so, they are depriving their child of a nationality, which is not only about identity and belonging, as I heard one noble Lord say, but can allow them to acquire a passport or identity document and the ability to travel overseas to see family, for example.

They are also taking advantage of a provision intended to protect those who are genuinely stateless. We want them still to be able to benefit, but we want to change the registration provisions so that parents cannot effectively choose statelessness for their children and then benefit from the provisions. We think it is appropriate that families should take reasonable steps to acquire a nationality for their child. We will set out in guidance the sort of steps that we think are reasonable, and applications will be considered on their individual basis.

Amendment 31 would mean that we could not regard a child as being able to acquire another nationality, and so decline their British citizenship application, if it would not be in the best interests of the child to gain that nationality. Noble Lords have pointed out the value they see in a child being able to secure and acquire a nationality, and it is difficult to see why parents might argue that it is not in their child’s best interests to share their status. We have already taken into account that some countries’ nationalities may be problematic for a child to acquire. The proposed clause reflects our expectation that a parent should not need to try to acquire a nationality for their child if it is not reasonable for them to do so.

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[Lord Paddick (LD)]

My Lords, can the Minister clarify something? She gave us some figures; I did not have a chance to write to them down. She talked about the figures peaking at, I think, somewhere around 1,700 cases. Is that the number of stateless children born in the UK who are granted British citizenship, or are they cases where parents deliberately chose not to register their child’s birth in order to take advantage of the system?

[Baroness Williams of Trafford (Con)]

I assume that it is the latter, but I will write to the noble Lord with the details of the figures I have here. In particular, I will give him more detail about the countries from which these cases derive.

[Baroness Ludford (LD)]

I want to follow up, because the Minister has answered the question I was going to ask. She mentioned that the 1,700 figure—I cannot remember what year it was for—was evidence of abuse, and as she just replied to my noble friend, she is assuming that the parents in those cases could not apply. It seems to me that there is no evidence of abuse. I am thinking of the strengthened safeguards in Amendments 30 and 31, especially Amendment 31. The Home Secretary must be satisfied that “in all the circumstances” it is reasonable, et cetera. The Minister referred to circumstances where parents cannot access the authorities of the relevant state. One can think of dozens of countries around the world in conflict, civil war or whatever chaos. Adding the words

“without any legal or administrative barriers”

would go with the flow of the Home Secretary having to be satisfied that it is reasonable to refuse, and I really cannot see why the Home Office cannot accept Amendment 30, even if it is claiming that Amendment 31 is unnecessary because it already cares about the best interests of the child.

[Baroness Williams of Trafford (Con)]

I shall write to noble Lords about this in more detail, because it is quite detailed, and explain where the figures have derived from. I was actually quoting the judge in his conclusion that an “obvious route to abuse” would be opened. I shall send the figures to the noble Baroness. On case sampling, many of the cases have a poor immigration history, with 79% of the parents having no leave at the time of the birth and only 16% having such leave, but I will outline it to noble Lords in greater detail and they can draw their own conclusion.

[Lord Dubs (Lab)]

My Lords, I have tried to follow the Minister’s reply, and I am bound to say that I too am a little confused about these figures. I think she has just not yet made her case. Please could she give us more information before we get to Report? If not, we will not be persuaded by this. I may not have been quick enough to pick up all the nuances—I do not think any of us were, really; it was quite difficult. I look forward to getting more information from her; we shall have to listen to what she has to say. I am grateful to noble Lords who contributed to the debate, and I beg leave to withdraw the amendment.

Misuse of Drugs Act 1971 (Amendment) Order 2022

Baroness Williams of Trafford Excerpts

Thursday 27th January 2022 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Order laid before the House on 15 December 2021 be approved. Considered in Grand Committee on 25 January.

Motion agreed.

Misuse of Drugs Act 1971 (Amendment) Order 2022

Baroness Williams of Trafford Excerpts

Tuesday 25th January 2022 Grand Committee

Moved by

[Baroness Williams of Trafford]

That the Grand Committee do consider the Misuse of Drugs Act 1971 (Amendment) Order 2022.

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

My Lords, I thank the Advisory Council on the Misuse of Drugs for its advice, which has helped to inform the order for consideration today. The advice, published on 20 November 2020, recommended that three drugs be moved from class C to class B of the Misuse of Drugs Act 1971. The drugs are gamma-Hydroxybutyric acid, which is known as GHB; gamma-Butyrolactone, which is known as GBL; and 1,4-Butanediol, which is known as 1,4-BD. I will refer to them collectively as GHB and related substances, or GHBRS.

The Advisory Council on the Misuse of Drugs recommended that all three substances be controlled under class B of the Misuse of Drugs Act 1971 because of their potential harm and the evidence of the prevalence of these drugs in the UK. GHBRS are central nervous system depressants. They have been used as recreational drugs, but they have also been weaponised to commit drug-facilitated sexual assault and other crimes. Although a misnomer, they are commonly referred to as date-rape drugs.

The Advisory Council on the Misuse of Drugs provided wide-ranging advice on these substances. Prevalence of use increased steadily from 2005 to 2015 and has plateaued since 2015. Gamma-Butyrolactone and 1,4-Butanediol are converted to gamma-Hydroxybutyric acid on ingestion and are therefore similar in effect. There is evidence of an increasing number of deaths associated with GHBRS since the ACMD last considered the harms, including 27 recorded deaths in 2018. It was found that GHBRS can cause profound unconsciousness and that there is a high risk to users of overdose and death. Other severe effects include loss of emotional control, depression, paranoia, anxiety, aggression, and persistent cognitive impairment. There is also very strong evidence of GHBRS being used to facilitate crime, including in high-profile cases. They were used by the serial rapist Reynhard Sinaga, and the murderers Stephen Port and Gerald Matovu, to incapacitate their victims.

Clearly, it is right that we follow the advice of independent experts and tighten control on these substances. Moving them to class B will increase the maximum penalty for unlawful possession from two years’ imprisonment or a fine, or both, to five years’ imprisonment or a fine, or both. This will signal to the public that offences involving these substances are treated seriously and subject to the appropriate penalties, acting as a deterrent for their possession and supply. It will ensure that sufficient punitive measures are available to the courts and will mean that the police place a higher priority on action against offences involving these substances.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I thank both noble Lords for their very constructive points during this debate. The case example that the noble Lord, Lord Ponsonby, gave was very pertinent to how we might approach drug use in society: seeing someone as a user but also as a potential victim. The noble Lord, Lord Paddick, may have told me before his moving story about the tragic consequences of using a drug that, as he said, is not only hard to detect once taken but very difficult to detect post-mortem because of how quickly it clears from the body. If someone is in a slightly confused state, having taken it and forgotten that they have taken it, the danger is compounded. I thank them both very much for those stories. On what further work will be done on post-mortem, which in itself is a difficult thing to determine, I will get more information if I can, but we recognise the difficulty of detecting post-mortem. I assume that people whose intent is criminal exploit those difficulties.

As I said earlier, the ACMD recommended that GHBRS be moved from class C to class B. We hope that reclassification will benefit the public by reflecting our new understanding of the harms of those drugs. Increased penalties for offences under the Misuse of Drugs Act, coupled with the effect of the regulation in restricting supply, are expected to deter and prevent crime, but I take the points of both noble Lords about education. The Government’s drugs strategy is not a simple one of legislation; it is about support, education and moving “from harm to hope”, as the long-term strategy on drugs we have in place is called. That symbolises what the Government are trying to do.

On investment—putting our money where our mouth is—we are investing another £780 million to rebuild drug treatment and recovery services, including for young people and offenders, with new commissioning standards to drive transparency and consistency. Strengthening the evidence base for how best to deter use, ensuring that adults change their behaviour, alongside targeted activity to prevent young people from getting into this lifestyle in the first place, is really important.

The noble Lord, Lord Paddick, said that young people do not pay attention to classification—I totally agree—so how would reclassification meet our ambition in the drugs strategy? We need to take a better approach; I think we have all recognised that. No matter who you are and where you use, you should be encouraged to change your behaviour and to face consequences if you do not. We all know that recreational drug use fuels criminal markets—they thrive on it—which has a terrible impact on those involved in supply and the communities in which it takes place.

The noble Lord also asked me about treatment available to support users of GHB. As I said earlier, there is now significant investment in treatment, which will mean that everyone who needs help with their drug use will be able to get it. Substance misuse commissioners and sexual health commissioners will be supported to work together to improve pathways between services for those who use drugs in a chemsex context, where GHB is of course frequently used, and local authorities will continue to play their role here.

On challenging the Government’s approach to drugs, we are clear that it is anchored in education and effective consequences to reduce demand, tough and intelligent enforcement to restrict supply, and evidence-based treatment to aid recovery and co-ordinated global action. As we know, the problem is a global one.

On discriminatory effects and the groups that are disproportionately affected by tougher penalties, I refer now to the MSM community. The ACMD says in its report that men who have sex with men are the largest user group of GHBRS—I do not think that is disputed. They are often taken in the context of chemsex. The changes in classification and scheduling will disproportionately impact this group. However, the potential benefits of reducing the prevalence and the harms from GHBRS will also benefit the group.

As both noble Lords have said, legislative changes in and of themselves will not act in isolation. We expect to respond shortly to the ACMD’s educational and treatment-based recommendations, which will be delivered by the Office for Health Improvement and Disparities. We hope that this will help to counteract any unintended impact of the reclassification of GHBRS.

I hope that I have answered both noble Lords’ questions. I am sure that if I have not, they will intervene on me. If there are no further points, I commend the regulation to the Committee.

[Lord Paddick (LD)]

I thank the Minister for her comprehensive explanation. I was not suggesting at all that it would be wrong if this change had a disproportionate impact on a particular section of society. My main concern is that, to me, with the knowledge that I have of controlled drugs and the way they are used, I cannot think of anything more dangerous in terms of risk to life than GHB and the related substances. Perhaps the ACMD felt that it could not do two steps at once—in other words, it could not go from class C to Class A, because that might undermine its previous assessment of the drug. As I explained, I understand that the long-term effects of cannabis can be quite damaging to people’s mental health, but there is not the same danger of cannabis being weaponised to commit sexual offences, for it to be used as a murder weapon, as it was in the Stephen Port case, or as an overdose resulting in immediate and sudden death. Yet it is being reclassified as the same class as cannabis when it appears to me, from my experience, to be far more dangerous than cannabis. Does the noble Baroness have anything to say on that point?

[Baroness Williams of Trafford (Con)]

I did not for a moment think that the noble Lord was objecting to the disproportionate effect on certain groups. When the ACMD considers things, it considers them very carefully and keeps them under review. I have tried to outline concern today about the stigma caused by increasing the classification on those who use the drugs, but also the desire to help people with the terrible problems that these drugs can cause. I am sure that it will keep it under review, and the noble Lord may well be right: it may recommend further classification in due course.

Motion agreed.

Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2022

Baroness Williams of Trafford Excerpts

Tuesday 25th January 2022 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Regulations laid before the House on 10 December 2021 be approved. Considered in Grand Committee on 19 January.

Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee

Motion agreed.

Enforcement of Lockdown Regulations

Baroness Williams of Trafford Excerpts

Tuesday 18th January 2022 Lords Chamber

[Baroness Chakrabarti]

To ask Her Majesty’s Government what assessment they have made of the equality of treatment between different groups in respect of the enforcement of lockdown regulations by the police since spring 2020.

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

My Lords, we are clear that nobody should ever be subject to police enforcement based on their race, gender, ethnicity, age or any other protected characteristic. That is why the NPCC—the National Police Chiefs’ Council—has commissioned an independent analysis of fixed penalty notices issued to different demographic groups during the pandemic. The findings from this analysis will be published in due course.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for that, particularly after such a long night. Broad police powers, however well-intended, will inevitably lead to arbitrary and discriminatory enforcement. She makes the point about racial bias and I look forward to the fuller picture. Have the Government now gathered more complete data on differentials in enforcement of lockdown regulations? How much was directed at, say, small family picnics or peaceful protests, as opposed to unsafe places of work?

[Baroness Williams of Trafford (Con)]

As I said to the noble Baroness in my first Answer, there is going to be more analysis of FPNs issued to different demographic groups. The outcome will be very interesting in all sorts of contexts—social and otherwise. Like her, I look forward to the findings from the analysis. In parallel to that, the HAC has published its report, The Macpherson Report: Twenty-two Years On, which raised the same concerns over disproportionality of FPNs.

[Lord Watts (Lab)]

My Lords, when the Prime Minister was holding a series of parties in No. 10, what were the police doing to enforce regulations?

[Baroness Williams of Trafford (Con)]

My Lords, I was not there, I am afraid.

[Lord Young of Cookham (Con)]

My Lords, the ONS has recently published data that shows, after adjusting for age, that men and women of black ethnicity are four times as likely to die from Covid as people of white ethnicity. What steps are the Government taking to identify and then eliminate the causes of this very worrying disparity?

[Baroness Williams of Trafford (Con)]

My Lords, my noble friend asks a pertinent question—that there is a disparity is not disputed. I know that the Ethnicity Subgroup of SAGE has done some work on this, both the year before last and last year. Factors include people’s jobs, and therefore their exposure to risk; household circumstances, such as more people in the house interacting; and financial difficulty in isolating. Vaccine hesitancy is an undoubted factor. The Government are giving financial help with things such as Covid support payments, but I think there is more to be gleaned. On people’s responses to Covid, maybe there is something in the physiology or make-up of different types of people—such as the cytokine storms that we talk about and inflammatory responses—that make them susceptible to more serious illness. I think some of that is yet to be uncovered.

[Baroness Lawrence of Clarendon (Lab)]

My Lords, the sad thing is that any new regulations tend to have more impact on the black community. How will the Government make sure that equality means equality for all groups?

[Baroness Williams of Trafford (Con)]

My Lords, the Government are obliged, when they do anything, to make sure that there is not a disproportionate effect on different communities. That requirement is placed on them under the public sector equality duties set out in Section 149 of the Equality Act and covers decisions with respect to the Government’s response to Covid-19.

[Lord Newby (LD)]

My Lords, I think the whole House is relieved that the noble Baroness has not been present at No. 10 parties, but it is not a general rule that Ministers can answer questions only about events at which they were present. I wonder if she might possibly write to the noble Lord, Lord Watts.

[Baroness Williams of Trafford (Con)]

I think I answered the noble Lord’s question. I was not there; I was not witness to any events that may or may not have happened. As the noble Lord will know—and yes, I do speak for the Government—Sue Gray is doing her review, and the outcome of that will be known in due course.

[Lord Browne of Ladyton (Lab)]

My Lords, on this very point, the question did not require the Minister to have been present to be able to answer it. The question that troubles some people is that the Metropolitan Police has already publicly said that it will not investigate anything but will wait to hear what Sue Gray says and that it is in contact with Sue Gray. The Metropolitan Police has police officers in Downing Street, both inside the building and outside. Surely it is legitimate to ask: are statements being taken from those officers by Sue Gray, and is the Metropolitan Police offering them to Sue Gray’s investigation, seeing as it is not investigating this itself?

[Baroness Williams of Trafford (Con)]

The noble Lord asks a perfectly legitimate question. To that I would say that the police are operationally independent of government, but the review and the investigation will take their course.

[Lord Rosser (Lab)]

Do the Government currently believe that there has been equality of treatment between different groups in respect of the enforcement of lockdown regulations by the police since spring 2020? If the Government do not believe that that has been the case, what action are they taking now to address that point?

[Baroness Williams of Trafford (Con)]

As I said to noble Lords, there clearly has been a disparity, with BAME people more likely to have fixed penalty notices issued to them. As I said, the NPCC is going to analyse that in more depth, and will report in due course.

[Baroness Altmann (Con)]

My Lords, given the differences in health status among the different minority groups in the country, with those in the most deprived areas staying healthy only into their early 50s while those in the wealthiest areas stay healthy until around the age of 70, will any assessment be made of the impact on those required to go out to work—to defy lockdown, perhaps—or to find other sources of support if, for example, they were lacking a private pension to tide them over to the ever-rising state pension age, which we were talking about in the previous Question? Lockdowns impose much more hardship on those in poor health, who have much lower resources. I would be grateful if my noble friend could write if she does not have the answer.

[Baroness Williams of Trafford (Con)]

I might have part of an answer, which I addressed in an earlier question. I do not think there is any doubt that nervousness in isolating because of financial circumstances was both anecdotally a factor and found to be a factor in people not wanting to isolate because they needed the money. I talked about Covid support payments, but I am looking now to my noble friend Lady Stedman-Scott. I admire my noble friend Lady Altmann for linking the previous Question to this one, but I am sure that my noble friend Lady Stedman-Scott will be able to answer in more detail in due course.

Police, Crime, Sentencing and Courts Bill

Baroness Williams of Trafford Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

Moved by

[Baroness Williams of Trafford]

109B: After Clause 55, insert the following new Clause—
“Code of practice relating to non-criminal hate incidents
(1) The Secretary of State may issue a code of practice about the processing by a relevant person of personal data relating to a hate incident.(2) In this section “hate incident” means an incident or alleged incident which involves or is alleged to involve an act by a person (“the alleged perpetrator”) which is perceived by a person other than the alleged perpetrator to be motivated (wholly or partly) by hostility or prejudice towards persons with a particular characteristic.(3) The provision that may be made by a code of practice under this section includes, in particular, provision about—(a) whether and how personal data relating to a hate incident should be recorded;(b) the persons who are to process such personal data;(c) the circumstances in which a data subject should be notified of the processing of such personal data;(d) the retention of such personal data, including the period for which it should be retained and the circumstances in which and the procedures by which that period might be changed;(e) the consideration by a relevant person of requests by the data subject relating to such personal data.(4) But a code of practice under this section must not make provision about—(a) the processing of personal data for the purposes of a criminal investigation, or (b) the processing of personal data relating to the alleged perpetrator of a hate incident at any time after they have been charged with an offence relating to the hate incident.(5) A code of practice under this section may make different provision for different purposes.(6) A relevant person must have regard to the code of practice that is for the time being in force under this section in processing personal data relating to a hate incident.(7) In this section—“data subject” has the meaning given by section 3(5) of the Data Protection Act 2018;“personal data” has the meaning given by section 3(2) of that Act;“processing” has the meaning given by section 3(4) of that Act.(8) In this section “relevant person” means—(a) a member of a police force in England and Wales,(b) a special constable appointed under section 27 of the Police Act 1996,(c) a member of staff appointed by the chief officer of police of a police force in England and Wales,(d) a person designated as a community support volunteer or a policing support volunteer under section 38 of the Police Reform Act 2002,(e) an employee of the Common Council of the City of London who is under the direction and control of a chief officer of police,(f) a constable of the British Transport Police Force,(g) a special constable of the British Transport Police Force appointed under section 25 of the Railways and Transport Safety Act 2003,(h) an employee of the British Transport Police Authority appointed under section 27 of that Act,(i) a person designated as a community support volunteer or a policing support volunteer under section 38 of the Police Reform Act 2002 as applied by section 28 of the Railways and Transport Safety Act 2003, or(j) a National Crime Agency officer.”Member’s explanatory statement
This amendment confers power on the Secretary of State to issue a code of practice about the processing by the police of personal data relating to a hate incident other than for the purposes of a criminal investigation.

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

My Lords, Amendment 109B standing in my name is on the topic of non-crime hate incidents. In my opening remarks, I will also speak to the related government Amendment 109F. I am grateful to my noble friend Lord Moylan for tabling amendments in Committee that related to ensuring that guidance on the recording of non-crime hate incidents, and the retention of personal data in relation to these incidents, was subject to parliamentary oversight.

The Government understand the strength of feeling of many noble Lords on this matter, and I am grateful to all who expressed their views during the debate on this topic on 1 November. Having listened to the compelling arguments, we have tabled Amendments 109B and 109F, which draw strongly from my noble friend’s amendment in Committee. I am very confident that the government amendments reflect the spirit of his proposals in his original amendment and address the House’s concerns in relation to this matter.

I reiterate that the collection of non-crime hate incident data is a key legacy of the Macpherson inquiry into the murder of Stephen Lawrence, and is intended to give the police the means to understand tensions within communities before they escalate into serious harm. This data pertains to incidents which are not crimes. It can include location data, to know where repeat incidents of apparent tension and hostility may occur. In this respect, the data is vital for helping the police to build intelligence to understand where they must target resources to prevent serious crimes which may later occur.

The importance of such intelligence has been illustrated where it could have prevented real harm. The tragic case of Fiona Pilkington and her daughter, subjected to persistent abuse and in which the police failed to draw the links to repeated incidents of harassment until she felt forced to take her own life and the life of her daughter, is one such example. Of course, non-crime hate incidents may also include the collection of personal data. Some of these records will include an accusation of hate crime which has been made against a person but was not proven.

To address concerns relating to the collection of this data, the government amendments will ensure that the police’s processing of personal data in non-crime hate incident records is subject to a code of practice issued by the Home Secretary. The code will be subject to parliamentary scrutiny, with its first iteration being subject to the affirmative procedure, with the negative procedure applying thereafter.

The College of Policing is currently responsible for producing non-statutory hate crime operational guidance for the police to follow when processing data on hate crimes and non-crime hate incidents. The statutory code of practice, once in effect, will replace the relevant section of this guidance on non-crime hate incidents. The college’s guidance will remain in place until the new code enters into effect.

The code will apply only to incidents which the police have designated to be non-crime hate incidents. Where the police are carrying out investigations with a view to there being a prosecution, or where they assess that a prosecution is likely, the code will not apply. It is vital to ensure that the code will not inhibit the police’s abilities to gather evidence that is fundamental to the role of policing. My noble friend’s original amendment included a similar exception. The code will also not apply to data which contains no personal data at all; for instance, location data would not be in scope.

Amendment 109B provides the Secretary of State with the power to issue the code and prescribes some of the key provisions that will be addressed in it. The amendment provides that the code may cover whether personal data relating to a hate incident should be recorded; the persons who are to process such personal data; the circumstances in which a data subject should be notified of the processing of such personal data; the retention of such personal data, including the period for which it should be retained; the circumstances in which, and the procedures by which, that period might be changed; and the consideration by a relevant person of requests by the data subject relating to such personal data. This is not an exhaustive list and it might be expanded or amended during the formulation of the code of practice or in the future.

The precise content of the code of practice will be decided at a later stage. The Government will work closely with policing partners, including the College of Policing and the National Police Chiefs’ Council, when drafting the code to ensure that it meets operational requirements. Decisions relating to existing non-crime hate incident data will also be decided in due course as the process of drafting the new code begins.

We will also ensure that the content of the code fully reflects the recent Court of Appeal judgment in the Harry Miller v College of Policing case that was handed down on 20 December. The court found that the recording of NCHIs is lawful provided there are robust safeguards in place so that the interference with freedom of expression is proportionate. This is a very important point. The court did not consider that the recording of NCHI data was of itself unlawful; rather, it concluded that extra safeguards were necessary to ensure the protection of rights. The approach that the Government are adopting is absolutely in line with that. I can assure the House that this judgment will be reflected in the code.

As I said at the beginning, I am grateful to my noble friend Lord Moylan for bringing this important issue to the Government’s attention. I hope that he will see that the Government have taken these issues very seriously. The government amendments will address a significant number of the concerns raised by bringing parliamentary oversight to this process and enabling the production of a code of practice that will respect the operational importance of the police recording non-crime hate incidents to help keep vulnerable people and communities safe, while balancing this with the need to protect freedom of expression.

My noble friends Lord Moylan and Lord Blencathra have various amendments in this group, including to government Amendment 109B. It would be helpful to hear from them and other noble Lords before I respond. For now, I beg to move.

Amendment 109C

Moved by

--- Later in debate ---

[Lord Moylan (Con)]

Without having myself looked at the wording of the amendment, the original wording, which I think is preserved in the current amendment, would have excluded disclosure in relation to individuals but not in relation to groups. In the context of the original amendment, therefore, I think that point would have been covered. The noble Lord makes a very good point, and if I were pressing the amendment or the Government were intending to take it forward in any way, of course it would need to be reviewed to ensure that his point was properly addressed.

[Baroness Williams of Trafford (Con)]

My Lords, I am grateful to my noble friends for setting out their amendments. I shall respond to them in turn. Amendment 109C seeks to impose a duty on the Home Secretary to issue a code of practice, while our amendment provides her with the power to do so. My noble friend Lord Moylan has pressed me on this issue. I assure the House that we certainly will issue such a code of practice; indeed, Home Office officials will shortly begin the process of drafting the aforementioned code. The permissible language in Amendment 109C is a common drafting approach but, as I have said, it is our firm intention to prepare and issue a code relating to non-crime hate incidents. As I said earlier, I can assure the House that decisions relating to existing non-crime hate incident data will also be made in due course as the process of drafting the new code begins.

My noble friend asked me if the College of Policing would pause the recording of NCHIs, as they are called, while the guidance was being formulated. The current non-statutory guidance on NCHIs will remain in place until the new code of practice enters into effect.

The noble Lord, Lord Ponsonby, asked about the timing of the amendment and when it would come into force. The reason why we have not issued a timescale is that the code will require careful drafting to ensure that it both meets the needs of the police and protects the public. Furthermore, as noble Lords will know, the Court of Appeal has only recently handed down its judgment in the Miller case and the code will have to account for that ruling. We do not wish to impose unduly restrictive timeframes on the process of drafting and publishing a code that will fully align with these objectives.

My noble friend has suggested, previously and again today, that a unit of some description could be set up to provide advice to police forces on whether specific incidents should be investigated by the police force as non-crime hate incidents. That suggestion requires further consideration, and I will try to give it my full consideration in due course.

My noble friend Lord Blencathra raised concerns that the amendments provide that the first iteration of the code is subject to the affirmative procedure, with the negative procedure applying thereafter. This point has been raised by the Delegated Powers and Regulatory Reform Committee, which he chairs so ably; I am sorry that he will be stepping down. We take the committee’s views very seriously. I will set out why we have adopted this approach.

As I have already indicated, in framing the code, we need to ensure that we have given effect to the ruling by the Court of Appeal in the Miller case. By ensuring that the first iteration is subject to the affirmative procedure, we are enabling both Houses expressly to approve the code, thus ensuring that this House can confirm that it is content that the code reflects that judgment.

It is appropriate that further iterations of the code are then subject to the negative procedure. We do not think there will be any further major rulings on the topic of non-crime hate incidents. Any further changes will thus simply reflect the routine need periodically to review such guidance. It would be disproportionate to require the affirmative procedure for every dot and comma change in further future iterations; indeed, the fundamental premise of the code will already have been expressly agreed by Parliament. We therefore do not believe that the affirmative procedure for future iterations would be an effective or necessary use of parliamentary time. I also confirm to my noble friend that we will respond to the DPRRC shortly.

Amendment 109E seeks to incorporate a specific reference to the importance of the right to freedom of expression within the list of matters that may be addressed in the code. When discharging her functions, including preparing this new code of practice, the Home Secretary must already act in compatibility with convention rights; a number of noble Lords rightly asked about this. That includes Article 10, which ensures a right to freedom of expression. It is therefore not necessary to include a reference to the importance of the right to freedom of expression, because this is already a given under the Human Rights Act. None the less, I assure noble Lords that the code will address issues around freedom of expression. Indeed, in my opening remarks, I noted that we will ensure that the content of the code fully reflects the recent Court of Appeal judgment in the Miller case.

Finally, Amendment 114E would prohibit the disclosure of non-crime hate incident personal data on an enhanced criminal record certificate. I cannot support such a blanket prohibition. The noble Lord, Lord Ponsonby, illustrated one of the reasons why. First, non-crime hate incidents are simply one form of police intelligence that sit alongside many others—missing persons data, evidence of anti-social behaviour, unproven allegations of sexual assault and perhaps domestic abuse. They exist in line with the police’s common-law powers to prevent crime and keep the Queen’s peace. There are rightfully circumstances in which police non-conviction information of various kinds will be considered for disclosure in enhanced checks which are used in relation to roles involving close working with vulnerable adults or children. Maintaining this regime is essential for safeguarding purposes.

Secondly, the rules surrounding disclosure of this type of data are already governed by the statutory disclosure guidance produced by the Home Office. The third edition of this guidance came into force on 16 November last year. Non-crime hate incident intelligence is not an exceptional form of police intelligence; it is simply a type of non-crime incident data collected by the police to prevent crime. That is why it is covered in the same statutory guidance. The statutory disclosure guidance has been tested by the courts and assists chief officers of police in making fair, proportionate and consistent decisions in determining when local police information should be included in enhanced criminal record certificates. Singling out this category of police data for non-disclosure would be inconsistent with the principles set out in the statutory guidance and, as such, unnecessary and disproportionate.

[Lord Moylan (Con)]

My Lords, does my noble friend agree that, since the guidance was published before the Court of Appeal decision, the guidance on disclosure should at least be reviewed in the light of the court decision and the reference to “chilling effect”, to ensure that it is fully compatible? Since that was so much part of the debate in the Court of Appeal—not simply recording but also disclosure—would it not make sense to review it?

[Baroness Williams of Trafford (Con)]

My noble friend has jumped the gun on what I was going to say. We are confident that the statutory disclosure guidance, the latest version of which was published on 16 November, sets out clearly the criteria and principles which chief officers must have regard to in making decisions to disclose non-conviction information.

The safeguards in the statutory disclosure guidance are very robust. Should a chief officer consider that information ought to be disclosed in line with the guidance, the applicant is invited to make representations. Should the decision to disclose be confirmed following any representations given, that information will be included on the certificate that is sent to the applicant only. Importantly, the applicant also has a right to appeal that disclosure through the independent monitor, who considers cases where an individual believes that the information disclosed within an enhanced criminal records certificate is either not relevant to the workforce they are applying for or that it ought not to be disclosed.

[Baroness Fox of Buckley (Non-Afl)]

A question was asked earlier about what will happen to people who already have their information—what can we do about that? It is important that drafting takes time; in Committee I spoke about the problem of the drafting of these guidelines and said I wanted good drafting. But I was a bit concerned, as the Minister said that free speech is already protected by the Human Rights Act, but that does not console me because free speech is under attack. We have heard of many instances of where non-crime hate incidents are being used to chill free speech and this—

[Baroness Fox of Buckley (Non-Afl)]

I did not understand that, and I apologise. The guidelines are reputation destroying and they need to be reviewed.

[Baroness Williams of Trafford (Con)]

On Report, questions and interventions are generally for points of elucidation and the Back-Bencher will have spoken before the Minister. That aside, in terms of what happens to historic cases, I think that will be determined upon the updating of the guidance. I will write to noble Lords as I think it is an important point as there may be many examples of it. I will write to the noble Baroness and put a copy in the Library because it is an important point of clarification.

Getting back to what I was saying about the safeguards, it is important that they balance the rights of job applicants with those of the vulnerable people they might have contact with. This goes back again to the point made by the noble Lord, Lord Ponsonby. Alongside the existence of this strict statutory disclosure guidance, I can reassure noble Lords further. As I mentioned in the previous debate, DBS records suggest that, in any event, it is rare for non-crime police information of any sort to appear on an enhanced criminal records certificate supplied to a potential employer. This type of information featured in only 0.1% of the 3.9 million enhanced checks issued by the DBS between April 2019 and March 2020.

My noble friend has also, helpfully, raised with me before today whether the government amendment may encompass disclosure within its remit by referring to the processing of data. While the Home Secretary’s code will set out the rules for those who process NCHI data, there is no obligation for the code to address every conceivable act of processing. We have been clear that the Government’s intention is to not include disclosure within the code of practice; as such, the issue of disclosure will not be covered or referenced in any way in the code of practice.

It is imperative that we do not set an unhelpful precedent by legislating in such a way as to undermine the police’s ability to build intelligence on possible offending and risk to life more broadly. I stress again the often vital role that this data plays in helping to safeguard the vulnerable. It is not there to enforce correct opinions—referred to by the noble Baroness, Lady Fox—nor is it there to serve a purpose unconnected with policing; rather, it is part of the police’s function to prevent crime.

In conclusion, again, I am most grateful to my noble friend Lord Moylan for raising these important issues. I hope that he can see that the Government have taken him very seriously; the government amendments, together with the assurances that I have given in response to Amendments 109C and 109E, will, I think, address the concerns raised, by bringing parliamentary oversight to this process while protecting fundamental police functions that are already subject to strong safeguards. I hope, therefore, that he will see fit not to press his amendment—he has indicated that he will not—and that he will support the government amendments as drafted. I beg to move.

[Lord Moylan (Con)]

I am grateful to my noble friend, and for her reassurances, and I look forward to seeing the letter that she is going to write to the noble Baroness, Lady Fox of Buckley. I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

109F: After Clause 55, insert the following new Clause—
“Further provision about a code of practice under section (Code of practice relating to non-criminal hate incidents)
(1) The Secretary of State may not issue a code of practice under section (Code of practice relating to non-criminal hate incidents) unless a draft of the code has been laid before and approved by a resolution of each House of Parliament.(2) The Secretary of State may from time to time revise and reissue a code of practice under section (Code of practice relating to non-criminal hate incidents).(3) Before reissuing a code of practice the Secretary of State must lay a draft of the code as proposed to be reissued before Parliament.(4) If, within the 40-day period, either House of Parliament resolves not to approve the code of practice laid under subsection (3)—(a) the code is not to be reissued, and(b) the Secretary of State may prepare another code.(5) If no such resolution is passed within the 40-day period, the Secretary of State may reissue the code of practice.(6) In this section “the 40-day period” means—(a) the period of 40 days beginning with the day on which the draft is laid before Parliament, or (b) if the draft is not laid before each House on the same day, the period of 40 days beginning with the later of the days on which it is laid before Parliament.(7) In calculating the 40-day period no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses of Parliament are adjourned for more than 4 days.”Member’s explanatory statement
This amendment makes provision about the Parliamentary procedure applying to a code of practice issued by the Secretary of State under the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and dealing with codes of practice relating to non-criminal hate incidents.

--- Later in debate ---

[Lord Sentamu (CB)]

My Lords, in the Stephen Lawrence inquiry, one of the challenges we faced was that the police were investigating the police—they were marking their own homework. Although Kent Police did a fantastic job, nevertheless there were areas where they could not quite press hard enough. They were very good in what they did, but it was not adequate, and therefore we proposed in the Stephen Lawrence inquiry that, whenever there is an incident, it should be investigated by an independent body.

This amendment would enhance that on the whole question of duty of candour. Again, during that inquiry we were given all the papers. There was no hidden stuff, so for that I must again congratulate the Met. However, this amendment is vital in order to support independent police inquiries, whenever there are areas of great concern. I hope nobody sees this as either intrusive or doubting that most of our police forces really want to do the best for their communities and places. Nevertheless, a duty of candour would impose a very good way of saying what concerns some people about the police, so I support the amendment.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Lords, Lord Rosser and Lord Paddick, for affording us this further opportunity to debate the case for a statutory duty of candour. They have rightly highlighted the importance of the police’s openness and transparency, which is a very serious matter. It is at the heart of public confidence in policing and ensures that the police are held to the highest standards; this is crucial to maintaining that confidence.

As I did in Committee, I start by highlighting the extensive work that has already been done and is ongoing to improve integrity and openness in policing. Back in February 2020, we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020 and, in so doing, has the force of law. It is worth quoting in full the relevant paragraph:

“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness.”


A failure to co-operate in this way constitutes a breach of the statutory standards of professional behaviour, by which all officers must abide, and could therefore result in a formal disciplinary sanction. I put it to the House at this point that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in this amendment, as they could ultimately be dismissed for a breach.

The duty to co-operate has been introduced since the issues that were highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel, which were later highlighted in its report. We are keen that this duty becomes fully embedded within the police workforce. The recently announced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a further test of this duty.

In addition to the standards of professional behaviour, the College of Policing’s code of ethics delivers a set of policing principles and ensures that ethics are at the centre of all policing decisions. The college is currently reviewing the code and intends to further promote a policing culture of openness and accountability. The Government are confident that the work of the college will ensure that candour is directly addressed through this review.

Noble Lords will be aware that a response to the Daniel Morgan Independent Panel and Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public authorities. Before the Government respond to these reports, it is clearly imperative that the Hillsborough families are given the opportunity to share their views. We hope that this happens as soon as is practicable.

Bishop James’s report also encouraged public bodies to sign the proposed charter for bereaved families. This has now been signed by the NPCC, on behalf of police forces, so that the perspective of the bereaved families is never lost. The charter commits forces to acting with candour, and in an open, honest, and transparent way, when facing public scrutiny, for example through public inquiries.

Regarding the point made by the noble Lord, Lord Paddick, the decision on disciplinary action is not just for forces. Of course, the IOPC can also call it in.

In conclusion, we believe that the existing legislation requiring officers to co-operate already amounts to a duty of candour, and this is complemented by the further commitments that policing has made to transparency and openness. That being the case—

[Baroness O'Loan (CB)]

The Minister has described a duty of co-operation, which is not the same as the duty described by the noble Lord, Lord Paddick, and others, in the amendment. It is not fair to explain that they are the same and that a duty of co-operation goes further than a duty of candour. They are two different duties and the obligation to comply with charters and standards is very different from the obligation to comply with the statutory duty.

[Baroness Williams of Trafford (Con)]

I was making the point that, in some ways, the duty of co-operation goes further because of the sanctions afforded to it, though I know that the noble Baroness, Lady O’Loan, for whom I have the greatest respect, disagrees with me.

Regarding an officer resigning or retiring, if he or she is found to have committed gross misconduct, the chair of proceedings can decide that they would have been dismissed if they had not already left the force, so leaving the force is no longer a way out, since this automatically places the officer on the College of Policing’s barred list, preventing them from working in policing again.

I know that the noble Baroness does not agree, but I hope that the noble Lord will withdraw the amendment, although I am not sure that he will.

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[Baroness Williams of Trafford (Con)]

My Lords, I join others in paying tribute to the noble Lord, Lord Russell of Liverpool, and his ongoing determination on this subject. The noble Baroness, Lady Royall, must also be commended as she not only educated me on the whole subject, way back when, but has shown that same tenacity—ditto the noble Baroness, Lady Brinton, who regularly shares her story with us. I join the noble Baroness, Lady Royall, in commending John Clough and others for their untiring campaigning on this. I have met John Clough; he is a truly wonderful man.

I totally get the sentiment of what the noble Baroness, Lady Royall, and the noble Lord, Lord Russell of Liverpool, are saying. He and I spoke earlier; we reflected on the journey we have come on, since I got into your Lordships’ House almost 10 years ago, in terms of the perception and awareness of and attitudes towards domestic violence, domestic abuse and stalking. While domestic abuse was certainly on the radar, there was a clunking attitude towards dealing with it; stalking is one step behind it, but to say we have gone backwards is just not the case—we have made great progress. However, I acknowledge—I think he sees this—that we have further to go, particularly in training on stalking and domestic abuse. It is a most dreadful crime; the impact on victims can be so dreadful.

I talked at length in Committee about the many actions to address stalking that we are taking through the tackling violence against women and girls strategy. I will not go through them all again, but the Government are totally committed to protecting and supporting the victims of stalking. We are determined to do everything we can to stop perpetrators at the earliest opportunity. On the point of the noble Lord, Lord Russell, that the VAWG strategy does not deal with male victims, I say that it makes it clear that, while the term “violence against women and girls” is used throughout the document, it refers to all victims of the relevant offences, including stalking. I am glad he raised that, as it allows me to clarify it.

The noble Lord also brought up the point that stalking is not only an awful crime but a very complex and multifaceted one. We talked about that earlier as well—the resentful stalker who may go after politicians, the intimacy-seeking stalker, the incompetent stalker and the predatory stalker. They come in all forms. As he said, many are not former partners of their victims, including so-called intimacy seekers and predatory stalkers. Within each category, there is a wide range of different types of stalking behaviour. Therefore, the Government totally acknowledge that the police need to be well informed about the many characteristics of stalking and the stalker to effectively investigate stalking cases. He can rest assured—I know he does—that it is a priority for the Government. I empathise with the aim of this amendment, but it is important to acknowledge the progress that is being made in the work we are doing.

It is vital that the police are provided with the correct materials and training to deal with stalking cases appropriately. That is why, in 2019, the College of Policing released a set of new advice products on stalking for police first responders, call handlers and investigators. These make clear, for example—I say this in response to my noble and learned friend Lord Mackay of Clashfern—the key differences between stalking and harassment. A range of advice and guidance products has been published by the College of Policing for forces to deliver locally to help responders to investigate stalking effectively, understand risks and respond appropriately to stalking cases. I know that training is also available to the police from providers in the charitable and private sectors. The noble Lord, Lord Russell of Liverpool, and I talked earlier about the work of the Suzy Lamplugh Trust, which runs the National Stalking Helpline and has been piloting a new training course for police called “Stalking Matters”.

Within Her Majesty’s Prison and Probation Service, all new probation staff and prison offender managers are required to complete mandatory domestic abuse awareness online learning, which includes a specific module on stalking. The module has recently been updated and rewritten, based on current research, by subject matter and academic experts within HM Prison and Probation Service. A process map has been developed to set out a consistent approach to working with stalking in the probation service, which provides links to relevant support and guidance documents, as well as learning that staff can complete. Furthermore, the stalking practitioner guidance is being finalised; this aims to raise awareness of the nature of, and various risks associated with, stalking. It will also direct practitioners to the support that is available within HM Prison and Probation Service when working with perpetrators of stalking.

When we had an opportunity to speak earlier, the noble Lord, Lord Russell of Liverpool, and I talked about the complexity involved; while the report from Maggie Blyth was excellent, there is complexity in practitioner understanding. I will take that away and we can perhaps discuss it further; there is no point having these things if they are not readily and easily understandable.

I now come to training within the CPS. E-learning modules are available to prosecutors; these cover the stalking and harassment offences, with emphasis on building a strong case, working closely with the police and engaging with victims throughout the legal process. Alongside the online course, elements of stalking and harassment are also covered in tutor-led mandatory training on proactive disclosure and hate crime. This training supports the Crown Prosecution Service’s legal guidance on stalking and harassment and restraining orders, the joint stalking and harassment protocol, and the associated checklist that must be used by police and prosecutors to ensure that they are taking the correct action in stalking cases.

The noble Baroness, Lady Royall, talked about police resources. She will know that we have a substantial police settlement for 2022-23 but her underlying point, I think, is that we have to put it to good use, and that the Government’s priorities need to be reflected in the work that the police do. She and the noble Lord, Lord Russell, also talked about the importance of data, the monitoring of ongoing work and Parliament’s duty to hold the Government to account on the policies that they make.

Of course, the police, the CPS and the probation service are operationally independent of government. The noble Lord, Lord Russell, and I discussed earlier the issue of mandating what training they should receive, especially, as I have just set out, when there is so much good work happening already. There is always more to do, but I do not think that the mandating of training is the best way of doing this, given the good work that is going on. There is also a very real risk that, if we were to legislate for one crime type, it might then suggest to law enforcement agencies that it should be prioritised over others. I know that that is not what the noble Lord and the noble Baroness seek. Appropriate training for criminal justice system professionals on tackling stalking is vital, but so too is training on tackling domestic abuse, sexual offences and other crime types. We do not regard these as less important; neither, I know, do the noble Lord or the noble Baroness.

In acknowledging and empathising with the sentiment behind the amendment put forward by the noble Lord, I assure him that the training provided to professionals working with the criminal justice system on stalking is robust and helps to address issues such as early identification of stalking cases—but I also acknowledge that there is more work to be done. I hope that the noble Lord will be content to withdraw his amendment in the knowledge that I have addressed his concerns as far as I can, and acknowledging the work that has been done. I know that we will come back to these matters at a future occasion.

[Lord Russell of Liverpool (CB)]

My Lords, I thank the Minister very much for what she said. As usual, she has been thorough and comprehensive. She said what I would have expected her to say, and I thank her for that. I understand that there is a certain point beyond which she is unable to go; I will come back to that in a minute.

I thank the noble Baroness, Lady Brinton, for reminding us—and me—that stalking affects a very large number of men, as well as women. It is easy to forget that, as there has been so much focus on violence against women and girls. The noble Baroness, Lady Royall, reminded us that we are at about our 10-year anniversary of trying to get Her Majesty’s Government to focus on this and acknowledge that it will not go away. As the noble and learned Lord, Lord Mackay, said, it ain’t getting better, it is getting worse, and we do not completely understand why this is so badly the case.

The noble Lord, Lord Paddick, was able to remind us from his own experience that guidance is not enough, in and of itself. The noble Baroness, Lady Newlove, reminded us of the role of champions such as Laura Richards, and others, who have been speaking up very effectively for the many victims—giving them a voice, trying to make us understand how they feel and what they have gone through. As she said, stalking is insidious. I suspect that, by the law of averages, we all probably know somebody who has been stalked, albeit that it is probably not a subject that we would readily raise around the dinner table. I suspect that, if we spoke to such people who we know—if they were prepared to open up about what their experience was like—and listened to them and watched the look in their eyes as they spoke about it, it would be pretty wrenching; that is the reality of it.

The noble and learned Lord, Lord Mackay, made a very good point about the judiciary, with which I absolutely agree; the judiciary needs training just as much as the rest of us. However, for the judiciary to be able to exercise its duties properly, it is incredibly important that among all the different bodies charged with identifying when a case of stalking is serious enough to become the subject of a prosecution, the way that this is pursued and the case is put together, by people who know what they are doing, is as watertight as it is humanly possible to be. However well intended and well trained, if a judge is faced with a prosecution case that, frankly, is not watertight, then, however strongly he or she may feel that an injustice is being done, if the case being put forward is inadequate, the law must follow its duty, possibly deciding not in favour of the victim—and it would not be the victim’s fault. That is the essence of what we are trying to avoid; it is going on and it will continue to go on until we really grasp it.

I will not detain your Lordships. I had hoped that we would do this in 30 minutes, but we will do it in under 45 minutes. I thank the Minister again for what she said, and the noble Lord, Lord Coaker. There is a huge focus on the inputs in many of these interactions from the Front Bench: there is a long list of money for this, an initiative for that, this service having this and that service having that. To come back to the issue of data, in the future I would like to hear less about inputs and more about outputs. We need the evidence that these input are actually working and making a difference. I know we will come back to this subject, but I genuinely believe that, until and unless all the different bodies dealing with these distraught victims, who come to the police perhaps after 100 instances of insidious stalking, are equipped with the knowledge and experience they need to really grab hold of it and give victims some justice, it will continue to haunt us and, indeed, stalk us. I beg leave to withdraw the amendment.

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[Lord Coaker (Lab)]

My Lords, we strongly support the amendment in the names of the noble Baroness, Lady Newlove, the noble Lord, Lord Russell of Liverpool, and my noble friend Lord Ponsonby of Shulbrede. We strongly support the amendment because, as my noble friend Lady Kennedy pointed out, misogyny sits behind much harassment and intimidating behaviour that, unfortunately, many women experience as a reality every day in our communities. It fuels behaviour that, far too often, escalates into serious offences. We have to repeat, again and again, that violence against women and girls does not occur in a vacuum.

I agree very much with what the noble Baroness, Lady Warwick, was alluding to and am proud of my own local police in Nottinghamshire, who have been leaders in this area, as the noble Baroness, Lady Newlove, pointed out. It was the first force, in 2016, to record misogyny as a hate crime. I can tell the Chamber that it made a very real difference in Nottinghamshire when the chief constable, Sue Fish, stood up and said she was going to make it a priority for her officers. It spoke to her officers in terms of how they dealt with it, but it also spoke to the women and girls, and indeed the men of Nottinghamshire, about the priority that was going to be given. It made a very real difference and continues to do so. Sue Fish should be congratulated on being the leader that she was and is.

This campaign to recognise misogyny as an aggravating factor in the same way that we recognise hostility against a person due to disability, race or other characteristics has been running for years. Now is the time for all of us to show some leadership, to close the gap in our law and to state clearly that we do not accept the status quo and that things must change. There is much support for this change and the Government should take this opportunity, an opportunity that exists for us now and that we should take.

[Baroness Williams of Trafford (Con)]

My Lords, I was quite pleased to hear noble Lords saying that your Lordships’ House should curtail debate this evening: I have never experienced it in all my time as a Minister.

I start by thanking my noble friend Lady Newlove and the noble Lords, Lord Russell of Liverpool and Lord Ponsonby, for this amendment. It speaks to their continued commitment to tackling violence against women and girls and I know they have campaigned tirelessly on this issue. Given their sincerity and their deep and obvious desire to do what is best in this sphere, I am saddened that I am not going to give them much comfort on this amendment, and I shall explain why.

As noble Lords may be aware, last month the Law Commission published its final report, Hate Crime Laws. It is a weighty tome—some 545 pages—and, as always with the Law Commission, it is a thoughtful and well-argued document that warrants very close reading. On behalf of the Government, I thank the Law Commission for the thorough and intelligent way in which it approached the task that it was given. I assure noble Lords that the Government will give all the recommendations, of which there are 34, very detailed consideration. As is customary, a full government response will be published in due course; it will address each of the recommendations and I do not want to pre-empt that process.

However, ahead of that I should just draw noble Lords’ attention to what the Law Commission said on the specific issue which Amendment 114F addresses; namely, adding sex and gender to hate crime laws or, in common parlance, “making misogyny a hate crime”. In its report, the Law Commission was unequivocal that the course of action represented by this amendment would not be appropriate, as it would potentially prove detrimental to women and girls. Indeed, it noted that to add these characteristics to the hate crime legislative framework

“may prove more harmful than helpful”

and would be

“the wrong solution to a very real problem.”

I add that transgender identity is already covered in hate crime laws.

In coming to the conclusion it did, the Law Commission applied its usual rigour, dedicating almost three years of thought and careful deliberation to its work. It did so by examining, in exhaustive fashion, whether any legal models would be appropriate to making misogyny a hate crime. It did so on the premise that

“violence against women and girls is extremely prevalent and harmful”,

as noble Lords have said—eliminating all doubt, if there was any, that it did not in good faith stretch every sinew to find an appropriate solution through the hate crime framework. Finally, it did so while listening to and acknowledging the voices of many practitioners who are dedicated to tackling violence against women and girls before making its recommendations, independent of government or political considerations. In this regard, there are few greater examples of what might be called evidence-based policy-making.

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[Lord Paddick (LD)]

My Lords, I remind noble Lords that this group includes 26 amendments, and that noble Lords are entitled to speak only once on each group, in case people were thinking of having another go. I cannot possibly speak on all 26 amendments; if I spent only one minute on each, I would be here for 26 minutes. But we on these Benches oppose all the measures in Part 3 of the Bill, including the new government amendments introduced late at night in Committee. We will come to those in a later group.

I am a former senior police officer and part of a small, specially selected group of senior police officers trained in the policing of protests. My view, and the view of the majority of police officers interviewed by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, contrary to what the noble Baroness, Lady Neville-Rolfe, has just said, is that the limiting factor in the policing of protests on the police’s ability to control protests is the number of suitably trained police officers available, not a lack of police powers or legislation.

Not only are new powers and new offences unnecessary but there is a very real danger of dragging the police into political decisions on which protests should go ahead and which should not, as the noble Baroness, Lady Fox of Buckley, has just said. There is a very real danger of more scenes like those we saw at the Sarah Everard vigil on Clapham Common happening with greater frequency. There is a real danger of more and more police officers being drawn into policing protests to enforce more and more restrictions and bans, taking them away from policing their communities and, as a result, further undermining trust and confidence in the police and their ability to enforce the law.

I spoke at length in Committee and do not intend to repeat myself. I refer noble Lords to the Official Report. We support all the non-government amendments in this group. Particularly, we do not agree that protests should be banned because the police think they might be too noisy—so we will be voting in support of Amendment 115.

We agree with the former Conservative Home Secretary who led on the original public order legislation in 1986 that the police should not be able to dictate where and when public meetings or assemblies should take place or to ban them completely. To quote Lord Hurd of Westwell,

“that would be an excessive limit on the right of assembly and freedom of speech.”—[Official Report, Commons, 13/1/1986; col. 797.]

The Minister may say that the provisions simply bring limitations on assemblies into line with the limitations on processions, but I ask what has changed. It is still an excessive limit on the right of assembly and freedom of speech. I will therefore be testing the opinion of the House on Amendment 132. These measures are an outrageous limitation of people’s fundamental right in a democracy, and we oppose them.

[Baroness Williams of Trafford (Con)]

My Lords, I start by quoting the right reverend Prelate the Bishop of Bristol, who said that good debate relies on good listening. I hope that noble Lords will listen, as they did in the previous group, to what I have to say.

My noble friend Lord Deben and the noble Lords, Lord Hain and Lord Coaker, were all in agreement that many of them would have been in breach of these provisions in protests that they took part in. No. I disagree with that; the police rarely impose conditions on a protest, and we expect that to continue to be the case.

I thought the noble Lord, Lord Walney, made some compelling arguments about how lucky we are to live in a democracy and how much we value protest—we can hear the drumbeats outside, which no one is going to stop. To answer the right reverend Prelate the Bishop of Leeds, the provisions are not new today; they have been in the Bill from the start.

The government amendments give effect to the recommendations made by both the DPRRC and the Constitution Committee. Under the Public Order Act 1986 as amended by the Bill, the police may attach certain conditions to a public procession, public assembly or one-person protest, including where that is necessary to prevent serious disruption. The Bill enables the Secretary of State to define the meaning of “serious disruption” in regulations, and we have published an indicative draft of such regulations.

However, both the DPRRC and the Constitution Committee argued that definitions should be in the Bill, although the DPRRC agreed that there should be a power to amend the definition by regulations subject to the affirmative procedure. The government amendments therefore take the definitions as set out in the draft regulations and write them into the Public Order Act. Again, I express my thanks to my noble friend Lord Blencathra—although I do not see him in his place—the noble Baroness, Lady Taylor of Bolton, and the other members of the DPRRC and the Constitution Committee for their scrutiny of the Bill. I trust that the amendments will be acceptable to them and indeed to the House as a whole. The word “significant” is lifted from the draft regulations that the Constitution Committee said were not unreasonable.

Amendment 115, in the name of the noble Lord, Lord Rosser, would remove the new noise triggers for the police to impose conditions on public processions. Amendments 123, 124, 125 and 147 would collectively do the same for public assemblies and single-person protests. In response to those amendments, I reiterate to the House that noise generated by protesters can have a significant and detrimental impact on the wider public. It is unacceptable, as my noble friend Lord Hailsham says, that certain protests can seriously disrupt the lives of ordinary people.

It is absolutely right that the Government give the police the tools that they require to tackle disruptive protests. As the noble Lord, Lord Hogan-Howe, stated during the debate in Committee on these measures,

“noise can be more than an irritant.”—[Official Report, 24/11/21; col. 944.]

In some contexts, it can be tortuous, and it is important to contextualise the different situations in which it can happen, such as the time of day or where it takes place. Is it outside an old people’s home, or is it in Parliament Square? Is it anti-vaxxers outside a school, or in St Ann’s Square in Manchester?

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Moved by

[Baroness Williams of Trafford]

116: In place of the words last left out insert “(2) After subsection (2) insert—“(2ZA) For the purposes of subsection (1)(a), the cases in which a public procession in England and Wales may result in serious disruption to the life of the community include, in particular, where—(a) it may result in a significant delay to the delivery of a time-sensitive product to consumers of that product, or(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—(i) the supply of money, food, water, energy or fuel,(ii) a system of communication,(iii) a place of worship,(iv) a transport facility,(v) an educational institution, or(vi) a service relating to health.(2ZB) In subsection (2ZA)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.(2ZC) For the purposes of subsection (1)(aa), the cases in which the noise generated by persons taking part in a public procession may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the procession include, in particular, where it may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them.”Member’s explanatory statement
This amendment replaces the power for the Secretary of State to make regulations about the meaning of serious disruption for the purposes of section 12 of the Public Order Act 1986 with provisions on the face of the Bill, subject to a power to amend these provisions.

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Moved by

[Baroness Williams of Trafford]

126: Clause 57, page 50, line 32, at end insert—
“(2ZA) For the purposes of subsection (1)(a), the cases in which a public assembly in England and Wales may result in serious disruption to the life of the community include, in particular, where—(a) it may result in a significant delay to the supply of a time-sensitive product to consumers of that product, or(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to— (i) the supply of money, food, water, energy or fuel,(ii) a system of communication,(iii) a place of worship,(iv) a transport facility,(v) an educational institution, or(vi) a service relating to health.(2ZB) In subsection (2ZA)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.(2ZC) For the purposes of subsection (1)(aa), the cases in which the noise generated by persons taking part in a public assembly may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly include, in particular, where it may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them.”Member’s explanatory statement
This amendment replaces the power for the Secretary of State to make regulations about the meaning of serious disruption for the purposes of section 14 of the Public Order Act 1986 with provisions on the face of the Bill, subject to a power to amend these provisions.

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[Lord Rosser (Lab)]

My Lords, my name is also added to the amendment in the name of the noble Viscount, Lord Colville of Culross, which he moved so eloquently and comprehensively. I really do not want to take up any more of the House’s time, but simply say that we support this amendment and what was said by him, the noble Baroness, Lady Altmann, and the noble Lord, Lord Paddick. If the noble Viscount is not happy with the response he gets and decides to test the opinion of the House, we will support him in the vote.

[Baroness Williams of Trafford (Con)]

My Lords, these amendments relate to Clauses 59 and 60, which ensure—as was originally proposed by the right honourable Harriet Harman, as chair of the JCHR, to whom we send our deepest sympathies—that vehicular access to the Parliamentary Estate is not prevented by protests or other activity; and Clause 61, which restates the common-law offence of public nuisance in statute.

I begin with Amendments 133A and 133B in the name of the noble Viscount, Lord Colville of Culross, which I was able to discuss with him and Dominic Grieve last week. They seek to avoid a perceived outcome of Clause 59 that the Greater London Authority will no longer authorise large-scale assemblies on Parliament Square, due to the risk that such assemblies could obstruct vehicles entering or exiting the controlled area around Parliament.

I am most grateful to the noble Viscount for meeting me last week to raise his concerns about Clause 59. I understand that he is concerned that this clause may have the unintended consequences that the Greater London Authority, which is responsible for Parliament Square Garden, would no longer be able to authorise assemblies in the garden if they risk blocking vehicular access to the Parliamentary Estate. I reassure him tonight, as I did the other day, that this is not the case.

The GLA’s by-laws for Parliament Square Garden require that written permission is granted for certain acts to be conducted in the garden; organising or taking part in an assembly is one of those acts. It is important to note that this by-law applies to the garden itself and does not extend to Carriage Gates, nor the road around the garden. The by-laws state that permission will not be given in respect of any matter defined as a “prohibited activity” under Section 143 of the Police Reform and Social Responsibility Act 2011. Clause 59 amends this section to include obstructing the passage of a vehicle into or out of an entrance or exit to the Parliamentary Estate as a prohibited activity.

In practice, this means that the GLA could not permit an assembly in Parliament Square Garden if its stated and primary aim is to obstruct vehicular passage in and out of Parliament. However, nothing in Clause 59 means that permission could not still be granted for any other assembly, even if that risks some individuals in attendance obstructing vehicles entering and exiting Parliament. This is the point I was trying to impress the other day.

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Moved by

[Baroness Williams of Trafford]

136: Clause 61, page 55, line 33, leave out “causes” and insert “creates a risk of, or causes,”
Member’s explanatory statement
This amendment and the amendment in the name of Baroness Williams of Trafford at page 53, line 40 make it clear that one element of the new offence of public nuisance requires a person’s act or omission to create a risk of, or to cause, serious harm as defined in clause 60(2) to the public or a section of the public.

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Moved by

[Baroness Williams of Trafford]

138: Clause 61, page 56, line 23, leave out “any act or omission within subsection (1)” and insert “the tort of public nuisance”
Member’s explanatory statement
This amendment amends Clause 60 to clarify that the Clause does not affect the civil liability of any person for the tort of public nuisance. The tort currently tracks the common law offence and this amendment makes it clear that the replacement of the offence does not affect the tort.

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Moved by

[Baroness Williams of Trafford]

141: Clause 62, page 57, line 22, at end insert—
“(5A) For the purposes of subsection (1)(a), the cases in which the noise generated by a person taking part in a one-person protest may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the protest include, in particular, where it may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them.”Member’s explanatory statement
This amendment replaces the power for the Secretary of State to make regulations about the meaning of serious disruption for the purposes of section 14ZA of the Public Order Act 1986 with provisions on the face of the Bill, subject to a power to amend these provisions.

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Moved by

[Baroness Williams of Trafford]

148: After Clause 62, insert the following new Clause—
“Offence of locking on
(1) A person commits an offence if—(a) they intentionally—(i) attach themselves to another person, to an object or to land,(ii) attach a person to another person, to an object or to land, or(iii) attach an object to another object or to land,(b) that act causes, or is capable of causing, serious disruption to—(i) two or more individuals, or(ii) an organisation,in a place other than in a dwelling, and(c) they intend that act to have a consequence mentioned in paragraph (b) or are reckless as to whether it will have such a consequence.(2) It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act mentioned in paragraph (a) of that subsection.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.(5) In this section “dwelling” means—(a) a building or structure which is used as a dwelling, or(b) a part of a building or structure, if the part is used as a dwelling,and includes any yard, garden, grounds, garage or outhouse belonging to and used with a dwelling.”Member’s explanatory statement
This amendment creates a new offence of “locking on”, involving the attachment of an individual to another individual, to an object or to land, or an object to another object or to land. It is a requirement of the offence that the act causes or is capable of causing serious disruption to two or more individuals or an organisation and that the accused intends that to occur or is reckless as to whether it will occur.

[Baroness Williams of Trafford (Con)]

This group of amendments brings us back to the new public order measures which the Government initially put forward in Committee. I will not repeat the detailed explanation of each of the new clauses but will instead reiterate the Government’s overall case for these additional measures and highlight the significant changes to the package as compared to the amendments tabled in Committee.

These new measures bolster the police’s powers to respond to the disruptive, dangerous and disproportionately costly tactics employed recently by some groups of protesters. For example, the Metropolitan Police spent over £4 million and deployed over 6,000 officers and staff to police the Insulate Britain protests between 13 September and 20 November last year. Injunctions have their place, but they can be slow to implement. Therefore, it is completely right that the Government are introducing these measures to the Bill to give police the right powers to respond immediately to such protests.

It is against this backdrop that we need to build on the measures already in Part 3 of the Bill. We need to ensure that the criminal law is fit for purpose by ensuring that there are appropriate, targeted offences to prosecute those who engage in actions which endanger others and cause wholly unacceptable disruption, and that the penalties are commensurate with the harm caused. But we also need to ensure that the police have the necessary powers to take effective preventive action. These amendments are directed to that end.

Amendments 148, 149 and 150 reintroduce the offences of locking on and going equipped to lock on, and amend the offence of obstructing the highway, all of which were discussed at Committee. Amendment 151 reintroduces the new offence of obstruction of major transport works.

In response to the amendment put forward by the noble Lord, Lord Hendy, in Committee, we have added a defence for this offence relating to trade disputes. Alongside the defence of reasonable excuse, it will be a defence for individuals to prove that their actions were performed in contemplation or furtherance of a lawful trade dispute. This is to make it clear that this new offence does not interfere with the rights of workers to engage in lawful trade disputes.

Amendment 152 introduces a new offence of interference with the use or operation of key national infrastructure. By targeting key transport infrastructure and printing presses, protesters have been able to inflict disruption and misery on the daily lives of the working public and to undermine press freedom. This Government take such acts extremely seriously. The introduction of this offence, which carries a maximum sentence of 12 months’ imprisonment, reflects that.

“Interference” is defined here as an act that prevents the infrastructure in question being operated to any extent for any of its intended purposes. Acts which significantly delay the operation of key national infrastructure are included within the definition. As with the offence relating to the obstruction of major transport works, Amendment 152 includes a reasonable excuse defence and a defence for those engaged in a trade dispute.

Amendments 154 to 158 reintroduce both the suspicion-based and suspicion-less stop and search powers, which were introduced in Committee. The list of offences to which these powers will apply has been extended to include the new offence of interfering with the operation of key national infrastructure. The police need to be able to respond to a seriously disruptive protest—for example, one blocking a motorway. The public, however, would far rather the police take preventive action, such as seizing locking on equipment, to avoid the disruption happening in the first place, so that they can get to work on time and ambulances can quickly get patients to hospital.

Finally, Amendments 159 and 163 reintroduce serious disruption prevention orders, or SDPOs. As I set out in Committee, these court orders address the acts of a small number of prolific and disruptive protesters who repeatedly trample on the rights of the public to go about their daily business. These amendments are largely unchanged from a similar amendment tabled earlier, but we have included express provision to enable a court to adjourn proceedings to hear an application for an SDPO once it has sentenced the offender in question.

It will be for the courts to determine whether it is necessary and proportionate to make an order for the purposes set out in new Sections 342L and 342M of the Sentencing Code. In reaching such a decision, the courts are well versed in balancing the rights of the individual who may be made the subject of an SDPO and the rights and freedoms of the public who may be significantly adversely affected by the protest-related activities of that individual.

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[Lord Paddick (LD)]

My Lords, perhaps I could deal with the remarks of the noble Lord, Lord Hogan-Howe, to begin with. My recollection is that the report on public order from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services showed that many officers did not want additional powers to deal with locking on. That is in the report. My experience is that the police are getting better and better at dealing with locking on, particularly people supergluing themselves to roadways—people are not now glued to the roadway for very long.

On hospitals that are on minor roads, the noble Lord, Lord Rosser, made it quite clear that he wanted the increased penalty of imprisonment for highway obstruction on the strategic road network where there is no realistic way around a blockage that has been put in. A hospital may be on a minor road, but there are other ways of getting to it, and I do not feel that that argument holds water. I will come to the noble Lord’s comments about the serious disruption orders shortly.

The Minister said that these amendments were debated in Committee. That debate started at 11.50 pm. The Minister stood up to make her closing remarks at 1 am. Does she really think that that is serious consideration and debate of these measures?

These government amendments were a hurried response to the Home Secretary’s knee-jerk, populist reaction to Insulate Britain protests at the Conservative Party conference. Consideration of this part of the Bill had to be taken out of order, to give civil servants time to cobble together these last-minute, ill-conceived, badly thought-through acts of desperation, introduced into this House late at night on the last day of Committee without any consideration by the other place. If the Government are determined to bring in these draconian, antidemocratic laws, reminiscent of Cold War Eastern bloc police states, they should withdraw them now and introduce them as a separate Bill to allow the democratically elected House time to consider them properly.

We oppose all these government amendments, for the reasons I set out in Committee—albeit in the early hours of the morning—and I refer noble Lords to the Official Report. Given the hour, we will vote against the most egregious measures: Amendment 151, which is clearly targeted at climate protesters; Amendment 155, which gives police the power to stop and search anyone and everyone in the vicinity of a protest, including innocent passers-by; and Amendment 159, by which the police can apply for an order to ban people from their democratic right to protest, even when they have never been to a protest in their life, let alone been convicted of any offence in connection with a protest. That is the power in these measures—you do not even have to have been to a protest to be banned from future ones. You do not even have to be convicted of an offence in connection with a protest before you can be banned from going to protests.

If the Official Opposition decide to vote on Amendment 148, on locking on, we will support them. We will also vote in favour of Amendment 150A, to restrict imprisonment for highway obstruction to blocking motorways and other parts of the strategic road network.

The anti-protest measures in the original Bill were dreadful. These measures, and the way they have been introduced, are outrageous.

[Baroness Williams of Trafford (Con)]

My Lords, I am not sure whether noble Lords want more time to debate or me to hurry up. If noble Lords will indulge me for a minute, I will thank them for the support for the new measures that has come from one area of the House, but it is clear that a number of other noble Lords are less enamoured of the government amendments. As I said in opening the debate, I think the British public will fully support these reasonable and proportionate measures to ensure that their daily lives are not disrupted by the sorts of tactics we saw from Insulate Britain last autumn. This is not an argument for or against climate change; it is about the disruption caused to the lives of the working British public.

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[Baroness Williams of Trafford]

150: After Clause 62, insert the following new Clause—
“Wilful obstruction of highway
(1) Section 137 of the Highways Act 1980 (penalty for wilful obstruction) is amended as follows.(2) In subsection (1)—(a) after “liable to” insert “imprisonment for a term not exceeding 51 weeks or”;(b) for “not exceeding level 3 on the standard scale” substitute “or both”.(3) After subsection (1) insert—“(1A) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (1) to 51 weeks is to be read as a reference to 6 months.(1B) For the purposes of this section it does not matter whether free passage along the highway in question has already been temporarily restricted or temporarily prohibited (whether by a constable, a traffic authority or otherwise).(1C) In subsection (1B), “traffic authority” has the same meaning as in the Road Traffic Regulation Act 1984 (see section 121A of that Act).””Member’s explanatory statement
This amendment increases the penalty for the offence of wilfully obstructing a highway. It also clarifies that for the purposes of the offence it does not matter whether free passage along the highway in question has already been temporarily restricted or prohibited.

[Baroness Williams of Trafford]

I beg to move.

Amendment 150A (to Amendment 150)

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[Baroness Williams of Trafford]

151: After Clause 62, insert the following new Clause—
“Obstruction etc of major transport works
(1) A person commits an offence if the person—(a) obstructs the undertaker or a person acting under the authority of the undertaker—(i) in setting out the lines of any major transport works,(ii) in constructing or maintaining any major transport works, or (iii) in taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works, or(b) interferes with, moves or removes any apparatus which—(i) relates to the construction or maintenance of any major transport works, and(ii) belongs to the undertaker, to a person acting under the authority of the undertaker, to a statutory undertaker or to a person acting under the authority of a statutory undertaker.(2) It is a defence for a person charged with an offence under subsection (1) to prove that—(a) they had a reasonable excuse for the act mentioned in paragraph (a) or (b) of that subsection, or(b) the act mentioned in paragraph (a) or (b) of that subsection was done wholly or mainly in contemplation or furtherance of a trade dispute.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.(5) In this section “major transport works” means—(a) works in England and Wales—(i) relating to transport infrastructure, and(ii) the construction of which is authorised directly by an Act of Parliament, or(b) works the construction of which comprises development within subsection (6) that has been granted development consent by an order under section 114 of the Planning Act 2008.(6) Development is within this subsection if—(a) it is or forms part of a nationally significant infrastructure project within any of paragraphs (h) to (l) of section 14(1) of the Planning Act 2008,(b) it is or forms part of a project (or proposed project) in the field of transport in relation to which a direction has been given under section 35(1) of that Act (directions in relation to projects of national significance) by the Secretary of State, or(c) it is associated development in relation to development within paragraph (a) or (b).(7) In this section “undertaker”—(a) in relation to major transport works within subsection (5)(a), means a person who is authorised by or under the Act (whether as a result of being appointed the nominated undertaker for the purposes of the Act or otherwise) to construct or maintain any of the works;(b) in relation to major transport works within subsection (5)(b), means a person who is constructing or maintaining any of the works (whether as a result of being the undertaker for the purposes of the order granting development consent or otherwise).(8) In this section—“associated development” has the same meaning as in the Planning Act 2008 (see section 115 of that Act);“development” has the same meaning as in the Planning Act 2008 (see section 32 of that Act);“development consent” has the same meaning as in the Planning Act 2008 (see section 31 of that Act); “England” includes the English inshore region within the meaning of the Marine and Coastal Access Act 2009 (see section 322 of that Act);“maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace, and “maintenance” is to be construed accordingly;“nationally significant infrastructure project” has the same meaning as in the Planning Act 2008 (see section 14(1) of that Act);“statutory undertaker” means a person who is, or who is deemed to be, a statutory undertaker for the purposes of any provision of Part 11 of the Town and Country Planning Act 1990;“trade dispute” has the same meaning as in Part 4 of the Trade Union and Labour Relations (Consolidation) Act 1992, except that section 218 of that Act is to be read as if—(a) it made provision corresponding to section 244(4) of that Act, and(b) in subsection (5), the definition of worker included any person falling within paragraph (b) of the definition of worker in section 244(5) of that Act;“Wales” includes the Welsh inshore region within the meaning of the Marine and Coastal Access Act 2009 (see section 322 of that Act).(9) In section 14 of the Planning Act 2008 (nationally significant infrastructure projects), after subsection (3) insert—“(3A) An order under subsection (3)(a) may also amend section (Obstruction etc of major transport works) (6)(a) of the Police, Crime, Sentencing and Courts Act 2021 (obstruction etc of major transport works).””Member’s explanatory statement
This amendment contains a new offence of obstructing the construction or maintenance of major transport works. These are transport works that are authorised directly by an Act of Parliament or by certain development consent orders under the Planning Act 2008.

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[Baroness Williams of Trafford]

152: After Clause 62, insert the following new Clause—
“Interference with use or operation of key national infrastructure
(1) A person commits an offence if—(a) they do an act which interferes with the use or operation of any key national infrastructure in England and Wales, and(b) they intend that act to interfere with the use or operation of such infrastructure or are reckless as to whether it will do so.(2) It is a defence for a person charged with an offence under subsection (1) to prove that—(a) they had a reasonable excuse for the act mentioned in paragraph (a) of that subsection, or(b) the act mentioned in paragraph (a) of that subsection was done wholly or mainly in contemplation or furtherance of a trade dispute.(3) A person guilty of an offence under subsection (1) is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine or to both;(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months, to a fine, or to both.(4) In relation to an offence committed before the coming into force of paragraph 24(2) of Schedule 22 to the Sentencing Act 2020, the reference in subsection (3)(a) to 12 months is to be read as a reference to 6 months.(5) For the purposes of subsection (1) a person’s act interferes with the use or operation of key national infrastructure if it prevents the infrastructure from being used or operated to any extent for any of its intended purposes.(6) The cases in which infrastructure is prevented from being used or operated for any of its intended purposes include where its use or operation for any of those purposes is significantly delayed.(7) In this section “key national infrastructure” means—(a) road transport infrastructure,(b) rail infrastructure,(c) air transport infrastructure,(d) harbour infrastructure,(e) downstream oil infrastructure, or(f) newspaper printing infrastructure.Section (Key national infrastructure) makes further provision about these kinds of infrastructure.(8) The Secretary of State may by regulations made by statutory instrument— (a) amend subsection (7) to add a new kind of infrastructure or to vary or remove an existing kind of infrastructure;(b) amend section (Key national infrastructure) to add, amend or remove provision about a kind of infrastructure which is in, or is to be added to, subsection (7) or is to be removed from that subsection.(9) Regulations under subsection (8)—(a) may make different provision for different purposes;(b) may make consequential, supplementary, incidental, transitional, transitory or saving provision.(10) A statutory instrument containing regulations under subsection (8) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(11) In this section—“England” includes the English inshore region within the meaning of the Marine and Coastal Access Act 2009 (see section 322 of that Act);“trade dispute” has the same meaning as in Part 4 of the Trade Union and Labour Relations (Consolidation) Act 1992, except that section 218 of that Act is to be read as if—(a) it made provision corresponding to section 244(4) of that Act, and(b) in subsection (5), the definition of worker included any person falling within paragraph (b) of the definition of worker in section 244(5) of that Act;“Wales” includes the Welsh inshore region within the meaning of the Marine and Coastal Access Act 2009 (see section 322 of that Act).”Member’s explanatory statement
This amendment makes it an offence for a person to do an act which interferes with the use or operation of key national infrastructure where the person intends the act to have that effect or is reckless as to whether it will do so. This is subject to a defence of reasonable excuse and a defence applying to industrial action.

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[Baroness Williams of Trafford]

153: After Clause 62, insert the following new Clause—
“Key national infrastructure
(1) This section has effect for the purposes of section (Interference with use or operation of key national infrastructure).(2) “Road transport infrastructure” means—(a) a special road within the meaning of the Highways Act 1980 (see section 329(1) of that Act), or(b) a road which, under the system for assigning identification numbers to roads administered by the Secretary of State or the Welsh Ministers, has for the time being been assigned a number prefixed by A or B.(3) “Rail infrastructure” means infrastructure used for the purposes of railway services within the meaning of Part 1 of the Railways Act 1993 (see section 82 of that Act).(4) In the application of section 82 of the Railways Act 1993 for the purposes of subsection (3) “railway” has the wider meaning given in section 81(2) of that Act.(5) “Air transport infrastructure” means—(a) an airport within the meaning of the Airports Act 1986 (see section 82(1) of that Act), or(b) any infrastructure which—(i) does not form part of an airport within the meaning of that Act, and(ii) is used for the provision of air traffic services within the meaning of Part 1 of the Transport Act 2000 (see section 98 of that Act).(6) “Harbour infrastructure” means a harbour within the meaning of the Harbours Act 1964 (see section 57(1) of that Act) which provides facilities for or in connection with—(a) the embarking or disembarking of passengers who are carried in the course of a business, or(b) the loading or unloading of cargo which is carried in the course of a business.(7) “Downstream oil infrastructure” means infrastructure used for or in connection with any of the following activities—(a) the refinement or other processing of crude oil or oil feedstocks;(b) the storage of crude oil or crude oil-based fuel for onward distribution, other than storage by a person who supplies crude oil-based fuel to the public where the storage is for the purposes of such supply;(c) the loading or unloading of crude oil or crude oil-based fuel for onward distribution, other than unloading to a person who supplies crude oil-based fuel to the public where the unloading is for the purposes of such supply; (d) the carriage, by road, rail, sea or inland waterway, of crude oil or crude oil-based fuel for the purposes of onward distribution;(e) the conveyance of crude oil or crude oil-based fuel by means of a pipe-line within the meaning of the Pipe-lines Act 1962 (see section 65 of that Act).(8) “Newspaper printing infrastructure” means infrastructure the primary purpose of which is the printing of one or more national or local newspapers.(9) In this section—“local newspaper” means a newspaper which is published at least fortnightly and is in circulation in a part of England and Wales;“national newspaper” means a newspaper which is published at least fortnightly and is in circulation in England, in Wales or in both;“newspaper” includes a periodical or magazine.”Member’s explanatory statement
This amendment defines the different types of key national infrastructure for the purposes of the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 62 and creating the offence of interfering with the use or operation of such infrastructure.

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[Baroness Williams of Trafford]

154: After Clause 62, insert the following new Clause—
“Powers to stop and search on suspicion
In section 1(8) of the Police and Criminal Evidence Act 1984 (offences in relation to which stop and search power applies)—(a) omit the “and” at the end of paragraph (d), and(b) after paragraph (e) insert—“(f) an offence under section 137 of the Highways Act 1980 (wilful obstruction) involving activity which causes or is capable of causing serious disruption to two or more individuals or to an organisation;(g) an offence under section 61 of the Police, Crime, Sentencing and Courts Act 2021 (intentionally or recklessly causing public nuisance);(h) an offence under section (Offence of locking on) of that Act (offence of locking on);(i) an offence under section (Obstruction etc of major transport works) of that Act (obstruction etc of major transport works); and(j) an offence under section (Interference with use or operation of key national infrastructure) of that Act (interference with use or operation of key national infrastructure).”.”Member’s explanatory statement
This amendment amends section 1 of the Police and Criminal Evidence Act 1984 to allow a constable to stop and search a person or vehicle if they have reasonable grounds for suspecting that they will find an article made, adapted or intended for use in the course of or in connection with an offence listed in the amendment.

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[Baroness Williams of Trafford]

155: After Clause 62, insert the following new Clause—
“Powers to stop and search without suspicion
(1) This section applies if a police officer of or above the rank of inspector reasonably believes—(a) that any of the following offences may be committed in any locality within the officer’s police area—(i) an offence under section 137 of the Highways Act 1980 (wilful obstruction) involving activity which causes or is capable of causing serious disruption to two or more individuals or to an organisation;(ii) an offence under section 61 (intentionally or recklessly causing public nuisance);(iii) an offence under section (Offence of locking on) (offence of locking on);(iv) an offence under section (Obstruction etc of major transport works) (obstruction etc of major transport works);(v) an offence under section (Interference with use or operation of key national infrastructure) (interference with use or operation of key national infrastructure), or(b) that persons are carrying prohibited objects in any locality within the officer’s police area.(2) In this section “prohibited object” means an object which—(a) is made or adapted for use in the course of or in connection with an offence within subsection (1)(a), or(b) is intended by the person having it with them for such use by them or by some other person,and for the purposes of this section a person carries a prohibited object if they have it in their possession.(3) If the further condition in subsection (4) is met, the police officer may give an authorisation that the powers conferred by this section are to be exercisable— (a) anywhere within a specified locality within the officer’s police area, and(b) for a specified period not exceeding 24 hours.(4) The further condition is that the police officer reasonably believes that—(a) the authorisation is necessary to prevent the commission of offences within subsection (1)(a) or the carrying of prohibited objects (as the case may be),(b) the specified locality is no greater than is necessary to prevent such activity, and(c) the specified period is no longer than is necessary to prevent such activity.(5) If it appears to a police officer of or above the rank of superintendent that it is necessary to do so to prevent the commission of offences within subsection (1)(a) or the carrying of prohibited objects, the officer may direct that the authorisation is to continue in force for a further period not exceeding 24 hours.(6) This section confers on any constable in uniform power—(a) to stop any person and search them or anything carried by them for a prohibited object;(b) to stop any vehicle and search the vehicle, its driver and any passenger for a prohibited object.(7) A constable may, in the exercise of the powers conferred by subsection (6), stop any person or vehicle and make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person or vehicle is carrying a prohibited object.(8) If in the course of a search under this section a constable discovers an object which the constable has reasonable grounds for suspecting to be a prohibited object, the constable may seize it.(9) This section and sections (Further provisions about authorisations and directions under section (Powers to stop and search without suspicion)) (further provisions about authorisations and directions under this section), (Further provisions about searches under section (Powers to stop and search without suspicion)) (further provisions about searches under this section) and (Offence relating to section (Powers to stop and search without suspicion)) (offence relating to this section) apply (with the necessary modifications) to ships, aircraft and hovercraft as they apply to vehicles.(10) In this section and the sections mentioned in subsection (9)—“specified” means specified in an authorisation under this section;“vehicle” includes a caravan as defined in section 29(1) of the Caravan Sites and Control of Development Act 1960.(11) The powers conferred by this section and the sections mentioned in subsection (9) do not affect any power conferred otherwise than by this section or those sections.”Member’s explanatory statement
This amendment makes provision for a senior police officer to give an authorisation applying to a specified locality for a specified period and allowing a constable to stop and search a person or vehicle for an object made, adapted or intended for use in the course of or in connection with an offence listed in the amendment. While the authorisation is in force the constable may exercise the power whether or not they have any grounds for suspecting the person or vehicle is carrying such an object.

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[Baroness Williams of Trafford]

159: After Clause 62, insert the following new Clause—
“Serious disruption prevention orders
(1) In Part 11 of the Sentencing Code (behaviour orders), after Chapter 1A (as inserted by section 141) insert—“CHAPTER 1BSERIOUS DISRUPTION PREVENTION ORDERSSerious disruption prevention orders made on conviction342L Serious disruption prevention order made on conviction(1) This section applies where—(a) a person aged 18 or over (“P”) is convicted of an offence (“the current offence”) which was committed on or after the day on which this section comes into force, and(b) the prosecution applies for a serious disruption prevention order to be made in respect of P.(2) The court dealing with P in respect of the current offence may make a serious disruption prevention order in respect of P if—(a) the court is satisfied on the balance of probabilities that the current offence is a protest-related offence,(b) the earlier offence condition is met, and(c) the court considers it necessary to make the order for a purpose mentioned in subsection (5).(3) The earlier offence condition is that— (a) within the relevant period, P has been convicted of an offence (“the earlier offence”),(b) the court is satisfied on the balance of probabilities that the earlier offence was a protest-related offence, and(c) the current offence and the earlier offence—(i) relate to different protests, or(ii) were committed on different days.(4) In subsection (3) “the relevant period” means the period of 5 years ending with the day on which P is convicted of the current offence; but an offence may be taken into account for the purposes of this section only if it was committed—(a) on or after the day on which this section comes into force, and(b) when P was aged 16 or over.(5) The purposes are—(a) to prevent P from committing a protest-related offence or a protest-related breach of an injunction;(b) to prevent P from carrying out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales;(c) to prevent P from causing or contributing to—(i) the commission by any other person of a protest-related offence or a protest-related breach of an injunction, or(ii) the carrying out by any other person of activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales;(d) to protect two or more individuals, or an organisation, in England and Wales from the risk of serious disruption arising from—(i) a protest-related offence,(ii) a protest-related breach of an injunction, or(iii) activities related to a protest.(6) A serious disruption prevention order under this section is an order which, for a purpose mentioned in subsection (5)—(a) requires P to do anything described in the order;(b) prohibits P from doing anything described in the order.(7) The court may make a serious disruption prevention order in respect of P only if it is made in addition to—(a) a sentence imposed in respect of the current offence, or(b) an order discharging P conditionally.(8) For the purpose of deciding whether to make a serious disruption prevention order the court may consider evidence led by the prosecution or P.(9) It does not matter whether the evidence would have been admissible in the proceedings for the current offence.(10) The court may adjourn any proceedings on an application for a serious disruption prevention order even after sentencing P.(11) If P does not appear for any adjourned proceedings the court may—(a) further adjourn the proceedings,(b) issue a warrant for P’s arrest, or(c) hear the proceedings in P’s absence. (12) The court may not act under subsection (11)(b) unless it is satisfied that P has had adequate notice of the time and place of the adjourned proceedings.(13) The court may not act under subsection (11)(c) unless it is satisfied that P—(a) has had adequate notice of the time and place of the adjourned proceedings, and(b) has been informed that if P does not appear for those proceedings the court may hear the proceedings in P’s absence.(14) On making a serious disruption prevention order the court must in ordinary language explain to P the effects of the order.(15) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of this section to have been committed on the last of those days.Serious disruption prevention orders made otherwise than on conviction342M Serious disruption prevention order made otherwise than on conviction(1) A magistrates’ court may make a serious disruption prevention order in respect of a person (“P”) where—(a) a person within subsection (7) applies by complaint to the court for a serious disruption prevention order to be made in respect of P,(b) P is aged 18 or over when the application is made,(c) the condition in subsection (2) is met, and(d) the court considers it necessary to make the order for a purpose mentioned in subsection (4).(2) This condition in this subsection is that the court is satisfied on the balance of probabilities that—(a) on at least two occasions in the relevant period, P has—(i) been convicted of a protest-related offence,(ii) been found in contempt of court for a protest-related breach of an injunction,(iii) carried out activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales,(iv) caused or contributed to the commission by any other person of a protest-related offence or a protest-related breach of an injunction, or(v) caused or contributed to the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales, and(b) each event mentioned in paragraph (a)—(i) relates to a different protest, or(ii) took place on a different day.(3) In subsection (2) “the relevant period” means the period of 5 years ending with the day on which the order is made; but an event may be taken into account for the purposes of this section only if it occurred—(a) on or after the day on which this section comes into force, and(b) when P was aged 16 or over.(4) The purposes are—(a) to prevent P from committing a protest-related offence or a protest-related breach of an injunction; (b) to prevent P from carrying out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales;(c) to prevent P from causing or contributing to—(i) the commission by any other person of a protest-related offence or a protest-related breach of an injunction, or(ii) the carrying out by any other person of activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales;(d) to protect two or more individuals, or an organisation, in England and Wales from the risk of serious disruption arising from—(i) a protest-related offence,(ii) a protest-related breach of an injunction, or(iii) activities related to a protest.(5) A serious disruption prevention order under this section is an order which, for a purpose mentioned in subsection (4)—(a) requires P to do anything described in the order;(b) prohibits P from doing anything described in the order.(6) On making a serious disruption prevention order the court must in ordinary language explain to P the effects of the order.(7) The following persons are within this subsection—(a) a relevant chief officer of police;(b) the chief constable of the British Transport Police Force;(c) the chief constable of the Civil Nuclear Constabulary;(d) the chief constable of the Ministry of Defence Police.(8) For the purposes of subsection (7)(a) a chief officer of police is a relevant chief officer of police in relation to an application for a serious disruption prevention order in respect of P if—(a) P lives in the chief officer’s police area, or(b) the chief officer believes that P is in, or is intending to come to, the chief officer’s police area.(9) An application for a serious disruption prevention order made by a chief officer of police for a police area may be made only to a court acting for a local justice area that includes any part of that police area.(10) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of this section to have been committed on the last of those days.(11) Section 127 of the Magistrates’ Courts Act 1980 (time limits) does not apply to a complaint under this section.Provisions of serious disruption prevention orders342N Provisions of serious disruption prevention order(1) The requirements imposed on a person (“P”) by a serious disruption prevention order may, in particular, have the effect of requiring P to present themselves to a particular person at a particular place at, or between, particular times on particular days.(2) Sections 342O and 342P make further provision about the inclusion of requirements (including notification requirements) in a serious disruption prevention order. (3) The prohibitions imposed on a person (“P”) by a serious disruption prevention order may, in particular, have the effect of prohibiting P from—(a) being at a particular place;(b) being at a particular place between particular times on particular days;(c) being at a particular place between particular times on any day;(d) being with particular persons;(e) participating in particular activities;(f) having particular articles with them;(g) using the internet to facilitate or encourage persons to—(i) commit a protest-related offence or a protest-related breach of an injunction, or(ii) carry out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales.(4) References in this section to a particular place or particular persons, activities or articles include a place, persons, activities or articles of a particular description.(5) A serious disruption prevention order which imposes prohibitions on a person may include exceptions from those prohibitions.(6) Nothing in this section affects the generality of sections 342L(6) and 342M(5).(7) The requirements or prohibitions which are imposed on a person by a serious disruption prevention order must, so far as practicable, be such as to avoid—(a) any conflict with the person’s religious beliefs, and(b) any interference with the times, if any, at which the person normally works or attends any educational establishment.342O Requirements in serious disruption prevention order(1) A serious disruption prevention order which imposes on a person (“P”) a requirement, other than a notification requirement under section 342P, must specify a person who is to be responsible for supervising compliance with the requirement.(2) That person may be an individual or an organisation.(3) Before including such a requirement, the court must receive evidence about its suitability and enforceability from—(a) the individual to be specified under subsection (1), if an individual is to be specified;(b) an individual representing the organisation to be specified under subsection (1), if an organisation is to be specified.(4) Before including two or more such requirements, the court must consider their compatibility with each other.(5) It is the duty of a person specified under subsection (1)—(a) to make any necessary arrangements in connection with the requirements for which the person has responsibility (the “relevant requirements”);(b) to promote P’s compliance with the relevant requirements;(c) if the person considers that P—(i) has complied with all of the relevant requirements, or(ii) has failed to comply with a relevant requirement,to inform the appropriate chief officer of police. (6) In subsection (5)(c) “the appropriate chief officer of police” means—(a) the chief officer of police for the police area in which it appears to the person specified under subsection (1) that P lives, or(b) if it appears to that person that P lives in more than one police area, whichever of the chief officers of police of those areas the person thinks it is most appropriate to inform.(7) Where P is subject to a requirement in a serious disruption prevention order, other than a notification requirement under section 342P, P must—(a) keep in touch with the person specified under subsection (1) in relation to that requirement, in accordance with any instructions given by that person from time to time, and(b) notify that person of any change of P’s home address.(8) The obligations mentioned in subsection (7) have effect as if they were requirements imposed on P by the order.342P Notification requirements in serious disruption prevention order(1) A serious disruption prevention order made in respect of a person (“P”) must impose on P the notification requirements in subsections (2) and (4).(2) P must be required to notify the information in subsection (3) to the police within the period of 3 days beginning with the day on which the order takes effect.(3) That information is—(a) P’s name on the day that the notification is given and, where P uses one or more other names on that day, each of those names,(b) P’s home address on that day, and(c) the address of any other premises at which, on that day, P regularly resides or stays.(4) P must be required to notify the information mentioned in subsection (5) to the police within the period of 3 days beginning with the day on which P—(a) uses a name which has not been previously notified to the police in accordance with the order,(b) changes their home address, or(c) decides to live for a period of one month or more at any premises the address of which has not been previously notified to the police in accordance with the order.(5) That information is—(a) in a case within subsection (4)(a), the name which has not previously been notified,(b) in a case within subsection (4)(b), the new home address, and(c) in a case within subsection (4)(c), the address of the premises at which P has decided to live.(6) A serious disruption prevention order must provide that P gives a notification of the kind mentioned in subsection (2) or (4) by—(a) attending at a police station in a police area in which P lives, and(b) giving an oral notification to a police officer, or to any person authorised for the purpose by the officer in charge of the station.342Q Duration of serious disruption prevention order(1) A serious disruption prevention order takes effect on the day it is made, subject to subsections (3) and (4). (2) A serious disruption prevention order must specify the period for which it has effect, which must be a fixed period of not less than 1 week and not more than 2 years.(3) Subsection (4) applies in relation to a serious disruption prevention order made in respect of a person (“P”) if—(a) P has been remanded in or committed to custody by an order of a court,(b) a custodial sentence has been imposed on P or P is serving or otherwise subject to a such a sentence, or(c) P is on licence for part of the term of a custodial sentence.(4) The order may provide that it does not take effect until—(a) P is released from custody,(b) P ceases to be subject to a custodial sentence, or(c) P ceases to be on licence.(5) A serious disruption prevention order may specify periods for which particular requirements or prohibitions have effect.(6) Where a court makes a serious disruption prevention order in respect of a person and the person is already subject to such an order, the earlier order ceases to have effect.(7) In this section “custodial sentence” includes a pre-Code custodial sentence (see section 222(4)).342R Other information to be included in serious disruption prevention orderA serious disruption prevention order made in respect of a person must specify—(a) the reasons for making the order, and(b) the penalties which may be imposed on the person for breaching the order.Offences342S Offences relating to a serious disruption prevention order(1) Where a serious disruption prevention order has effect in respect of a person (“P”), P commits an offence if P—(a) fails without reasonable excuse to do anything P is required to do by the order,(b) without reasonable excuse does anything P is prohibited from doing by the order, or(c) notifies to the police, in purported compliance with the order, any information which P knows to be false.(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or a fine or both.(3) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (2) to 51 weeks is to be read as a reference to 6 months.Variation, renewal or discharge of serious disruption prevention order342T Variation, renewal or discharge of serious disruption prevention order(1) Where a serious disruption prevention order has been made in respect of a person (“P”), a person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging the order.(2) Those persons are—(a) P; (b) the chief officer of police for the police area in which P lives;(c) a chief officer of police who believes that P is in, or is intending to come to, the chief officer’s police area;(d) if the application for the order was made by a chief officer of police other than one within paragraph (b) or (c), the chief officer by whom the application was made;(e) the chief officer of police for a police area in which P committed an offence on the basis of which the order was made;(f) where the order was made following an application by a constable within subsection (3), that constable.(3) Those constables are—(a) the chief constable of the British Transport Police Force;(b) the chief constable of the Civil Nuclear Constabulary;(c) the chief constable of the Ministry of Defence Police.(4) An application under this section must be made—(a) where the appropriate court is a magistrates’ court, by complaint;(b) in any other case, in accordance with rules of court.(5) Before making a decision on an application under this section, the court must hear—(a) the person making the application, and(b) any other person within subsection (2) who wishes to be heard.(6) Subject to subsection (7), on an application under this section the court may make such order varying, renewing or discharging the serious disruption prevention order as it thinks appropriate.(7) The court may renew a serious disruption prevention order, or vary such an order so as to lengthen its duration or to impose an additional prohibition or requirement on P, only if it considers that to do so is necessary—(a) to prevent P from committing a protest-related offence or a protest-related breach of an injunction,(b) to prevent P from carrying out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales,(c) to prevent P from causing or contributing to—(i) the commission by any other person of a protest-related offence or a protest-related breach of an injunction, or(ii) the carrying out by any other person of activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales, or(d) to protect two or more individuals, or an organisation, in England and Wales from the risk of serious disruption arising from—(i) a protest-related offence,(ii) a protest-related breach of an injunction, or(iii) activities related to a protest.(8) Sections 342N, 342O, 342P (other than subsections (2) and (3)), 342Q and 342R have effect in relation to the renewal of a serious disruption prevention order, or the variation of such an order so as to lengthen its duration or to impose a new requirement or prohibition, as they have effect in relation to the making of such an order. (9) On making an order under this section varying or renewing a serious disruption prevention order, the court must in ordinary language explain to P the effects of the serious disruption prevention order (as varied or renewed).(10) Section 127 of the Magistrates’ Courts Act 1980 does not apply to a complaint under this section.(11) In this section “the appropriate court” means—(a) where the Crown Court or the Court of Appeal made the order, the Crown Court;(b) where a magistrates’ court made the order and the application is made by P or a constable within subsection (3)—(i) that magistrates’ court, or(ii) a magistrates’ court for the area in which P lives;(c) where a magistrates’ court made the order and the application is made by a chief officer of police—(i) that magistrates’ court,(ii) a magistrates’ court for the area in which P lives, or(iii) a magistrates’ court acting for a local justice area that includes any part of the chief officer’s police area.Appeals342U Appeal against serious disruption prevention order(1) Where a serious disruption prevention order is made under section 342L (order on conviction) in respect of a person (“P”), P may appeal against the making of the order as if the order were a sentence passed on P for the offence.(2) Where a serious disruption prevention order is made under section 342M (order otherwise than on conviction) in respect of a person (“P”), P may appeal to the appropriate court against the making of the order.(3) A person who applied under section 342M (order otherwise than on conviction) for a serious disruption prevention order to be imposed in respect of a person may appeal to the appropriate court against a refusal to make the order.(4) Where an application is made under section 342T for an order varying, renewing or discharging a serious disruption prevention order made in respect of a person (“P”)—(a) the person who made the application may appeal to the appropriate court against a refusal to make an order under that section;(b) P may appeal to the appropriate court against the making of an order under that section which was made on the application of a person other than P;(c) a person within subsection (2) of that section (other than P) may appeal to the appropriate court against the making of an order under that section which was made on the application of P.(5) In this section “the appropriate court” means—(a) in relation to an appeal under subsection (2), the Crown Court;(b) in relation to an appeal under subsection (3) or (4)—(i) where the application in question was made to a magistrates’ court, the Crown Court;(ii) where the application in question was made to the Crown Court, the Court of Appeal.(6) On an appeal under this section to the Crown Court, the court may make—(a) such orders as may be necessary to give effect to its determination of the appeal, and (b) such incidental and consequential orders as appear to it to be appropriate.General342V Guidance(1) The Secretary of State may issue guidance to—(a) chief officers of police,(b) the chief constable of the British Transport Police Force,(c) the chief constable of the Civil Nuclear Constabulary, and(d) the chief constable of the Ministry of Defence Police,in relation to serious disruption prevention orders.(2) The guidance may in particular include—(a) guidance about the exercise by chief officers of police and the chief constables mentioned in subsection (1) of their functions under this Chapter,(b) guidance about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made, and(c) guidance about providing assistance to prosecutors in connection with applications for serious disruption prevention orders.(3) The Secretary of State may revise any guidance issued under this section.(4) The Secretary of State must arrange for any guidance issued under this section to be published.(5) A chief officer of police or a chief constable mentioned in subsection (1) must have regard to any guidance issued under this section.342W Guidance: Parliamentary procedure(1) Before issuing guidance under section 342V, the Secretary of State must lay a draft of the guidance before Parliament.(2) If, within the 40-day period, either House of Parliament resolves not to approve the draft guidance, the guidance may not be issued.(3) If no such resolution is made within that period, the Secretary of State may issue the guidance.(4) In this section “the 40-day period”, in relation to draft guidance, means the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House on the same day, the later of the days on which it is laid).(5) In calculating the 40-day period, no account is to be taken of any period during which—(a) Parliament is dissolved or prorogued, or(b) both Houses are adjourned for more than 4 days.342X Interpretation of ChapterIn this Chapter—“home address”, in relation to a person (“P”), means—(a) the address of P’s sole or main residence, or(b) if P has no such residence, the address or location of a place where P can regularly be found and, if there is more than one such place, such one of those places as P may select;“injunction” means an injunction granted by the High Court, the county court or a youth court;“protest-related breach”, in relation to an injunction, means a breach which is directly related to a protest; “protest-related offence” means an offence which is directly related to a protest.”(2) In section 3(2) of the Prosecution of Offences Act 1985 (functions of the Director of Public Prosecutions), before paragraph (g) insert—“(fi) to have the conduct of applications for orders under section 342L(1)(b) of the Sentencing Code (serious disruption prevention orders on conviction);”.”Member’s explanatory statement
This amendment contains provisions about serious disruption prevention orders. These are orders which can be imposed on a person who has committed two protest-related offences or who has, on at least two occasions, committed protest-related breaches of injunctions or caused or contributed to the commission of such offences or breaches or to activity related to a protest that resulted in serious disruption to two or more individuals or to an organisation.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we will be supporting the noble Lord, Lord Best, if he chooses to press his amendment to a vote. If I may refer briefly to my experiences as a magistrate, it is indeed true that we do not actually see this charge brought very often—of course, we do see beggars, but it really is not that often. It seems to me that there is widespread cross-party support for repealing the Act. A compromise has been put forward by the noble Lord, Lord Best, and I will be interested in hearing the Minister’s response. If the noble Lord does choose to press his amendment, we will support him.

[Baroness Williams of Trafford (Con)]

My Lords, I will join other noble Lords in trying to be brief, given the lateness of the hour. I thank the noble Lord, Lord Best, my noble friend Lord Young of Cookham, and the noble Baroness, Lady Thornhill, for their commitment on this issue. I can only apologise that the letter was so late in returning to them.

I assured noble Lords in Committee, and I do so again now, that the Government firmly agree that no one should be criminalised simply for having nowhere to live or for sleeping rough. The Government’s dedication to supporting this group has been at the centre of our response to the pandemic, as the noble Lord, Lord Best, has said. We have also recently provided £28 million to local authorities to support them to promote vaccination among people sleeping rough and to provide emergency accommodation to get people off the streets. That builds on the success of the Everyone In programme.

The Government are fully committed to reviewing the Vagrancy Act, but the review has been delayed by the pandemic and by our resulting endeavours to protect vulnerable individuals. In Committee, I explained that rough sleeping and begging were complex issues, and that we therefore must give due consideration to how and why the Vagrancy Act was still used to tackle begging and what impact any changes to the Act will have. This includes consideration of any legislative gap left by repeal that may impact the police’s moves to deal with begging.

The noble Lord spoke about the way the Anti-social Behaviour, Crime and Policing Act 2014 can be used to deal with certain types of begging, but that Act is not always a suitable alternative. Begging is complex and does not always meet the legal tests in the 2014 legislation to allow the police or local authorities to tackle specific forms of begging where intervention may still be useful, specifically passive begging, where there is no associated anti-social behaviour but where, none the less, there might be an impact on communities as well as the individual. For example, someone who is sleeping rough might engage in passive begging and might use that money to survive on the street. They might be resistant to taking up offers of support, and this might have an indirect impact on communities or businesses. In such circumstances, there would be nothing the police could do to help compel the individual to take up support.

There are also international examples of different approaches taken to tackle begging, including passive begging, that we should consider. For example, should the police be able to intervene if begging affects businesses or, as in some countries, if begging is opportunistic, for example near an ATM, or fraudulent, such as feigning injury or illness?

The Government think that enforcement, when coupled with meaningful offers of support and close work with other agencies, can form an important part of moving people away from the streets. It is vital that the police can play their part here and that they have effective legislation at their fingertips, but this position does not negate the Government’s firm view that rough sleeping should not be criminalised and, where an individual is truly destitute, it is paramount that a multiagency approach is taken to provide that necessary support. To ensure that the response is effective, we need legislation that complements the delivery of services and allows for constructive engagement with vulnerable individuals. I recently wrote to the noble Lord with more information on the detail of our position.

As it stands, an outright repeal of the Vagrancy Act might leave a gap. That is why, as I explained when I met with the noble Lord, once the necessary work has been concluded, the Government are committed to repealing the outdated Act and replacing it with much more modern, fit-for-purpose legislation when parliamentary time allows. Until we have completed this work, it would be a bit premature to repeal the Act. In the light of the commitment that I have outlined, confirming that the Government will consult on what the appropriate legislation should look like, I ask the noble Lord to withdraw his amendment.

[Lord Best (CB)]

My Lords, I am sincerely grateful to noble Lords who supported the case for repeal of the Vagrancy Act. I thank the Minister for her comments, but I confess to being very disappointed that she has not been able to commit to a Third Reading amendment covering the repeal of just the rough sleeping part of the Vagrancy Act. Even though she made it clear that this will happen sometime one day, she has not been able to announce that this step will be taken at Third Reading. I really see no reason why we could not come to an agreement on this amendment, which is limited but repeals the most egregious aspect of the old Vagrancy Act.

However, the Minister has rejected our proposals, which means that people who are homeless will remain subject to being criminalised rather than being supported out of their predicament into the indefinite future. My only course of action is to hope that this can be resolved in the Commons. I would like to test the opinion of the House.

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Moved by

[Baroness Williams of Trafford]

166: Clause 178, page 198, line 27, at end insert—
“(sa) section (Knife crime prevention order on conviction: adjournment of proceedings) (2) to (4);”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 142 and relating to adjournment of proceedings on an application for a knife crime prevention order.