Safety of Rwanda (Asylum and Immigration) Bill

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments
Monday 22nd April 2024 Lords Chamber

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

My Lords, this Bill has now been scrutinised a number of times. The Government have rejected this amendment several times, so we must now accept the will of the elected House, bring the debate on this last amendment to an end and get this Bill on to the statute book. Having now debated this issue on so many occasions, I will not repeat the same arguments but reiterate a few key points. The Bill’s provisions come into force when the treaty enters into force, which is when the parties have completed their internal procedures. We will ratify the treaty in the UK only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty.

I have set out the steps that have been taken to be ready for the treaty to be ratified, and I will remind noble Lords once again of the most recent step. Last Friday, 19 April, the Rwandan Parliament passed its domestic legislation to implement the new asylum system. Rwanda has a proven track record of working constructively with domestic and international partners, including the UNHCR, the International Organization for Migration and other non-government organisations to process and support asylum seekers and the refugee population. As I have already set out this evening, the Government are satisfied that Rwanda is safe and has the right mechanisms in place should a situation ever arise that would change that view. The Government will respond as necessary, and this will include a range of options to respond to the circumstances, including any primary legislation if required.

The monitoring committee will undertake daily monitoring of the partnership for at least the first three months to ensure rapid identification of, and response to, any issues. This enhanced phase will ensure that comprehensive monitoring and reporting take place in real time. During the period of enhanced monitoring, the monitoring committee will report to the joint committee in accordance with an agreed action plan to include weekly and biweekly reporting, as required. The implementation of these provisions in practice will be kept under review by the independent monitoring committee, whose role was enhanced by the treaty, which will ensure compliance. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, Amendment 3J in my name turned out to be the last one standing. Perhaps I may say just a few words at its funeral. It was not much, perhaps, compared with some of those amendments that had already been defeated. Indeed, it survived so long under the guidance of the noble and learned Lord, Lord Hope of Craighead, who I am delighted to see back in his place, precisely because it was so modest and unthreatening to the Government’s policy. But it at least touched on a central disease of this Bill and perhaps of our body politic more generally: the imputation of decisions to Parliament to reduce the possibilities for challenge and the pretence that by asserting something to be true, even in the teeth of the evidence, one can not only make it true but keep it true for ever.

Many people, some of them perhaps still watching even now, will have wished us to keep on fighting, but without the threat of double insistence—which remains part of our constitutional armoury, but which did not command the necessary political support on this occasion—there would have been no point in doing so. The purpose of ping-pong is to persuade the Government, through force of argument, to come to the table and agree a compromise. They have refused pointedly to do so, and after four rounds of ping-pong, their control of the Commons remains as solid as ever.

The time has now come to acknowledge the primacy of the elected House and to withdraw from the fray. We do so secure at least in the knowledge that the so-called judgment of Parliament was not the judgment of this House, and that we tried our hardest to achieve something a little more sensible. We must take comfort from such assurances as the Minister has been able to give and hold the Government to them. This is the Government’s Bill, resolutely free of any outside influence. As a patriot, I can only hope—though I am afraid, without much optimism—that it will bring benefits, in some way, commensurate to its real and painful cost.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise with a heavy heart, given the lack of further amendment, to this dreadful, international law-busting Bill. I note that in the other place, the SNP twice used procedural Motions to delay it by 15 minutes each time. I applaud them for that, and I am not going to take up the same length, but I am going to take a moment to mark this historic occasion.

Your Lordships’ House has put a lot of work into trying to make the Bill comply with international law, with basic moral laws and with the principles of justice and fairness. The noble Lord, Lord Anderson of Ipswich, earlier today said:

“Its costs will be measured not only in money but in principles debased—disregard for our international commitments, avoiding statutory protections for the vulnerable, and the removal of judicial scrutiny”.


Nothing has changed in the Bill in the last few hours.

I note that Amnesty International this evening warned airline companies that many members of the public take an extremely negative view of the content of the policy. Those were really unnecessary words, because no company of any repute whatsoever is going to take part in implementing this dreadful policy. That is a measure of the Bill and the disgraceful, despicable actions it represents.

I am disappointed to see the almost empty Benches around me. I note that the Liberal Democrat Benches are here, having played their part in trying to stop the Bill at Second Reading, and I commend them for that action that the Green group supported. They are still here to the bitter end.

We heard from the Minister, we will hear tonight, and no doubt will keep hearing in the coming days that “Well, we’re the unelected House”. That does not mean that this House is without moral or legal responsibilities. I have asked the House a number of times: if not now, when? What will it take to make this House say, “Here we take a stand”?

We have had the abomination of the Elections Act, the elements of a policing Act that targeted Gypsy, Roma and Traveller people explicitly. We have had multiple indefensible restrictions on the right to protest. Now, we are letting through an attack on some of the most vulnerable, desperate people on this planet. What more will we let through? I suggest to noble Lords as they leave this Chamber tonight to ask themselves that question.

With a desperate, flailing government party bereft of ideas and philosophy and without principles, this House will keep being tested. I ask these empty Benches: you might be waiting for an election, but what kind of a country will it be if you do not stand up now?

Safety of Rwanda (Asylum and Immigration) Bill

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments
Monday 22nd April 2024 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

At end insert “, and do propose Amendment 3J in lieu—

3J: Clause 1, page 2, line 31, at end insert—
“(7) The Republic of Rwanda may be treated as a safe country for the purposes of this Act only once the Secretary of State, having consulted the Monitoring Committee formed under Article 15 of the Rwanda Treaty, has made a statement to Parliament to that effect.
(8) The Republic of Rwanda must cease to be treated as a safe country for the purposes of this Act once the Secretary of State has made a statement to Parliament to that effect.””

[Lord Anderson of Ipswich (CB)]

My Lords, I beg to move Motion A1 as an amendment to Motion A. I do so in the unavoidable absence of the noble and learned Lord, Lord Hope of Craighead, who tabled the previous versions of Amendment 3 and has been good enough to approve this one.

We are in the endgame now. We will, this week, have a law that provides for the offshore processing and settlement of asylum seekers in Rwanda. Its benefits remain to be seen. Its costs will be measured not only in money but in principles debased—disregard for our international commitments, avoiding statutory protections for the vulnerable, and the removal of judicial scrutiny over the core issue of the safety of Rwanda. That is now a fact, and there is nothing more we can do about it.

But there is a further principle, as precious as any of those, to which we can still hold fast. One might call it the principle of honesty in lawmaking. I presume on your Lordships’ patience this evening because we have it in our power to reinstate that principle without damaging the purpose of this Bill or delaying its passage any further. We are concerned with the safety of Rwanda, both in the present and in the future. This Bill is honest about neither.

The present position is governed by Clause 1(2) of the Bill, which

“gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”,

yet there has been no statement even by the Government that Rwanda is currently a safe country, as defined in Clause 1(5). The Minister said just now—I noted his words; they are the same words he used last Wednesday—that

“we will ratify the treaty in the UK only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty”.—[Official Report, 17/4/24; col. 1033.]

This has not yet happened. Against the background of what the Supreme Court described on the evidence before it as

“the past and continuing practice of refoulement”,

those obligations include, by Article 10(3) of the treaty, the agreement of an “effective system” to ensure that refoulement no longer occurs. The Minister has repeatedly declined the invitations of the noble Lord, Lord Kerr, to confirm that this system—a precondition for the safety of Rwanda—is fully set up and ready to go. Neither have we heard anything from the monitoring committee. While the Minister’s confidence is comforting up to a point, we are simply not in a position to make the judgment this Bill imputes to us.

The Bill’s treatment of the future is still further from reality. Parliament is asked to declare that Rwanda will always be a safe country, even if the progress made since the genocide of the 1990s—and one can only commend Rwanda on that—should ever falter or go into reverse. Decision-makers, immigration officials, courts and even the Secretary of State are bound by Clause 2 to treat Rwanda conclusively as safe in perpetuity.

Bluntly, we are asked to be complicit in a present-day untruth and a future fantasy, by making a factual judgment not backed by evidence, then by declaring that this judgment must stand for all time, irrespective of the true facts—this in the context not of some technical deeming provision in the tax code but of a factual determination on a matter of huge controversy on which the safety of human beings will depend. This is a post-truth Bill. To adapt a phrase we have often heard from the noble Lord, Lord Norton of Louth, it takes the culture of justification, which is a trademark of this House, and replaces it with a culture of assertion. It takes hopes and rebadges them as facts. It uses the sovereign status of this Parliament as a shield from scrutiny, and it makes a mockery of this Bill.

My amendment addresses first the present and then the future. The first part, proposed new subsection (7), requires the Secretary of State to tell us when, in his judgment, Rwanda is safe. It is this statement, not the judgment we are supposed to be reaching tonight, that will determine when the flights may lawfully begin. He has the detailed evidence on this. Despite our best efforts, we have had only scraps.

In previous versions of the amendment, this ministerial statement on the safety of Rwanda has been conditional on a favourable opinion from the Government’s own monitoring committee, established under the treaty, which we are told is already operational and which is ideally placed to assess the evidence. It has been objected, on previous occasions, that the monitoring committee should have no more than an advisory role. The noble and learned Lord, Lord Hope, and I have listened and have revised this amendment, which now provides only for the monitoring committee to be consulted. The statement on safety would be purely for the Secretary of State.

The noble and learned Lord, Lord Falconer, asked the Minister last Tuesday to confirm that

“before the Government are satisfied that Rwanda is a safe country, they will seek the views of the monitoring committee”.—[Official Report, 16/4/24; col. 900.]

No such assurance was forthcoming. I cannot say why not; perhaps we will get an assurance this evening. Failing that, this amendment would write one into law.

The second part of my amendment, proposed new subsection (8), deals with the future. The noble and learned Lord, Lord Hope, pointed out the problem in these terms:

“no provision is made anywhere in the Bill for what should happen if the facts change and everyone can see that Rwanda is no longer safe”.—[Official Report, 16/4/24; col. 902.]

Sir Jeremy Wright, Sir Bob Neill, and Sir Robert Buckland—none of them lefty lawyers, the last time I checked—have made the same point in the Commons debates. The Minister indicated last week that if the Government thought Rwanda had become unsafe, there might be some unspecified “parliamentary occasion” to mark that development, but of course no such occasion, other than the passage of a full Act of Parliament, could do the trick. I think that was effectively acknowledged by the Minister in the Commons this afternoon.

This assumption of perpetual parliamentary infallibility is an embarrassment and a nonsense. Fortunately, there is an alternative, which presents not the slightest threat to what the Government are seeking to achieve. Proposed new subsection 8 would give the Secretary of State an untrammelled power to decide in the future that Rwanda is no longer a safe country. Such a decision would release all decision-makers, including himself, from a legal fiction that makes the law look like an ass and those who make it asses.

So there is a speedy and effective way to reinstate the principle of honesty in lawmaking. To quote the parting words of Sir Robert Buckland, who rebelled this afternoon, alongside Sir Jeremy Wright, “Sort this out now”. I persist in the hope that reason may yet break out in the Minister’s response. If it does not, I propose to test the opinion of the House. I beg to move.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

No, I will not. That is an operational matter; we are discussing the amendments in ping-pong.

[Lord Anderson of Ipswich (CB)]

I thank all noble Lords who have spoken to my Motion A1. Perhaps I may make two short points in response. First, I say to the noble Lord, Lord Hodgson of Astley Abbotts, who knows how much I appreciate the work he does in this House and its committees, that a vote for this amendment is not a vote for delay. It simply gives the Secretary of State a power to declare Rwanda safe, having consulted his monitoring committee. He could do that tomorrow if he had the evidence for it. If he does not have the evidence for it, how can he expect us to do it tonight?

Secondly, I thank the Minister for his measured response, not to mention the best laugh of the evening, and for the additional scrap of information concerning the Rwandan law, I assume the asylum law, that he says was passed on Friday. I am afraid that it is the first I have heard of that. I do not know how many of us in the House have had an opportunity to study that law. He knows that these scraps fall far short of the comprehensive picture that we would need if we were seriously to make our own judgement that Rwanda is safe and that the concerns identified by the Supreme Court and our own International Agreements Committee in great detail, only in January, have been satisfied.

In a less frenetic political environment, this common-sense amendment or something like it could, I am sure, have been hammered out between sensible people around a table. Sadly, that does not appear to be the world that we are in. I am afraid that I see no alternative to pressing Motion A1 and testing the opinion of the House.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Anderson of Ipswich Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

9: Clause 2, page 2, line 34, at end insert “unless presented with credible evidence to the contrary”
Member's explanatory statement
The amendments to Clause 2 in the name of Lord Anderson of Ipswich would allow the presumption that Rwanda is a safe country to be rebutted by credible evidence presented to decision-makers, including courts and tribunals.

[Lord Anderson of Ipswich (CB)]

My Lords, I rise to move Amendment 9 and address Amendment 12 in my name and those of my noble friend Lord Carlile, the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord Clarke of Nottingham. I will be brief, because the equivalent amendments were discussed in detail in Committee. I am also very grateful to my noble and learned friend Lord Hope of Craighead for how he has dealt with pre-emption, which, your Lordships willing, may allow both groups of amendments to stay alive.

Amendment 9 would allow Ministers, officials and courts to depart from the presumption that Rwanda is safe when presented with credible evidence that it is not. Amendment 12 would remove various detailed barriers to that course. Their combined effect is to reverse two of the most revolutionary—I do not use that word in a positive sense— aspects of the Bill. They are the requirement for decision-makers, including courts, to stop their ears to any evidence that does not agree with the Government’s position and the requirement that they should do so for an indefinite period, even if things in Rwanda—as we all hope that they do not—take a turn for the worse.

If noble Lords are in any doubt about how truly remarkable Clause 2 is, I invite them to look at subsection (4). It does not matter how compelling your evidence is of what could happen to you and people like you when you get to Rwanda, it must not even be considered if it questions the proposition that Rwanda is safe.

Subsection (5) sets out the legal principles that have to be ignored to make this clause work—not just the Human Rights Act and international law but

“any other provision or rule of domestic law (including any common law)”—

an insight into the sheer range of legal protections, ancient and modern, that may have to be disregarded in the interests of avoiding the impartial scrutiny of the courts.

If Rwanda is safe, as the Government would have us declare, it has nothing to fear from such scrutiny, yet we are invited to adopt a fiction, to wrap it in the cloak of parliamentary sovereignty and to grant it permanent immunity from challenge—to tell an untruth and call it truth. Why would we go along with that? Clause 2 takes us for fools. Subject to anything that the Minister may say, when these amendments are called, I fully expect to test the opinion of the House. I beg to move.

[Lord Blunkett (Lab)]

My Lords, I rise to support the noble Lord, Lord Anderson of Ipswich. I am glad that this evening I have started to understand the processes of the House of Lords, having been here only eight years. Therefore, I will not speak to Amendment 6, which had to be withdrawn in order to vote on Amendment 7, even though Amendment 6 was in group three, but there we go.

I can be even briefer than I intended to be, by just saying that when something is a nonsense, it remains a nonsense at whatever stage we happen to be voting on it. Crucially, in terms of what the noble Lord, Lord Anderson, has rightly said, when circumstances change, most people change their minds. If minds are not allowed to be changed when circumstances change, then we are all extremely foolish.

I heard the noble Lord, Lord Howard, on the radio this morning explaining in great detail why Parliament had primacy over the courts. In many respects, as with the doctrines of Lord Jonathan Sumption, I agree. However, when the Government step outside the norms of international conventions which Parliament has ratified and signed up to, then the courts obviously continue to have a substantial role, because those are the checks and balances we have built in.

This evening, we are trying to make sense of a nonsensical piece of legislation. No doubt the House of Commons will just nod through the Government’s rejection of these amendments, but in times to come, when historians look back, I think they will ask: “Where were you and what did you do?” If you cannot answer that in a way that makes you comfortable about your grandchildren seeing it, then do not do it.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I was about to answer the noble Baroness’s questions, because safeguarding arrangements are set out in detail in the standard operating procedure on identifying and safeguarding vulnerability, which states that, at any stage in the refugee’s status determination and integration process, officials may encounter and should have due regard to the physical and psychological signs that can indicate that a person is vulnerable. The SOP sets out the process for identifying vulnerable persons and, where appropriate, making safeguarding referrals to the relevant protection team.

Screening interviews to identify vulnerability will be conducted by protection officers who have received the relevant training and are equipped to competently handle safeguarding referrals. The protection team may trigger follow-up assessments and/or treatment as appropriate. In addition, protection officers may support an individual to engage in the asylum process and advise relevant officials of any support needs or adjustments to enable the individual to engage with the process. Where appropriate, the protection team may refer vulnerable individuals for external support, which may include medical and/or psycho-social support or support with their accommodation. Where possible, this should be with the informed consent of the individual.

As regards capacity, of course it will be in place. The policy statement sets out at paragraph 135:

“In line with our obligations under the Refugee Convention and to ensure compliance with international human rights standards, each Relocated Individual will have access to quality preventative and curative primary and secondary healthcare services that are at least of the standard available to Rwandan nationals. This is provided through a comprehensive agreement between the Government of Rwanda and medical insurance companies for the duration of 5 years and through MoUs with hospitals in Kigali”.


I also say at this point that it would be in the best mental health interests of those seeking asylum who are victims to seek asylum in the first safe country that they come to. Why would they risk their health and mental health crossing the channel in much more grave circumstances than they need to?

Noble Lords will know that over 135,000 refugees and asylum seekers have already successfully found safety in Rwanda. International organisations including the UNHCR chose Rwanda to host these individuals. We are committed to delivering this partnership. With the treaty and published evidence pack, we are satisfied that Rwanda can be deemed a safe country through this legislation. I would ask the noble Lord to withdraw his amendment.

[Lord Anderson of Ipswich (CB)]

I thank all noble Lords who have participated in this fast-paced debate, and for the generous and constructive contributions that we have heard from all corners of this House. I shall not dwell on them individually, but I will single out the contributions that we heard from the noble Baronesses, Lady Lister and Lady D’Souza, and the noble Lord, Lord Cashman, on the subject of torture. Although my amendments are broader than theirs, theirs serve as a reminder that even evidence of widespread torture would be off limits if Clause 2 were not amended as they and I wish.

I say to the noble Lord, Lord Murray, that I am delighted by what he says he has seen in Rwanda. However, with great respect to him, the points that he makes in no way remove the desirability of ensuring that, should protections not prove to be adequate—including, for example, protections against the risk of refoulement contrary to the terms of an agreement, as we saw when the Rwanda/Israel agreement was in force—the decision-makers and courts should be able to take those matters into account. That is all that these amendments contend for.

I agree with the noble Lord, Lord Horam, that it is operational measures that will make the difference; he must be right about that. Those are the sorts of measures that were identified by the International Agreements Committee in its list of nine or 10, and in Article 10(3) of the treaty. As the noble Lord, Lord Kerr, pointed out, these will be unfinished business even when the treaty is ratified. The purpose of the courts is simply to check that those measures meet the minimum thresholds laid down by law.

The Minister made the point that the concerns expressed by the Supreme Court were limited to specific issues regarding refoulement and suggested that, had they not been resolved already, those issues would be easily resolved in the near future. The Minister asks us to take a good deal on trust. I understand that a letter has been circulated this afternoon; it certainly did not reach me. Whether that includes, for example, full details relating to the Rwanda asylum Bill, which nobody seemed to have seen when we debated this in Committee, and whether it contains full details of the arrangements to ensure non-refoulement, which are referred to in Article 10(3) of the treaty, I cannot say.

[Lord Scriven (LD)]

Speaking for myself, I would just say in answer to the noble Lord’s questions that the answer is no.

[Lord Anderson of Ipswich (CB)]

I am grateful. I should say in fairness to the Minister that I did have a letter about Northern Ireland. It did not touch on those issues.

I acknowledge the confidence with which the Minister defended the position on the ground in Rwanda. This is all the more reason to accept these amendments. The more confident the Government are in the safety of Rwanda, the less they have to fear. For these reasons, I am minded to test the opinion of the House on my amendment.

--- Later in debate ---

Moved by

[Lord Anderson of Ipswich]

12: Clause 2, page 2, line 41, leave out subsections (3) to (5)
Member’s explanatory statement
The amendments to Clause 2 in the name of Lord Anderson of Ipswich would allow the presumption that Rwanda is a safe country to be rebutted by credible evidence presented to decision-makers, including courts and tribunals.

[Lord Anderson of Ipswich (CB)]

My Lords, I would like to test the opinion of the House.

Investigatory Powers (Amendment) Bill [HL]

Lord Anderson of Ipswich Excerpts

3rd reading
Tuesday 30th January 2024 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, first, I thank the Minister and his team for the liaison and the work we did together to try to meet all our concerns about the Bill. I also thank him for giving me the excitement of my life in that I had an amendment accepted—for the first time in 14 years. That is a pretty good strike rate, is it not? I was pleased about that as well.

We on the ISC are very happy that the Bill is needed. However, as the Minister knows, we are still concerned that there is insufficient acceptance of the fact that parliamentary scrutiny is required by the ISC more broadly in this and a number of other areas. I am sure this will be brought up in the other place; otherwise, I am pleased that we have moved this Bill forward at pace.

[Lord Anderson of Ipswich (CB)]

My Lords, I echo all the thanks that came from the Minister. I do not think I can add to his list, but I certainly endorse everything he said.

Bills of this nature can be controversial. We are seeing this in some other parts of the world at the moment. That was not the case in your Lordships’ House. That is testimony to the care with which the Bill was prepared, the civilised way in which it was debated and the openness of the Government to some of the important points made during our debates. I single out in particular the work of the Intelligence and Security Committee for the great scrutiny that it applied to it.

If I may, I will depart briefly from the studied impartiality associated with the Cross Benches. With the Government and Opposition so closely aligned on a Bill, it was particularly useful that we heard from the Liberal Democrats—with their sometimes annoying but rather necessary process of probing amendments. They caused everyone to think carefully about what we were doing. All in all, it was a happy experience for me. I hope that this is a good model for future Home Office Bills.

[Lord Fox (LD)]

My Lords, having been cleared to annoy your Lordships’ House, I will do my best to do so.

This Bill started in your Lordships’ House and now heads to the Commons. Its primary purpose of enabling the intelligence services to better build their data models and teach their AI systems has been left completely unmolested by your Lordships. However, other parts of the Bill have attracted a fanfare of concern from certain external parties—particularly the large platforms. Whether the Government and Apple are at cross purposes or the Minister really is out to get it, we in your Lordships’ House were unable to muster sufficient traction to find out or clarify. It is now up to the MPs if they choose to pick up that particular baton.

There was also an unresolved issue around the triple lock and the Prime Minister’s role when they might be in conflict. Again, this has moved from our orbit. I hope the tenacity of the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, might still be involved somehow between here and the other place. The Minister raised the important issue of legislative consent. I hope he is successful in these negotiations.

I echo what other noble Lords have said. This has been a well-mannered and constructive process of discussion, with everybody moving in the same direction, albeit at different speeds.

I thank the Minister and the team he named for their time, availability and openness in our discussions. I also thank all the many external organisations and individuals who took time either to meet and brief or to send information which helped inform our debate. The discussion was greatly enhanced by the noble Lords, Lord Coaker and Lord Ponsonby, from the Front Bench, and by colleagues on their Benches, as well as the Cross Benchers. They played a pivotal role in our discussions.

Finally, I thank the home team: my colleague, my noble friend Lord Strasburger, and, most of all, Elizabeth Plummer in the Lib Dem Whips’ Office, without whom nothing is possible.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Monday 29th January 2024 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, the policy of offshoring asylum seekers for assessment and resettlement abroad will indeed be costly, to judge from the down payment already made. Its likely deterrent effect is at best uncertain. However, as a lawyer, I start by acknowledging three things. The policy was given statutory force in the Illegal Migration Act, which we passed last year. It is consistent in principle with the refugee convention, which does not oblige us to settle asylum seekers here, but only to avoid sending them to places where their lives or freedoms are threatened. The principle was not called into question by the Supreme Court’s recent ruling.

The only issue that remains is safety. This Bill, said the Minister in the Commons,

“puts beyond … doubt the safety of Rwanda”.—[Official Report, Commons, 12/12/23; col. 751.]

How could it? The Supreme Court has already found that Rwanda operates a profoundly dysfunctional asylum system. We know from our own International Agreements Committee, whose conclusions we supported last Monday, that work still needs to be done to build institutions, change attitudes and monitor compliance. A solution may be within our grasp, but it is not a legal fiction, still less a legal fantasy. A way must be found of determining whether Rwanda is and will remain safe in reality.

When we are concerned about the safety of a country, we often consult the Foreign Office travel advice. Expertly informed and responsive to events, it is a valuable resource. However, in expecting Parliament to come to a judgment, in the words of the Bill,

“that the Republic of Rwanda is a safe country”,

the Bill makes no provision for expert scrutiny, second thoughts or revision of that judgment. Flattering as it may be for some of us to be treated as infallible, to cast Parliament as decision-maker in this changeable and fact-specific context is fraught with constitutional danger. If we are persuaded to take on that role, we will surely need, at least—as the noble Lord, Lord Kerr, has hinted—an independent body on the ground to tell us when the deficiencies already identified have been remedied, and a mechanism for ensuring that, when conditions change, the verdict can change.

Ouster clauses—even partial ousters such as those in Clause 4—are among the most fundamental attacks on the rule of law because they challenge, as the noble Lord, Lord German, said, Dicey’s first principle. Indeed, more impressively still in my book, they challenge the first principle of my noble friend Lord Hennessey that nobody—not even the Government—is above the law. However, the very seriousness of these issues means that we owe the Commons the courtesy of our careful consideration of them. For that reason, I will not support the amendment in the name of the noble Lord, Lord German, tonight.

Finally, I turn to Clause 5, with its proposed exclusion of the right to seek interim measures from the Strasbourg court. I view with dismay the proposal to defy successive rulings of the court, whose opinion on the matter is decisive under Article 32 of the ECHR, to the effect that these measures are binding on the states party to the convention. As we acknowledge in our own legal systems, and have previously acknowledged in this context too, the effective adjudication of any case can depend on a workable system of interim measures. Perhaps the Minister will tell us whether interim measures will be a feature of the new Rwandan asylum law, which, as far as I am aware, no one has yet seen.

We did, it is true, in the end accept Section 55 of the Illegal Migration Act, but that was presented as a negotiating ploy—perhaps a productive one, since the court is now in the course of improving its procedures for interim measures. This clause, however, is different. No such conditions are mentioned in it. The crocodile, having devoured the bun offered by the international court, now proposes to kick it into the water with a casual swipe of its tail. Some will say that this pass is sold, but I hope that, if only out of self-respect, your Lordships will push back hard at this casual dismantling of international protections that are as necessary now as they ever were.

Investigatory Powers (Amendment) Bill [HL]

Lord Anderson of Ipswich Excerpts

Report stage
Tuesday 23rd January 2024 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I know that the noble Lord, Lord West, will want to speak to his own amendments, but, perhaps for the sake of good order, I could comment relatively briefly on government Amendment 14 before he does so.

I entirely accept what is said in the explanatory statement, that the amendment is intended to ensure that “unwanted cases” are not brought

“within the definition of ‘communications data’ in section 261 of the Investigatory Powers Act 2016”.

That is a good objective, and I applaud the sentiment behind it. I also accept that the amendment may well be an improvement on the original Clause 12. My concern is that the wording used at the end of the amendment may inadvertently leave that definition broader than it should be, putting within the definition of “communications data” material that should plainly be classed as content.

Proposed new subsection 5B(b) is intended to limit the categories of content defined in new paragraph (a) which are classed as “relevant subscriber data” and thus as communications data. Instead of defining subscriber data tightly, by reference to information identifying an entity or the location of an entity, which would be reasonable, the limiting words in new paragraph (b) provide, more loosely, that it should be

“about an entity to which that telecommunications service is … provided”.

That is a wide formulation indeed if you apply it to something such as Facebook or an online dating site. The information that customers may be required to provide to initiate or maintain their access to such services is likely to be very much broader than simply who and where they are. For example, I have it on the best authority that, in the case of a dating site, this information may, for example, include a full online dating profile, which sounds very like content to me. It would be most unfortunate if the wording of new paragraph (b) were to result in an interpretation of this clause—for example, by police reading it in good faith—than was far broader than was intended.

I offer more than the conventional gratitude to the Bill team, who have engaged with me intensively on this issue in an extremely short timescale. It is too late to seek an amendment to Amendment 14, but the Minister would help us and law enforcement out if he could confirm, perhaps in response to this intervention or in his own time, that the aim of Clause 12 in its amended form is to class as communications data only information which is truly needed to obtain or maintain access to a telecommunications service—traditional subscriber data such as name, location and bank details—and that there is no intention to cover information provided as part of using the service, such as the online dating profile that you might be asked to fill out to operate or fully activate an account.

[Lord West of Spithead (Lab)]

My Lords, I rise to speak to Amendments 15 to 20. In Committee, I moved amendments seeking to remove Clause 13 and its associated schedule. This was to retain the current arrangements, which wisely restrict a number of public authorities from being able to compel the disclosure of communications data from telecommunications operations. Parliament restricted this power in the original legislation because it considered it to be potentially very intrusive.

What this means is that, at present, authorities such as the Environment Agency or the Health and Safety Executive are required to take further procedural steps to compel disclosure of communications data. They must obtain an authorisation under the current IPA, a court order or other judicial authorisation, or under regulatory powers in relation to telecommunications or postal operators, or they must obtain the communications data as the secondary data as part of a valid interception or equipment interference warrant.

The Bill seeks to remove that requirement for further procedural steps in relation to a wide range of public regulatory authorities. The Government’s argument for removing these restrictions is that a broader array of communications now fall into the category of communications data and a wider number of organisations now constitute telecommunications operators. As a result, the current restrictions prevent some regulatory authorities from acquiring the information necessary to exercise their statutory functions in a way that was not anticipated at the time of the original legislation.

These organisations have argued that this is particularly relevant to bodies with a recognised regulatory or supervisory function which would collect communications data as part of their lawful function but are restricted under the current Act if their collection is not in service of a criminal investigation; in particular, the changes focused on improving the position of certain public authorities responsible for tax and financial regulation, the powers of which were removed in 2018 as a result of rulings by the European Court of Justice. The ISC recognises that such bodies much be able to perform their statutory function effectively; however, we have been told that the Bill delivers only the urgent, targeted changes needed, and we have not thus far been presented with the case for that.

This was a highly scrutinised issue during the passage of the original Act. Parliament rightly ensured that the power to gather communications data was tied to national security and serious crime purposes only, to avoid impinging on the right to privacy without very good reason. We should not lightly brush that aside.

There have been a number of reported incidents of the intrusive use of investigatory powers by local councils and other public authorities for purposes that are subsequently deemed neither necessary nor proportionate; for example, things such as dog mess. The Minister said in Committee that the clause

“applies to a relatively small cadre of public authorities in support of specific regulatory and supervisory functions”.

Yet in response to my question on which bodies would see their powers restored, he said that

“it is not possible to say with certainty how many public authorities have some form of regulatory responsibilities for which they may require data that would now meet the definition of ‘communications data’”.—[Official Report, 11/12/23; col. 1759.]

How can it be right to expect Parliament to reintroduce sweeping powers for a wide range of public bodies when a previous Parliament deemed that that was too intrusive—and when we cannot even be told which bodies they will be? Noble Lords will need to be sufficiently satisfied that these powers are to be given to bodies that cannot function without them; this cannot be a case of just giving powers back by default. I urge the Minister to consider this further. As it stands, we have not been given the information, or a convincing case, to persuade Parliament of the need for such a complete about-turn. The ISC will continue to pursue this amendment unless robust assurance can be provided that these powers will be restored in a sufficiently limited and targeted way.

Amendment 17 and its two consequential amendments seek to remove the ability of the agencies to internally authorise the use of this new, broader power to obtain internet connection records for target discovery. My amendment would require the agencies to seek approval from IPCO, thereby ensuring proper oversight. As I noted in Committee, Clause 14 creates a new, broader power for the agencies and the NCA to obtain ICRs for the purpose of target discovery. It represents a significant change from the current position because it removes the current requirement that the exact service used, and the precise time of use, be known. Under these new provisions, the agencies will be able to obtain ICRs to identify which person or apparatus used internet services in a period of time—a far broader formulation that will capture a far broader number of individuals.

As I also noted previously, the ISC agrees with broadening the power; what it does not agree with is that there is no oversight of it. The principle remains that increased powers must mean increased oversight. This new, expanded power is potentially very intrusive: it allows the agencies to obtain ICRs from a range of internet services over a potentially long period of time, and they could therefore potentially intrude on a large number of innocent people who would not have been captured previously.

It is essential in a democracy that there are appropriate safeguards on such powers, but in all cases relating to national security and economic well-being, the agencies are able to authorise use of this newly expanded, broader power internally. They make the assessment as to whether it is necessary and proportionate; there is no independent oversight of the agencies’ assessment. The Minister argued in Committee that the ISC amendment inserts a disproportionate limitation on the agencies’ ability to use condition D, as the Government

“do not assess that the new condition creates a significantly higher level of intrusion”.—[Official Report, 11/12/23; col. 1761.]

With respect, the ISC not only disagrees with this assessment but finds it incomprehensible. This is about depth and breadth. The new condition D may not represent a new depth of intrusion as ICR requests under the new regime will still return the same type of information, but it certainly represents a much wider breadth of intrusion as a far greater number of innocent internet users’ details will be scooped up by these ICR requests.

The Government may argue that, because those individuals’ details will not be retained once they have been checked and found not to be of intelligence interest, this is therefore not an intrusive power. Again, with respect, this is not an answer that Parliament or indeed the public can or should be satisfied with. I doubt any individual would feel that their privacy had not been intruded on if they had been scooped up just because they had not been retained, particularly when the retention of details is currently contingent entirely on the judgment of the agencies themselves, with no external input on whether the judgment is proportionate. The ISC very firmly believes that the new condition is more intrusive, and therefore greater oversight is required to ensure the power is always used appropriately.

Oversight will act as a counterbalance to the intelligence community’s intrusive powers and provide vital assurance to Parliament and the public. This amendment and my two linked amendments therefore remove the ability of the agencies to authorise use of this power internally. The agencies would instead be required to seek the approval of an independent judicial commissioner from IPCO to authorise the obtaining of ICRs under this new, broader power. This strikes the right balance between security and privacy and minimises any burden on the agencies.

I move on to Amendment 18 in relation to the new same broader target discovery power in Clause 14. This amendment is to limit the purposes for which this new power would be used. As I outlined previously, target discovery has the potential to be a great deal more intrusive than target development as it will inevitably scoop up information of many who are of no intelligence interest. This is why we must tread very cautiously in this area and be quite satisfied of the need for the power, that the power is tightly drawn and limited, and is properly overseen.

The ISC agrees with the noble Lord, Lord Anderson, who, in his excellent report reviewing the Government’s proposal for this Bill, supported the need for this change. The ISC has considered the classified evidence and recognises that due to technological changes the current power is less useful than envisaged due to the absolute precision it requires. However, as this House also recognised, Parliament deliberately imposed a high bar for authorising obtaining internet connection records, given their potential intrusiveness.

The noble Lord, Lord Anderson, also recommended, therefore, that the purposes for which this new broader target discovery power could be used be limited to national security and serious crime only, and that use of it should be limited to the intelligence community. However, the Bill as drafted departs from his recommendations in both respects. Not only does it include the National Crime Agency as well as the intelligence community, but it allows the intelligence community to use the new, broader target discovery power for a third, far less-defined purpose of:

“the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

In Committee, the Government argued that this decision had been taken because it is consistent with the statutory functions of the agencies and Article 8 of the European Convention on Human Rights. That is, of course, true. It is consistent, but that is not an argument in favour of simply transporting it here. Not every intrusive power should be available for every purpose that the security services have. Given the potential intrusiveness of this new power, it must be constrained appropriately and the purposes for which it can be used must be crystal clear.

However, what is not yet at all clear is exactly what critical work must be enabled under the umbrella of “economic well-being” as it relates to “national security” which is not already captured under the straightforward national security category. It must be clear exactly what harm would occur if this purpose were not included in the Bill. At the moment, the addition of “economic well-being” serves only to blur the lines between what an ICR can or cannot be used for, something which Parliament should not accept. Therefore, in addition to requiring independent judicial oversight, which is the subject of a separate amendment, this amendment seeks to prevent the agencies from using this newly expanded power for the purposes of economic well-being relating to national security. This will ensure that the rather vague concept of economic well-being is not being used as a catch-all justification for the exercise of these powers.

The agencies will of course still be able to use this power in relation to national security more broadly, and in urgent cases of serious crime. This is proportionate and indeed more in line with the recommendations of the noble Lord, Lord Anderson. Unless the Minister can provide the House with information as to exactly why it is critical to retain economic well-being for the use of these specific powers, not the agency’s powers more broadly, I urge noble Lords to support my amendment and strike this from the Bill.

--- Later in debate ---

This is a less onerous amendment than that which I put forward in Committee, which sought to ensure that the Prime Minister substantively review any delegated triple-lock warrants. While that may have been preferable, I have noted the Minister’s concern that the Bill provide for the Secretary of State to act as the Prime Minister, and that to insert a review power would therefore require wholesale changes. This amendment requires only notification, not reconsideration, but that will at least ensure that the Prime Minister is aware of every instance in which the communications of elected representatives are being intercepted. I suggest to noble Lords that this is an absolute red line.

[Lord Anderson of Ipswich (CB)]

My Lords, it is a pleasure to follow such a strong and powerful speech, and to agree with so much of it. I will speak to Amendment 40, which is based on my report of last year and repeats an amendment that I tabled in Committee and that was introduced there by the noble and learned Lord, Lord Hope of Craighead, my co-signatory then as now. The amendment has two objectives. The first is to ensure that the third part of the triple lock is not too easily wrested away from the Prime Minister.

We are often told that someone is unavailable when they are travelling, are in a meeting, have stepped out of the office or have simply asked not to be disturbed for the afternoon. Indeed, the noble Baroness, Lady Manningham-Buller, used the word in the first of today’s debates on the Bill, albeit in a different context, to describe the status of a Minister, as she put it, during the night or over the weekend. Nobody suggests that reasons such as these should be sufficient for the third lock of the triple lock to be handed to someone else. Unavailable is simply the wrong word. The public interest, in clear and accessible laws, requires us to use the right word. Using the wrong word and then glossing it by guidance or Statements from the Dispatch Box is not a good alternative. I suggest that the right word is “unable”, and I am delighted that the Intelligence and Security Committee and the noble Lord, Lord West, had the same thought in their Amendments 39 and 43.

The second objective of Amendment 40 is to allow provision to be made for the situation in which a Prime Minister is available to apply the third lock but might be considered, or consider himself, unable to do so by reason of conflict of interest. This could be the case if the communications in question were addressed to or from a Prime Minister’s sibling in Parliament. I see that the noble Lord, Lord Johnson of Marylebone, has just left his place. It could be the case if those communications were addressed to or from the Prime Minister himself or herself. Nobody doubts that the agencies currently have the power, and will continue to have the power after the Bill is passed, to request a Prime Minister’s communications to be intercepted. Nor is there any mystery about what will happen if such a request is ever made. It will be put to a Secretary of State for authorisation—presumably the Home Secretary or the Foreign Secretary, depending on the context. If that authorisation is granted, a judicial commissioner—presumably the most senior of them, the Investigatory Powers Commissioner—will be asked to approve it. So far, so uncontroversial.

The issue that arises is what should happen next. Under Clause 21, the request must be put before the Prime Minister unless it happens that he is ill or away from secure communications, in which case the third lock can be passed on to another Secretary of State and the Prime Minister’s communications can be intercepted without his knowledge. A precedent for the delegation of this most sensitive of powers already exists; indeed, it exists in the text of this Bill. But what if the Prime Minister is available? In such a case, the third lock must, under Clause 21, be left in the hands of the Prime Minister himself. He is statutorily barred from passing it on to anyone else, even if he—or, let us say, the Cabinet Secretary on his behalf—took the view that he is unable to take the decision for reasons of conflict of interest. That is notwithstanding the fact that conflict of interest, as the noble and learned Lord, Lord Hope, said in Committee,

“surely is a reason why a Prime Minister, although available, should not exercise the power”.—[Official Report, 13/12/23; col. 1902.]

That principle is so important that perhaps the undoubted practical difficulties to which the noble Lord, Lord West, referred need to take second place to it.

The triple lock was designed to ensure that the communications of parliamentarians could be intercepted only with the consent of the Prime Minister. It was not designed to give the Prime Minister himself an effective veto over the interception of his own communications. Immunities or quasi-immunities of that kind might have their place in some presidential systems, but they seem out of place in a parliamentary system in which the Prime Minister is primus inter pares. However, just such an immunity is perpetuated by Clause 21, and the amendments on this theme from the noble Lord, Lord West, which I otherwise support, do not remedy the situation.

Amendment 40 does not prescribe a detailed solution to this sensitive problem, but it leaves the door open to one. My concern in tabling it was to ensure that we do not legislate in such a way as to prevent a solution being found to the situation in which a conflict of interest arises in circumstances that would be vanishingly rare but that, if they ever did arise, could be of the highest importance to our national security.

I have reflected on what could be done without Amendment 40 if there were serious grounds to intercept a Prime Minister’s personal communications because one of his correspondents or the Prime Minister himself were under suspicion. Perhaps a possible answer would be to wait until the Prime Minister was out of reach of secure communications and then proceed with the interception if the approval of a judicial commissioner and two Secretaries of State could be secured. That is not a very principled or satisfactory answer to the issue of conflict of interest, but it is permitted by Clause 21 and might still be better than a prime ministerial veto. I should say that everything I have said about Clause 21 and interception applies also to equipment interference under Clause 22.

I hoped to generate a debate on this topic by tabling this amendment and, thanks to your Lordships’ indulgence, I have had a chance to do so. I would like to have invited the House of Commons to debate it too, but without the numbers to press this amendment to a vote there will be no such invitation, at least by this route. None the less, I am grateful to the ministerial team and to their shadows in your Lordships’ House and the Commons for discussing this issue with me in a degree of detail. Neither team suggested to me that the prospect of intelligence interest in the communications of a Prime Minister was too fanciful a prospect to be worth considering, although it may be that the two teams have different examples in mind of why it is not. However, I detected a developing sense on both Front Benches that the conflict issue might be one for the “too difficult” box.

I will not divide the House, but I close with these questions to the Minister: is it the Government’s position that the Prime Minister, uniquely among members of the Government, should have a veto over the interception of his own communications in circumstances in which the normal authorisation and approval criteria have been met? If so, why? If not, what answer do they have to the issue of conflict of interest?

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow that brilliant exposition by my noble friend of the problem that he tries to deal with in Amendment 40. After yesterday’s slightly more tense proceedings in this House, I have had a pleasant afternoon supporting the Government. In that spirit, I wish briefly to add some words to what has been said by my noble friend.

The notion of conflicts of interest is not a difficult one. Lawyers dealing with extremely complex cases have to deal with that problem more or less every day. It is something with which we are familiar. The notion that a Prime Minister could face a conflict of interest is not ludicrous. If we just look at the way in which proceedings have proceeded so far in the Covid inquiry, for example, we know that the most intense examination is now given to past communications. We are in a different age from the era when Prime Ministers did not use social networking. We are coming to a period when there will be a Prime Minister whose youthful exchanges with his or her friends will be available to public inquiries in the years to come. It is easy to imagine circumstances in which conflicts of interest might occur. For example, there could be conflicts of interest arising from kinship, as my noble friend Lord Anderson mentioned. Conflicts of interest could arise from earlier employment or from books and articles that person has written. We recently had a Prime Minister who has written quite a lot of interesting books but certainly provoked some interest of another kind when he was Prime Minister.

I urge the Minister not to brush aside this issue of conflict of interest, because it could happen, and it is better to anticipate these things than to leave them till later. I ask the Government to take seriously Amendment 40, for the reasons that have been given by the noble Lord, Lord Anderson, so we can return to this matter before the Bill is passed.

Asylum: UK-Rwanda Agreement

Lord Anderson of Ipswich Excerpts

Monday 22nd January 2024 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, the creation of our International Agreements Committee is a rare constitutional highlight of the past five years. I congratulate it on the scrutiny that it provides in the context of a statutory framework that leaves much to be desired and on the decision that it took in May of last year to focus particularly on treaties which are novel or have significant implications for politics or public policy, human rights or expenditure. The UK-Rwanda treaty might be thought to qualify on all those grounds. We can be grateful for the committee’s thorough and perceptive report, and for the opportunity to debate it at a stage when the debate can still be useful.

I also congratulate the British and Rwandan Governments on putting their MoU into the form of a treaty, as the committee recommended, and on starting to address some of the defects identified by the Supreme Court. However, and without doubting the good faith of either Government, it appears that as the Supreme Court anticipated, those defects will not be fully addressed in the short term. The UNHCR, from its position on the ground, spoke last week of the need for

“sustained, long term efforts, the results of which may only be assessed over time”.

That chimes with my experience when reporting, some years ago, on the analogous policy of deportation with assurances. The object of the policy was to enable non-British terrorist suspects to be deported to their countries of origin, even when, without specific guarantees, those countries could not be considered safe. Guarantees were negotiated by way of treaty, MoU or exchange of letters with six countries in the Middle East and north Africa. I travelled to Jordan and Algeria in 2014 to see how they were being implemented on the ground. My conclusion was that, contrary to the views of some lawyers and UN rapporteurs, but consistent with the view of the European Court of Human Rights, such arrangements can, with the right partner, be delivered, at least in the national security context, both effectively and compatibly with international law. Indeed, the mutual legal assistance treaty with Jordan, negotiated by James Brokenshire and Theresa May, was successful in meeting the conditions laid down by the courts for securing the departure of the dangerous extremist Abu Qatada for trial in Jordan. However, to negotiate and, in particular, to implement such an arrangement, particularly a broad-ranging one, requires what my co-author Professor Clive Walker and I described as “the most laborious care”. In the oral evidence that I was invited to give to the committee, I detailed some of the practical obstacles to independent monitoring, even in Jordan where there was a strong political will to make the arrangement work.

I also recall that when I visited Algeria in 2014, the British embassy did not know the whereabouts of any of the nine men whom we had deported there under that policy. Perhaps that is not so surprising, when even in this country it is possible to lose track of some 5,600 asylum claimants whose claims were withdrawn in the year to September 2023. But it is a concerning precedent when one is looking at the risks in Rwanda, including, of course, the risks of refoulement.

The committee has looked at the evidence before it including, heroically, the almost 600 pages of evidence published by the Government on 11 January. It is not satisfied; as the noble and learned Lord, Lord Goldsmith, has said, it has identified 10 further legal and practical steps that would be required to meet the concerns of the Supreme Court, which it does not anticipate will be met in the short to medium term. These include such vital elements as the new Rwandan asylum law and the implementation of arrangements for monitoring and judicial consideration. The noble Lords, Lord Purvis of Tweed and Lord Kerr, have added to the committee’s concerns in their powerful speeches.

The committee proposes that ratification should be delayed until Parliament can be properly satisfied that the protections written into the treaty have been fully implemented in practice. The committee has little to say about the treaty’s companion piece, the safety of Rwanda Bill. May I suggest two respects in which the Bill reinforces the committee’s recommendations?

First, the Bill is due to enter into force on the same day as the Rwanda treaty, which will itself enter into force immediately on ratification by both parties. Planes could, in other words, be in the air the day after ratification. That does rather demonstrate the practical dangers of ratifying prematurely.

Secondly, as the noble Lord, Lord Kerr, has said, the existence and terms of the Bill confirm the general view that the treaty has not yet rendered Rwanda safe. If the treaty were watertight, it could be defended with confidence in the courts, as was the MLAT with Jordan. Yet the Bill goes to considerable lengths to avoid such scrutiny, challenging as it does so the rule of law, the separation of powers between the courts and Parliament, our domestic human rights settlement, our compliance with international law and the Civil Service Code. If the Government were prepared to wait until things are as they need to be on the ground, and if that wait were as short as they claim it would be, none of this damage to our constitutional fabric would be necessary.

In the end, perhaps, it is as simple as this. The Bill seeks to give the status of law to what it calls

“the judgement of Parliament that … Rwanda is”—

not will be or could in the longer term become—“a safe country”. Our own specialist, cross-party committee, the only one in Parliament, has unanimously given us the clearest possible advice that we are in no position to make such a judgment so, for my part, I do not see how in good conscience we could make it. For that reason, I support both Motions in the name of the noble and learned Lord, Lord Goldsmith, and I shall vote for the second one if, as I hope he will, he chooses to test the opinion of the House.

Investigatory Powers (Amendment) Bill [HL]

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 11th December 2023 Lords Chamber

This amendment is similar in intention to an amendment tabled to Clause 2, but this time regarding the powers in new Part 7B. Again, we are trying to understand what the urgent circumstances might be that would require examination of a third-party dataset without waiting for approval from a judicial commissioner, and therefore, as a safeguard, we would like the JC to be immediately notified that an authorisation has taken place. We have debated this to some extent under Part 7A, and I can imagine the crossover, but it would be useful to know if there are any differences between how Part 7A approval and Part 7B approval would be taken under these two circumstances.

[Lord Anderson of Ipswich (CB)]

My Lords, I welcomed this Bill at Second Reading, and the warmth of my welcome has not diminished. However, I am pleased to see so many amendments down to Part 1. As the noble Lord, Lord Fox, has said, the new rules for certain bulk personal datasets do not displace or dilute the currently applicable protections under the Data Protection Act, but they are probably the most operationally significant of the changes that we are looking at, and therefore can only benefit from careful scrutiny of the kind that noble Lords have so enthusiastically invited.

I have one general comment. Despite some of the kind words that were said about my report at Second Reading, I was not asked to design this Bill from scratch, nor to comment on anything as precise as a provisional text. Rather, my task was to assess proposals that were put forward by government and that in some cases evolved during the currency of my review. Although I did run a consultation as part of my review, its value was reduced by the rather limited amount I was able to say about the Part 1 proposals and some of the others. So although I did receive a handful of very helpful responses, there will certainly be points that did not occur to me and to which others were not able to alert me. The Bill is also, of course, in some respects more detailed than my recommendations. I look forward to hearing the Minister’s response to the various amendments in this group.

I will say a quick word about each of the amendments in my own name; there are only two. My probing Amendment 3 I offer to the Government as a Christmas present, as I thought it might suit them. If for any reason they do not like it—and I suspect they may not—then that is up to them; we can hardly force it on them. The background is this: it seemed to me that the question of whether individuals have a low, or no, expectation of privacy might depend in part on the use to which the datasets will be put. If, for example, an agency were prepared to commit to using a dataset only for training a large language model and not for operational purposes, perhaps that might be one of the factors pointing towards a low/no classification. The agencies and the Government politely explained to me—if I paraphrase correctly—that this was not a very practical suggestion, so I did not push it further, save to mention the point in paragraph 3.51 of my report.

Sure enough, the anticipated use of a dataset is not one of the factors listed in new Section 226A(3), where the factors are set out. But turn over the page to new Section 226BA, which deals with category authorisations, and there you see in subsection (3) that a category authorisation may describe a category of BPDs by reference to—among other things—

“the use to which the data will be put”.

My question to the Minister is simply this: if the use to which a dataset will be put can be relevant to the formulation of a category of low/no datasets, then why is it not relevant to the assessment of an individual dataset as low/no or otherwise? The Minister’s answer may be that the list in new Section 226A(3) is not exhaustive and that there is no reason why intended use should not be one of the circumstances taken into account under subsection (2) when considering whether a BPD is low/no. In that case, can he explain why intended use is not mentioned in new Section 226A when it is mentioned in new Section 226BA?

--- Later in debate ---

Given the potential intrusiveness of the new power, it must be constrained appropriately. Therefore, in addition to requiring independent judicial oversight, which is the subject of a separate amendment, this amendment would prevent the agencies using the newly expanded power for the purposes of economic well-being. This would restrict use of the power to national security and, in urgent cases, serious crime, thereby preventing the broadly defined and vague concept of “economic well-being” being used as a catch-all justification for its exercise. This seems a more proportionate response and more in line with the recommendations of the noble Lord, Lord Anderson. Perhaps the Minister could explain to the Committee why this purpose is needed—surely national security is what we should be primarily talking about—and indicate whether he will now reconsider this clause.

[Lord Anderson of Ipswich (CB)]

My Lords, I will make a brief comment on two aspects of Clause 14 which have been developed today and which were considered in my report. Amendments 23 and 25 in the name of the noble Lord, Lord Fox, would restrict the changes relating to internet connection records in Clause 14 to the intelligence services only. The noble Lord correctly noticed that, while I support the use of ICRs for the new target detection purpose in condition D1, I mentioned at paragraph 4.18 of my report that it would be

“open to Parliament to require further safeguards”

and suggested that those safeguards include

“making the extra condition available only to UKIC”—

in other words, the intelligence services—

“at least in the first instance”.

I pointed out a range of safeguards that already apply to ICRs. These are fully set out in the draft addition to section 9 of the code of practice that was helpfully provided in advance of these debates. I also pointed out, by way of mitigation to my proposal that only UKIC should have access, that

“working arrangements … could facilitate the use of UKIC powers in the service of NCA or CTP in particular”.

That is as much as I am told I can say on working arrangements, though noble Lords may be able to use their imaginations.

Clause 14, instead of going for this workaround, opted to give the NCA, though not counterterrorism policing, its own direct access to the new power. It is certainly true that the NCA has primary responsibility for many of the crimes where the new power may prove most useful—in particular, child sexual abuse, where it has strong potential. I will listen to what the Minister says about that, but I think there is no great division of opinion between us on this issue. We are really debating different mechanisms by which the NCA might get access to this material, and although it is not precisely what I suggested, I have no objection to the more direct route taken in the Bill.

I turn to Amendments 21, 24 and 26 in the name of the noble Lord, Lord West of Spithead, which would introduce a requirement for requests by the intelligence services and the NCA to be independently authorised by the Office for Communications Data Authorisations. This would be an exceptional state of affairs for communications data requests by the intelligence agencies. Existing ICR requests are internally authorised and some of those, in particular under condition B and C, will be arguably, as I said in my report, as intrusive as requests under the new condition.

However, the noble Lord has emphasised the undoubted intrusiveness of the new condition and I know from my own correspondence with the ISC that, very much to its credit, it has looked at this issue in considerable detail. Furthermore, I raised the possibility of independent authorisation for such requests in my report. While I said that the full double-lock procedure would be disproportionately burdensome, independent authorisation by OCDA, which is not a possibility on which I commented expressly, sounds as though it could be a more manageable proposition. I have some sympathy with Amendments, 21, 24 and 26. They raise an important issue on any view, and I look forward to hearing what the Minister has to say about them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the three previous speakers in the short debate on this group. There are no opposition amendments in it, so I shall set out some more general questions that arise out of the amendments spoken to.

Why have the Government brought forward the widening powers to obtain communications data when the original Bill did the opposite? Can the Government provide an exhaustive list of the bodies that will be able to use these communications data collection powers? Why are they not in the Bill or the Explanatory Notes? Giving bodies such powers during any criminal investigation appears out of step with the rest of the Bill, which covers investigatory powers for national security or serious crime reasons. Why is this power so broad as to cover any criminal investigation? Given that the double lock exists for most of the powers in the Bill, why have the Government given wide-ranging powers for intelligence authorities and the NCA to self-authorise accessing internet connection records while undertaking subject discovery work? How does this compare to the powers for conditions A, B and C, which cover access to ICRs, for more restrictive purposes? Finally, what will the role of the IPC and the ISC be in monitoring how the new powers are used?

I was particularly interested in what the noble Lord, Lord Anderson, said when he was commenting on the two other speakers in this short group. I, too, will listen with great interest to what the Minister has to say on this, but this is all done in the spirit of exploration, as my noble friend Lord Coaker said. I look forward to the Minister's comments.

Investigatory Powers (Amendment) Bill [HL]

Lord Anderson of Ipswich Excerpts

2nd reading
Monday 20th November 2023 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I thank noble Lords who have referred kindly to my independent review of earlier this year, a short sequel to the much longer reviews, A Question of Trust and the Report of the Bulk Powers Review, that I was commissioned to conduct, with all-party agreement, in advance of the Investigatory Powers Act 2016.

Given the controversy surrounding electronic surveillance at that time, in the wake of Edward Snowden’s disclosures, the IPA had a remarkably smooth parliamentary passage—although I say that as someone who was outside Parliament at the time. I put that down to the detailed preparation that preceded that Bill, including reports from the ISC and from RUSI, and of course to the work of the draft Bill committee, chaired by the noble Lord, Lord Murphy of Torfaen, who I am delighted to see in his place. I remember being questioned by its members, including the noble Lord, Lord Strasburger, and Suella Fernandes MP, as she then was. That committee made 86 detailed recommendations, practically all of which found their way into the Act. How much time and testosterone can be saved—and was saved in that instance—by debating these important issues before a Bill is published in final form.

The IPA replicated and, indeed, enhanced the very considerable powers conferred by its predecessor, RIPA, on our intelligence agencies and police. However, its emphasis on transparency and effective oversight, in particular by the judge-led Investigatory Powers Commissioner’s Office—IPCO—with its excellent technical support, brought it into the modern age. I believe we have seen the tangible benefits of that in recent years; I will give three short examples.

The UN special rapporteur on the right to privacy, who had previously described our arrangements as “worse than scary”, reported in 2018 after an inspection visit to the UK that, thanks to the balance struck by the IPA, the UK

“can now justifiably reclaim its leadership role in Europe as well as globally”.

The English Court of Appeal overwhelmingly rejected an extensive series of challenges to the IPA in August this year, citing the authority of the European Court of Human Rights, which, rather more than the EU’s court in Luxembourg, has shown itself impressively ready to accept the use of bulk collection powers, properly safeguarded.

In addition, judicial approval of warrants, introduced here by the IPA but long familiar in North America, was instrumental in securing our data access agreement with the United States—a world first, which, given the American ownership of so many big internet platforms, is of particular significance to law enforcement on this side of the Atlantic.

Therefore, the IPA has been good for this country, including by helping to secure the international acceptance and co-operation that are ever more essential to the fight against organised crime and threats to national security.

However, the Minister is right to say that in limited areas, the IPA is in need of what I call running repairs. The Home Office invited me earlier this year to look at some of those areas which it had identified as in need of attention. Other parts of the Bill, including elements of Parts 1, 3 and 4, fell outside the scope of my review. In my report published in June, I largely accepted the Home Office diagnosis, although my prescriptions were in some respects different from its. In particular, in relation to the bulk dataset issues that occupy Part 1 of this Bill, I thought it important that the borderline between Part 7 and the proposed new Part 7A of the IPA, concerning datasets in which there is a low or no expectation of privacy, should be patrolled at the moment of decision not just by the intelligence agencies themselves but externally by independent judicial commissioners.

Since my report was submitted in April, there has been a convergence of views on this issue and on others, one of them in relation to the NCA and Clause 14, which was touched on by the noble Lord, Lord Coaker. I am grateful to the Security Minister and to the noble Lord, Lord Sharpe, for our discussions and the open spirit in which they took place.

The Minister knows that it has not always been my habit to give an unqualified welcome to Home Office Bills; judging from the Statement that was debated earlier this afternoon, I cannot guarantee that things will be any different in future.

I understand that Ministers like to come to this place with a few concessions in their back pocket, and there is no harm in that. But too often, elements of the Bills that arrive with us have a lopsided look; one suspects, rightly or wrongly, that they are the opening gambit in a concession strategy, whereby the energy of this House is occupied with the tabling and discussion of amendments, only for the Government eventually to concede what they had a good mind to do all along. This can be both frustrating and counterproductive; those who mistrust the Government see their worst fears confirmed by the initial version of the Bill, while those who trust them are reluctant to express that support, lest the ground be cut from under their feet.

It is to the credit of those concerned that I do not believe that such an approach has been taken with this Bill. No doubt it is capable of improvement; I welcome the challenges that have been made by NGOs and by the noble Lords, Lord Coaker and Lord Fox, not least because I was not able to consult in quite such specific terms as I would have liked on the proposals that were put to me by the Home Office. Indeed, there are a few points that I may seek to probe in Committee. But I consider that the Bill is an honest attempt to strike a fair balance in these difficult areas. We risk reversing the operational gains that it promises if we overload the Bill with unnecessary safeguards, or seek radically to reshape the judgments that it makes.

We need powerful weapons to combat the scourges of hostile state activity, terrorism, fraud, people trafficking and child sexual abuse, and we need to embed them in a strong framework that includes the gold standard of prior judicial authorisation for the most intrusive powers. This Bill gives us both those things, and we should not discard or devalue either.

History suggests that the lifespan of investigatory powers regimes is no more than 15 years or so, and technological developments mean that we are likely to be working towards a more fundamental revision of the IPA by the end of the decade, if not before. My report contains some ideas on what these technological developments are and how the process might be started, but for the time being I am glad that time has been found for this necessary Bill. I am happy to give it my support.

Contest: UK Strategy for Countering Terrorism 2023

Lord Anderson of Ipswich Excerpts

Monday 24th July 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for that. I am not aware of those particular programmes, but they seem to me to make perfect sense. I commend him for his efforts and those of the wider community to which he refers.

[Lord Anderson of Ipswich (CB)]

My Lords, I congratulate the Government on their latest iteration of the Contest strategy, which could justly be described as world-leading. However, terrorist attacks on small venues, such as cafes and village churches, have, happily, barely featured over the last quarter of a century. Is the Minister satisfied that the proposed new statutory duties on those responsible for many hundreds of thousands of such premises to complete terrorism evaluations and to provide terrorism protection training to each worker, on pain of enforcement proceedings by a regulator, are in all respects proportionate?

[Lord Sharpe of Epsom (Con)]

The noble Lord is right to raise this subject. The Government carefully considered the impact on premises and events that may be captured by the forthcoming Bill. It includes ensuring the requirements are proportionate while achieving better public security and without placing undue burden on responsible persons. Obviously, pre-legislative scrutiny will help ensure that we create a strong Bill that is proportionate and not cumbersome or costly for smaller venues. I should like to quote the evidence of Matt Jukes of the Metropolitan Police to the Home Affairs Select Committee in June. He said:

“Having measures in place that ensure that new staff have been briefed and have undertaken very proportionate, 45-minute or so training online, in the same way as they will consider the fire safety plan or food hygiene, feels to me to be proper”.


That would seem to me to make sense.