Product Regulation and Metrology Bill [HL]

Lord Anderson of Ipswich Excerpts

Report stage
Wednesday 26th February 2025 Lords Chamber

[The Senior Deputy Speaker (Lord Gardiner of Kimble)]

My Lords, I must inform the House that, if Amendment 2 is agreed to, I will not be able to call Amendments 3 and 4 by reason of pre-emption.

[Lord Anderson of Ipswich (CB)]

My Lords, I rise not to support the noble Lord, although it is a pleasure to follow him, but to address government Amendments 44 and 61 in this group, which I have signed, together with government Amendment 55, which will be for another day.

The Constitution Committee has already been kindly mentioned by the noble Lords, Lord Sharpe and Lord Hunt. As a member of that committee, I register my appreciation for the fact that the Government have not only listened to the committee’s concerns and to those developed with impressive persistence by the Delegated Powers and Regulatory Reform Committee but have reacted constructively to them. The Henry VIII powers have been greatly reduced in scope and a credible explanation has been given for the small remainder. While the Bill continues to contain uncomfortably wide ministerial powers to make significant policy decisions, the broad duty of consultation in Amendment 61 is a welcome mitigation. The third part of the package—an extension of the affirmative procedure—is another positive step.

It might have been possible to go further, as the Delegated Powers Committee has rightly said. But, for my part, I would not go so far as to support the noble Lord, Lord Hunt, in his—I am tempted to say “wrecking” —Amendment 2. How to avoid the unconstrained use of excessively broad delegated powers is a problem that will not go away. It was raised by this Bill in a particularly acute form. The Government have grappled with it conscientiously and they deserve credit for that.

I have one final thought. It is rather a dry one, I am afraid, but what do you expect from the Cross Benches? I hope that, some day, the relevant committees of this House might have occasion to discuss the constitutional issues around framework Bills and delegated powers with the Government, not only Bill by Bill, as we do at present, but in a more structured and strategic way. Such discussions would give proper weight to the constraints on government but could also draw on the guidance provided by our committees and bodies such as the Hansard Society over many years. Perhaps the Minister will agree, after his generous and productive engagement on this issue, that the goal of a more consistent and principled approach on both sides of the fence might at least be worth pursuing.

[Lord Lansley (Con)]

I shall speak to my Amendment 4 in this group, which, we are advised, would be pre-empted if Amendment 2 were to be passed, by reason of the deletion of the relevant provision in Clause 1(1), to which it would add an additional subsection. It would add to the overarching objective of making regulations, which is to secure safe products:

“In considering whether regulations should be made … the Secretary of State must have regard to the likelihood of the United Kingdom being seen as a favourable place in which to develop, manufacture or supply products”.


Of course, many of the debates that we have on the Bill will relate to the question of alignment, or otherwise. One of the reasons why we are considering this legislation is because there would be significant issues to do with the manufacture, distribution and supply of products in this country were we to diverge significantly from the standards that lie behind the CE marking from the European Union. Rather than continue, as we have done, with reliance on the retained EU law legislation, it is the Government’s intention, through this legislation, to enable us to accept CE marking. That is not necessarily on a dynamic basis—I agree that it is a matter of choice whether we do so—but the Bill’s structure is intended to enable that to happen. Because we seek to do that by reference to the adverse economic consequences that may flow from failing to be able to bring products here, which may drive some economic activity elsewhere, it seems important that Ministers making regulations under this legislation should consider whether, as a result, the UK is an attractive place in which to manufacture, distribute or supply products.

This is not a new concept. The noble Lord, Lord Hunt of Kings Heath, on the Government Front Bench will recall that the Medicines and Medical Devices Act 2021 includes effectively the same provision in relation to medical devices. Medical devices are outside the scope of this Bill but it is relevant to a wide range of other industrial products. I do not understand why it should not be an essential part of the way that Ministers consider making regulations that have such an impact to have regard to the positive benefits that can accrue to business from ensuring that we have the right product regulatory framework for them, so I commend Amendment 4 to the House.

I do not agree with the noble Lord, Lord Anderson, that Amendment 2 is a wrecking amendment. Why not? Because, if the first subsection were to be removed by that amendment, the regulation-making power would be removed from the Bill so the Government would have to think again. However, the noble Lord and the House will note that later in this group is government Amendment 44. The original formulation in the Bill was to have consequential amendments to Parts II, IV and V of the Consumer Protection Act 1987. In response to the suggestion from the Delegated Powers Committee, which was unhappy with the sweeping power to amend that Act, the Government have instead said, “We’re going to omit Parts II and IV now”. Part II is the bit I am interested in; it is the part of the Act that relates to product safety. The Government simply propose to remove Part II of that Act.

I say to the House and to my noble friend on the Front Bench that if Amendment 2 were to be passed the Bill would clearly have no further regulation-making power in it. However, if at the same time the House were to resist government Amendment 44 then there would continue to be powers in the Consumer Protection Act 1987 for the purpose of making regulations for product safety. The House will be reminded that Section 11(1) of the 1987 Act says:

“The Secretary of State may by regulations … make such provision as he considers appropriate for the purpose of securing … that goods to which this section applies are safe”.


More detail follows, including the respective ways in which provisions can be determined.

The Government should tell us either how they are going to legislate using the powers in the 1987 Act or, if they want to get rid of them, how they are going to replace them in detail. They have done neither of those things. I know we are going to come back to talk about legislation on product liability at a later stage. The Consumer Protection Act is nearly 40 years old and we know it needs updating, but the Government are not doing that; they are sweeping it away and not giving us anything like the detail that was in that Act as to how the powers are going to be used. Nearly 40 years’ worth of scrutiny of the Section 11 provisions on product safety will also be swept away, because the language in this Bill is not the same as in that Act.

The House will have to forgive me: I am slightly anticipating the next group and Amendment 3, because if Amendment 2 is passed, Amendment 3 will not be debated; it will have been pre-empted. I want to make it absolutely clear that although I support my noble friend’s criticisms of the way the Bill is constructed, there is a route available to maintain the powers for determining regulations for product safety. That would force the Government to come back and amend the Consumer Protection Act in ways that are more substantive and clearer than what the present Bill offers us.

Terrorism (Protection of Premises) Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 10th February 2025 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

21: Clause 5, page 4, line 19, leave out subsections (4) to (6)
Member’s explanatory statement
This would remove a Henry VIII Clause which will otherwise give the Minister power by regulation to alter (including by making more onerous) the range of public protection procedures in subsection (3) which were decided upon after full consultation and will after passage of the Bill have been endorsed by Parliament.

[Lord Anderson of Ipswich (CB)]

My Lords, I will speak to the four amendments in this group, with thanks to the noble Baronesses, Lady Suttie and Lady Fox, and the noble Lord, Lord Sandhurst, who have variously signed them. I thank also the Minister, not only for being generous with his time but for his indication in Committee on Wednesday that he had some sympathy with these amendments. What form that sympathy will take we look forward to finding out.

Standing back, the Bill has two principal elements: it stipulates the capacity of events and premises that are subject to its provisions, and it stipulates the types of procedures and measures which must be followed by those responsible for such premises and events. Those things are not matters of detail—they define the policy that underlies Martyn’s law. We are asked, quite properly, to sign off on those provisions by giving our approval to Clauses 2 and 3 on capacity, and to Clauses 5 and 6 on procedures and measures.

The amendments in this group all relate to Henry VIII clauses: provisions in the Bill that allow the Minister, by the affirmative procedure, to amend provisions of statute. It is not just any statute: this statute, the one we are being asked to pass into law; and not just any provisions—the provisions in Clauses 2, 3, 5 and 6 that lie right at its heart.

Delegated powers are a fact of life and, although some of us may regret it, we are even seeing the normalisation of Henry VIII powers, which allow statutes to be amended in points of detail by regulation. But I suggest that these Henry VIII clauses simply go too far in giving Ministers the power to retake policy decisions that have been taken after much debate by Parliament.

The first pair of amendments in my name, Amendments 21 and 23, would remove the Henry VIII clauses in Clauses 5 and 6. These were singled out for concern by the Constitution Committee in the letter from the noble Baroness, Lady Drake, to the Minister of 14 January. As a member of that committee, fortunate to serve under the chairmanship of the noble Baroness, I will briefly explain why.

The lists at Clauses 5(3) and 6(3) dictate what may lawfully be required of those responsible for premises falling within scope. Clause 5(3) specifies the “Public protection procedures” to be followed if there is reason to suspect that an act of terrorism is occurring or about to occur. They are of limited scope: little more than procedures for evacuation and invacuation, barring entrances and providing information.

Clause 6(3) lists the public protection measures that must additionally be in place in enhanced duty premises or in qualifying events. These are potentially much more extensive: measures relating to monitoring, movement, the physical safety and security of the premises, and security of information. Unlike the public protection procedures that are the subject of Clause 5, they must be in place at all times and may have as their objective to reduce the vulnerability of the premises as well as risk to individuals.

Clauses 5(4) to (6), and 6(4) to (6), which these amendments would remove, allow both lists—the list of procedures and the list of measures—to be amended, not only by regulation but without meaningful precondition and without even the safeguard of consultation. What could that mean in practice? Take Clause 6, where the range of public protection measures is already almost limitlessly broad: anything relating to monitoring of a premises or event; anything relating to the physical safety or security of the premises; anything relating to the movement of individuals or the security of information. Clause 6(4) would allow yet further measures, not relating to the safety and security of the premises, monitoring, movement, and so on, to be introduced by regulations. What regulations could the Government have in mind? They sound as though they are well outside the normal range of protections that we might think useful and acceptable. If any such categories can be thought of, why can they not be brought forward and debated in the Bill? If they cannot be thought of, how can this power be justified?

The range of procedures in Clause 5 is much more limited, and understandably so, because these procedures are to be activated only once a terrorist attack is immediately anticipated or already under way, and because some of the venues to which they apply are relatively small. But, because the range is so limited, the potential for its expansion is commensurately large. What new and more onerous categories of procedure might be in prospect, what will be their additional cost and why are they not already in the Bill so that we can debate and decide on them now?

--- Later in debate ---

In conclusion, to the noble Lords who have spoken in this debate, I offer a sort of half-concession discussion and further examination in due course on Amendment 38. With regard to the other powers that have been included in the Bill, I hope that noble Lords, having listened today and potentially having read Hansard, will not pursue the amendments that are listed and will allow me to discuss Amendment 38 further with the noble Lord, Lord Anderson.

[Lord Anderson of Ipswich (CB)]

I am grateful to all noble Lords who have taken part in this short debate. I shall not try to summarise the excellent speeches that were made—they will come much more clearly in the form that they were made than they would from any summary of mine—but I will pick up a point made by the noble Lord, Lord Harris of Haringey, who emphasised consultation. As I said at Second Reading, this Bill has in many ways been a model of careful consideration. Look at the work that the Home Affairs Select Committee did on it, the work that was done in another place, the way that this Government have listened, and the way that people right around the country were consulted before these measures, procedures and thresholds were reached. In previous groups, the Minister, quite rightly, has sought credit for the depth of that consultation and the care with which those crucial figures, procedures and measures were arrived at. So although I might not have used exactly the same words as the noble Baroness, Lady Fox—she said that to introduce Henry VIII clauses and apply them to these central elements of the Bill when it has already been consulted on makes a mockery of it—I entirely understand where she is coming from.

I am very grateful to the Minister for what he has said. I think he described it as a half concession—and one must take what one can get—on Amendment 38 and the idea that changes to the thresholds should be motivated by a change to the terrorist threat. However, I urge him, while he is in that generous mood, to heed the very strong terms in which the noble Lord, Lord Davies of Gower, expressed himself on Amendment 39. If you were seeking a Henry VIII clause in these circumstances, and claiming as your model the Fire Safety Act 2021 which has a duty to consult—I might say a very weak duty to consult only such people as seem to the Secretary of State appropriate—why can that not be followed through into the text of this Bill?

The Minister gave an assurance from the Dispatch Box that there would be appropriate consultation—I think he said that; I do not want to put words into his mouth—although he did say that, on some minor issues, it might be internal consultation only. If the Minister is prepared to say that from the Dispatch Box, let us hope that all his successors are as well inclined to the idea of consultation. But is it really a great stretch to put those words into the Bill as well? I hope that, just as we reflect before Report, the Minister will reflect as well.

If the consultation power is too wide—and I think the Minister took the point that perhaps Amendment 39 applies to a whole range of changes—it could of course be narrowed. Amendment 38 is restricted to specific aspects of the Bill and it would be quite possible to redraft a consultation power that was equally narrow.

While I am on my feet and we are all beginning the process of reflection before Report, might the Minister consider applying the logic that he has brought to Amendment 38 to the lists in Clauses 5 and 6? After all, if reductions in the threshold, as the Minister seems minded to accept, require a change in the terrorist threat—or that there could at least be debate as to whether that is an appropriate precondition—why should not an expansion of the lists similarly require a change in the threat?

[Lord Hanson of Flint (Lab)]

The reason I would put is that a change in the threshold would involve bringing a large number of other potential businesses and outlets into the scope of the provisions of the Bill. The changes in Clauses 5 and 6 may tweak or look at the protections available or what other support and training should be given, but they do not bring into scope further premises.

[Lord Anderson of Ipswich (CB)]

I am grateful for that clarification and answer, but Amendments 38 and 39 are not just about a changing of the threat; they are also about consultation. While the Minister is thinking about consultation in relation to the thresholds, I wonder whether he might think about something similar in relation to changing the lists.

The Minister has offered me half a concession. What I was offering him just now was perhaps half an olive branch. It was a way of possibly coming back on Report with something slightly different from my amendments to Clauses 5 and 6. I think we all have reflecting to do. I am extremely grateful for what I think has been a most useful debate. For the moment at least, I beg leave to withdraw my amendment.

Amendment 21 withdrawn.

Terrorism (Protection of Premises) Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Tuesday 7th January 2025 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, this Bill has been forged in reaction to a despicable terrorist attack, dignified by the name of one of its victims, promoted by his courageous mother and subject to a high degree of cross-party consensus. Those are all admirable things, but they also underline the need for serious and dispassionate parliamentary scrutiny.

It is sometimes said that the meaningful scrutiny of Bills is nowadays the province of this House only, and examples of that are not unknown. However, having followed the progress of this Bill through the Commons, with particular reference to the work of the Public Bill Committee and the Home Affairs Select Committee—the independence of which on this matter was notable— I have a lot of respect for the evidence they have taken and the work they have done. That is now reflected in the reformulated and, I must say, improved Bill. I particularly welcome the test of reasonable practicability, so familiar from health and safety legislation, and the changes to the lower threshold for qualifying premises, which is strongly supported by the National Association of Local Councils. It will take out of the scope of the Bill over 100,000 premises—including small parish churches, village halls and town centre cafes—that cannot reasonably be expected to host as many as 200 people.

I remember discussing with Tom Tugendhat, when he was the Security Minister responsible for the Bill, whether it was necessary to put the limit as low as a capacity of 100. He of course held the line at the time, but it was interesting to see that, once released from his responsibilities, he tabled an amendment in Committee that sought to raise the revised lower limit from 200 to 300.

I am grateful to the Minister for meeting with me on this issue. I hope he will forgive me if I remain slightly sceptical about the likely value of the obligations placed on the smallest standard duty premises. A £3,313 average cost over 10 years is not a trivial amount for a financially marginal business or a village hall struggling to raise funds. Yet compliance with the standard duty, as can be seen in Clause 1(1), is intended not to reduce the vulnerability of such premises to acts of terrorism, but to reduce only the risk of physical harm once an act of terrorism is imminent or has started. As the Minister covered in his opening speech, Clause 5(3) demonstrates what that will mean: guarding and locking doors, ensuring that people know where the exits are, and so on.

Bearing in mind the modest extent of the standard duty, I wonder how much the centrally available guidance, which operators are supposed to download, will add to the common sense of those who operate small venues and know them inside out, particularly when, as is thankfully the case in most places, the risk of a terrorist attack is almost vanishingly small. The Minister probably feels that by shifting the minimum threshold to 200 he has reached a widely acceptable compromise, and he may well be right.

However, I remain concerned by the ease by which, by affirmative regulation, 100,000 extra premises could be brought within the scope of the Bill, and many more made subject to the enhanced duties. After a terrorist attack, it can be tempting for any Government to be seen to take immediate action to tighten up the law. Of course, the noble Baroness, Lady May, to whom it was my great privilege to report as Independent Reviewer of Terrorism Legislation, was made of stronger stuff, and so, I suspect, is the Minister. But others do succumb to temptation of this kind, and activating such a power would be an obvious and tempting response.

I make two suggestions. Just to concentrate minds a little, could the operation of Clause 32 not be made conditional on the Secretary of State being satisfied that changing the threshold is justified on the basis of the terrorist threat? That is in the Delegated Powers Committee memorandum; why not put it in the Bill? This would not prevent it being done, but it would make it more likely that it will be done for the right reasons. Secondly, the Delegated Powers Committee memorandum claims as a precedent for this power Section 2 of the Fire Safety Act 2021, which indeed provides for a similar affirmative power to change premises to which the fire safety order applies, but that section contains a statutory obligation to consult. Bearing in mind the extensive consultation that arrived at the figures of 200 and 800, surely at least some consultation would be appropriate before Ministers intervene to change them by regulation.

I have a couple of other points. Noble Lords will have seen a submission from LIVE, which describes itself as the live music industry body in the UK. LIVE makes the point that music festivals, venues and events are already regulated under the Licensing Act 2003, with, where appropriate, highly developed counter- terrorism measures secured by licence conditions. This is overseen, it says, by safety advisory groups which take advice from local police forces and local counterterrorism security co-ordinators. Is that a picture the Minister recognises and, if so, can he give us some more detail on what the regime in the Bill will add to what is described? I do not doubt it will add something. Will the mechanisms described by LIVE persist after Martyn’s law has entered into force? How will any overlap be dealt with, and how will the existing mechanisms be integrated into the approach of the SIA? It would be good to hear more about this since, as the Regulatory Policy Committee points out, the Bill’s impact assessment provides no evidence that a new regulator with national inspectors would be efficient compared with local authority compliance, and the new regulator is of course given very strong enforcement powers.

Finally, I noticed from Schedule 2 that certain premises are excluded from the Bill. Premises occupied by the devolved Administrations in Scotland, Wales and Northern Ireland are excluded, but those occupied by the United Kingdom Civil Service are not. I wonder if the Minister can tell us why. Also excluded from the Bill are premises occupied for the purposes of the devolved legislatures, the House of Commons and the House of Lords. I assume that these premises, or some of them, are considered to fall within Schedule 1; otherwise, no exclusion from the Bill would be necessary. No doubt other precautions are in place, but although we are frequently urged to do our fire safety training, I do not recall hearing anything about the threat of terrorism, which is perhaps rather greater here than it is in my village hall. I should be grateful if the Minister told us what difficulties there are in applying the standard and enhanced duties to Westminster as they are applied to Whitehall, and explained why parliamentary buildings are exempt.

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.