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.

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

[Lord Anderson of Ipswich (CB)]

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

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

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

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

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

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

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

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

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

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

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

[Lord Carlile of Berriew (CB)]

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

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

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

Asylum: UK-Rwanda Agreement

Lord Anderson of Ipswich Excerpts

Monday 22nd January 2024 Lords Chamber

[Lord Anderson of Ipswich (CB)]

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

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

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

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

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

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

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

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

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

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

“the judgement of Parliament that … Rwanda is”—

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

Investigatory Powers (Amendment) Bill [HL]

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 11th December 2023 Lords Chamber

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

[Lord Anderson of Ipswich (CB)]

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

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

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

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

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

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

--- Later in debate ---

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

[Lord Anderson of Ipswich (CB)]

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

“open to Parliament to require further safeguards”

and suggested that those safeguards include

“making the extra condition available only to UKIC”—

in other words, the intelligence services—

“at least in the first instance”.

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

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

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

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

Investigatory Powers (Amendment) Bill [HL]

Lord Anderson of Ipswich Excerpts

2nd reading
Monday 20th November 2023 Lords Chamber

[Lord Anderson of Ipswich (CB)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Contest: UK Strategy for Countering Terrorism 2023

Lord Anderson of Ipswich Excerpts

Monday 24th July 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

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

[Lord Anderson of Ipswich (CB)]

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

[Lord Sharpe of Epsom (Con)]

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

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


That would seem to me to make sense.

Illegal Migration Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

Finally, the Delegated Powers and Regulatory Reform Committee’s report says that the procedures of the SI that are to come, the regulations, should be done by the positive procedure and not the negative resolution procedure which has been adopted. I would be grateful if the Minister said that the Government are considering that matter. In the end, what steps are the Government taking to ensure that individuals who are vulnerable and cannot be safely detained will be swiftly identified by appropriately qualified staff and released, with appropriate safeguards in place, following the removal of currently available legal challenge? Of course, we expect to see the Home Secretary’s risk assessment in the impact assessment which we understand is to follow.

[Lord Anderson of Ipswich (CB)]

My Lords, I would like to accept the invitation of the noble Lord, Lord German, as another lawyer, to address the Hardial Singh principles and habeas corpus, but since, on my reading of the Bill, they arise under Clauses 11 and 12 respectively, I think it might be best to reserve that treat for another day. I do have a question about Clause 10, which I candidly admit I do not find the easiest to understand. The Bar Council, in its briefing prepared by immigration practitioners far more expert than me, states that the powers already exist to detain any individual who is suspected to be subject to the Clause 2 removal duty, that Clause 10 does not provide for any additional persons to be detained, and that the purpose of the clause is simply to remove existing protections for unaccompanied minors, families and pregnant women. Is there any more to it than that?

[Baroness Mobarik (Con)]

My Lords, I shall speak to Amendments 59, 63, 64 and 67 standing in my name. I am immensely grateful to my noble friends Lady Helic and Lord Bourne of Aberystwyth and the right reverend Prelate the Bishop of Durham for adding their names to these amendments. I am also extremely grateful to the many children’s organisations that sent invaluable briefings and gave clarity on the subject. I refer noble Lords to the relevant interests in my name in the register. 

The words “detention” and “children” have no place in the same sentence. In the case of this Bill, it can also mean the possibility of indefinite detention, as proposed by the Government. In 2010, the organisation Medical Justice coined the term “state-sponsored cruelty” in relation to children in immigration detention. Its reports highlighted the great calamity being inflicted on thousands of innocent children, with lasting and detrimental consequences, including leaving them traumatised and suicidal. This led to a deep conviction across the political spectrum that such practices were inherently wrong and that a better, more humanitarian approach had to be taken. A pledge was given in 2010 by someone seeking the office of Prime Minister—David Cameron. He pledged that, if elected as Prime Minister, child detention would end. He was true to his word, and it became part of the coalition’s programme for Government in 2010, with policy changed as soon as 2011. With the Immigration Act 2014, the routine detention of children came to an end. That was progress. It was, as one would expect, a humanitarian response to an unacceptable and cruel practice. It is therefore with some dismay and disbelief that we are seeing attempts to reverse the progress made. Almost a decade on, we are discussing the reintroduction of those measures in an even more draconian form.

This Bill creates powers to detain en masse those who arrive in the UK without permission, on or after 7 March 2023, because they are not coming directly from a country where their life and liberty are threatened. Fleeing war-torn Syria but crossing through, for example, Belgium disqualifies them. As mentioned many times, there are no legal routes to the UK for most of those seeking asylum here. Of those coming, thousands of children could face detention. This is not a random statement but one based on the Refugee Council’s careful analysis in its impact assessment of the Bill. The exact figures are available in its report, but over a three-year period it equates to around 13,000 to 15,000 children in detention per annum. We are talking about babies, toddlers, children who are victims of child trafficking, unaccompanied children and children with families—defenceless little people, many of whom have not yet learned to speak and others who may be of speaking age but have no English language. They are detained, and with no legally defined time limit to their detention. They are detained anywhere,

“in any place that the Secretary of State considers appropriate”,

and without the possibility of bail for 28 days. Needless to say, children’s and refugee organisations are aghast at what is being proposed. They are not alone. Many of us across all Benches in this House and the other place feel the same.

Let us stop and think for a moment that perhaps it is not the intention of the Home Secretary to lock up thousands of children. Perhaps we can put this down to the lack of an economic impact assessment or child’s rights impact assessment conducted by the Home Office itself. If that is the case, now is the opportunity, in Committee in this House, for my noble friend the Minister to reconsider what is being proposed. Of course it is understood that there will inevitably be very specific and limited occasions when children are detained, but the existing legislation already gives parameters for this. That is why I propose amendments to Clause 10, to retain the existing time limits of 24 hours in detention and with safeguards for unaccompanied children. Amendments on those who are with families seek to retain existing time limits so that they can be detained only for up to 72 hours, or not more than seven days where detention is personally authorised by a Minister. Importantly, this should be in short-term holding facilities or pre-departure accommodation.

Existing legislation on the detention of children, as under the Immigration Act 2014, is already in place. I ask only that the status quo be maintained. The Home Secretary may argue that by not detaining children we are creating another pull factor, but the evidence shows that there was no significant increase in the number of children seeking asylum once routine detention ended in 2011.

The question then is what the intention of the Government is if, as Prime Minister Sunak says:

“The intention of this part of the policy objective is not to detain children”.


We were given reassurances by the Minister during the Commons Report stage on 26 April that,

“we do not want to detain children. We will do so only in the most exceptional circumstances”.

There was also assurance from the Minister that the time limits

“will be as short as practically possible”.—[Official Report, Commons, 26/4/23; col. 837.]

However, these tests of “most exceptional circumstances” and

“as short as practically possible”

cannot be found in the Bill. All that can be found following the Government’s amendment is a delegated power for the Home Secretary to make regulations under the negative procedure that specify circumstances for the detention of unaccompanied children. There is also a discretionary power for the Home Secretary to make regulations that specify time limits. There is no clarification in the Bill as to the length of the time limits for detention or to which unaccompanied children they might apply, or how discretion might be exercised. Moreover, the regulations may or may not specify time limits for unaccompanied children. We have no assurance in the Bill that they will. Either way, they will do nothing for children and families.

I understood from my noble friend the Minister that later in the Bill’s passage the Government propose to

“set out the new timescale under which children may be detained for the purposes of removal without judicial oversight”.—[Official Report, 10/5/23; col. 1783.]

I must ask for clarification from my noble friend. If the Government truly wish to detain children for as short as practically possible, why are they disapplying the 2014 safeguards to children affected by this Bill? These safeguards were put in place by a Conservative Prime Minister and a Conservative Home Secretary.

Given this late stage in the Bill’s passage, when do the Government propose to set out these new timescales in the Bill, and what will they be? What are the circumstances in which unaccompanied children would be detained and why can these “most exceptional circumstances” not be stated on the face of the Bill and be open to full scrutiny during its passage? Will those timescales in regulations be an absolute time limit for the detention of children, or merely a timescale for judicial oversight of that detention? As a country in which the rule of law is a pillar of our constitution, can we detain children without judicial oversight? I presume detention is for the purposes of removal but would like clarification on whether the Government are proposing child detention for other purposes. If so, can the legal basis for such detention be explained?

Verbal reassurance is completely inadequate. I am no expert but I understand that this is not the way that laws are made. Laws must be much more firmly established. They cannot just fluctuate depending on which Home Secretary is in the driving seat; that is surely a dangerous precedent. Amendments 59, 63, 64 and 67 seek to place our current safeguards for the detention of children in the Bill, so that children impacted by it need not rely on mere verbal assurance. I understand that the issue of illegal migration is complex and requires a deterrent factor so that those who genuinely qualify can be identified, and that it requires a genuine solution, but I think most here would agree that the solution being proposed is not the right one on so many levels.

We are speaking about defenceless children. I say to noble Lords that it may be difficult for us to think back to our six year-old selves, so let us think about our children or grandchildren, who have neither the physical strength to defend themselves nor the verbal sophistication. We have a moral obligation to ensure that we protect the rights of these most vulnerable human beings.

Illegal Migration Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, Amendment 19A is on modern slavery. I will speak to a series of my other amendments relating to Clauses 4 and 21. I am grateful to the noble Baroness, Lady Hamwee, and my noble friend Lord Bach for their support.

I think we are all aware that modern slavery is a brutal crime involving sophisticated criminal networks buying and selling people for profit. Victims of this appalling crime may be forced to enter the UK illegally, coerced, deceived and forced against their will, with their identity and decision-making powers stripped away. If left unamended, the Bill would see victims punished for crimes committed by the perpetrators, deported or held in detention centres, exacerbating pre-existing traumas.

In the past 12 years, organisations such as Hestia—the leading modern slavery charity in the UK—to which I pay great tribute, have supported victims via the modern slavery victim care contract. In that time, these organisations have supported over 18,000 victims of modern slavery. Survivors have been exploited for profit by criminals often operating as part of organised networks, both in the UK and internationally. The Bill will do incredible damage to those efforts.

Clause 4 applies the Bill’s provisions to people who claim to be victims of slavery or human trafficking, or those who have made an application for judicial review in relation to their removal from the UK under the Bill. Clause 21 relates to the Council of Europe Convention on Action against Trafficking in Human Beings, which provides that, once there are reasonable grounds to believe that a person is a victim of trafficking, states have certain obligations to that person. Under the Bill’s provisions, where a protection or human rights claim falls within subsection (5), it will be declared inadmissible by the Secretary of State and will not be considered in the UK.

Were the Bill to come into effect without any provisions to protect victims from the duty to remove that is set out in Clause 4, many of these survivors would be denied the opportunity to rebuild their lives and reclaim their autonomy, based purely on their route of entry. This would also apply in circumstances of trafficking, where individuals have been forced to enter the country illegally. The Bill will do nothing to break cycles of exploitation or help people to break free of modern slavery. Instead, it will feed the criminal networks that profit from the lives of vulnerable people, and it will undo the great work of the Modern Slavery Act.

Noble Lords will have received a briefing from Justice about its significant concerns that proposals to deport potential victims of modern slavery and human trafficking, without properly considering their claim, are incompatible with Article 4 of the ECHR and the ECAT. The Government say that there will be protections for those supporting criminal investigations and proceedings, but even those limited protections have been watered down in late-stage government amendments in the Commons. Clauses 21(5) and 28 require the Home Secretary to assume that an individual can co-operate with criminal proceedings from abroad, unless there are “compelling circumstances”. But, as Justice says, this is troubling because individuals with vulnerabilities are likely to struggle to co-operate with criminal proceedings from abroad. It faces a further presumption in favour of deporting potential victims of trafficking and modern slavery.

As the previous Independent Anti-Slavery Commissioner said during the Nationality and Borders Act 2022 debate, providing a sufficient recovery and reflection period is often essential to enable potential witnesses to co-operate with criminal proceedings—therefore, limiting such support

“will severely limit our ability to convict perpetrators and dismantle organised crime groups”.

We discussed this at Second Reading, when the Minister claimed that

“The modern slavery clauses are fundamentally about preventing dangerous and illegal crossings that pose a threat to public order … the national referral mechanism offers world-leading protections to victims of modern slavery, and we must be alert to the risk that these protections will be used to frustrate removal action. Last year, 17,000 referrals took on average 543 days to reach a conclusive-grounds decision, making modern slavery protections susceptible to misuse”.


He argued:

“The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from 6% of detentions ending in 2019—that is, 50 people—to 73% in 2021 … Modern slavery laws are, therefore, an inextricable part of an immigration system that is open to being misused in order to block removals”.—[Official Report, 10/5/23; col. 1923.]


That is surely flawed logic. As Justice says, it is the Home Office-approved first responders who refer individuals to the competent authority if there are suspicions that someone is a victim of trafficking or modern slavery. Some 90% of the competent authority’s decisions last year were positive—in other words, decisions that there were reasonable grounds that someone was a victim of trafficking and modern slavery. Some 91% of conclusive grounds decisions were also positive, so where is the evidence that the system is being abused? Surely the Home Office’s own data highlights the overwhelming majority of credible victims of trafficking and modern slavery. As Theresa May made clear at Second Reading in the other place:

“The Home Office knows that the Bill means that genuine victims of modern slavery will be denied support”.—[Official Report, Commons, 13/3/23; col. 593.]


Furthermore, by closing the route to safety and support, the Bill risks strengthening the hands of trafficking networks. Traffickers keep people under their control with threats that they will not receive help if they reach out to the authorities. The Bill will substantiate that claim and further dissuade survivors from coming forward. We know that successful prosecutions of traffickers rely on the testimony and co-operation of those whom they exploit. As it stands, the Bill would have a devastating impact on survivors of modern slavery and human trafficking, offering them no recourse for support or protection, removing them from the country, leaving them entirely unsupported and leaving criminal gangs and traffickers unchecked.

My amendments first seek to remove the inclusion of people who claim to be victims of slavery or human trafficking from the provision in Clause 4 under which the Secretary of State must declare the claim inadmissible. My amendments to Clause 21 seek to amend the Bill so that a person who is in the process of being referred by a first responder to a competent authority, who awaits its reasonable grounds decision, who receives a positive reasonable grounds decision, who has a positive conclusive grounds decision or who is challenging a negative reasonable grounds or conclusive grounds decision may remain within the main referral system in the UK and subsequently receive modern slavery support, subject to Section 50A of the Modern Slavery Act, which includes protections from being removed.

These amendments essentially seek to ensure that potential and recognised victims of trafficking will not be detained or removed before they get the opportunity to submit an application to the NRM and have it duly considered. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I sat out the Second Reading debate in favour of a meeting of the Constitution Committee, in which we discussed our draft report on the Bill. That report is no substitute for the report of the Joint Committee on Human Rights—which I, for one, await with impatience—although I hope that it does deserve study. It discusses, in particular, the remarkable variety in the Bill of what might be called ouster clauses. Among them is Clause 4(2), which is the subject of Amendment 21, in the name of my noble and learned friend Lord Hope of Craighead, who cannot be here today, and to which I have added my name.

Some ouster clauses are aimed at restricting appeals or reviews from the decisions of a legally qualified tribunal. Examples include Clauses 49 and 51, which appear to be modelled on Section 2 of the Judicial Review and Courts Act 2022. The Supreme Court’s decision in the Privacy International case concerned an ouster of that nature.

More fundamental in their scope are the ousters in Clauses 4, 12 and 55. They bite not on claims that have already been adjudicated by tribunals but on claims that have never been adjudicated by any court or tribunal—and, in the case of Clause 4, any claim to the effect that removal from this country would be contrary not only to our laws against slavery and human trafficking, as we have just heard, but to the refugee convention, the Human Rights Act and the principles applied by the courts on judicial review. Such claims can be pursued, if at all—I am mindful of the jurisdictional limitations on the Human Rights Act—only after removal from the United Kingdom.

Through the kind offices of the Bar Council, I spoke this morning to a number of immigration law practitioners. They told me that so-called bring-backs, historically, have been vanishingly rare. Indeed, they are measurable in single figures. These are people who win their cases from abroad and then see those judgments implemented in the sense that they are brought back. Pursuing such a claim from out of country seems, for most people, to be a remedy which, in the time-honoured phrase, is not practical and effective but theoretical and illusory.

Clause 4 is supported by two buttresses: Clause 52, which prevents our courts issuing interim measures to prevent or delay removal; and Clause 53, which, if passed into law, will give parliamentary authority to Ministers to disregard interim measures issued by the European Court of Human Rights. A final nail is hammered into the coffin of judicial review by government Amendment 25A, which was debated in the previous group.

The Minister will no doubt say that the effect of the Clause 4 ouster is mitigated by the new suspensive claims provided for by Clauses 37 to 51 to deal with cases of serious harm and factual error. That is right, but only up to a point. The problem with those clauses is not only the punishing time limits and evidential requirements proposed in the Bill but their limited scope of application. For example, they afford no scope to challenge removal on slavery and human trafficking grounds, on private and family life grounds, or for the breach of elementary legal principles, such as prejudging and procedural error.

As my noble and learned friend Lord Brown of Eaton-under-Heywood referred to at Second Reading, the difficulty we face as a revising Chamber is that this degradation of existing judicial powers to keep the Executive in check is a feature of this legislation and not a bug. The Government’s theory of deterrence is based, in significant part, on the neutering of the courts. No doubt we will have to decide on Report whether we think that the objectives of the Bill, and the likelihood of achieving them, are enough to justify such a significant rebalancing of powers. If we think that they are not, we will have to decide whether to try to reverse the ousters in Clause 4 or to work with the grain of the Bill, however unpalatable we may find it, and seek to increase the range and feasibility of the new suspensive claims. In any event, it may not be controversial, but, in the words of a unanimous Constitution Committee:

“The cumulative impact of the ouster and partial ouster provisions in the Bill gives rise to very considerable constitutional implications”.


I wonder whether the Minister agrees.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I will come back to the noble Lord, Lord Purvis, at the end. I can confirm that removing this incentive is compliant with our international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings—ECAT. Indeed, ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order. There is a clear and unprecedented threat to public order through the loss of lives and the pressure on public services that illegal entry to the UK is causing. I again remind noble Lords that the number of small boat crossings has risen from 8,500 in 2020 to over 45,000 last year. We will have a fuller debate in respect of the modern slavery provisions when we reach Clauses 21 to 28 in Committee, but I cannot agree to the noble Lord’s proposition that the foundation of those provisions in subsection (1)(c) be removed from the Bill.

Amendment 20, spoken to by the noble Lord, Lord Carlile, seeks to strike out subsection (1)(d), the effect of which would be to enable any judicial review to put a block on removal until the legal proceedings had been concluded. It seems to me that the key words—and perhaps I could invite the noble Lord to refer to the Bill—are in Clause 4(1)(d), which relates to an application for judicial review in relation to their removal. As my noble friend Lord Horam indicated, such an amendment would again undermine a key feature of the scheme provided for in the Bill. We must stop the endless cycle of late and repeated challenges that frustrate removal under the current law. Of course, it is right to say, too, that there is no general block on non-suspensive judicial review provided for in the Bill.

The Bill provides for two types of claims that would suspend removal, and we will come on to those in due course in Committee. Those provisions provide sufficient remedies to challenge a removal notice and afford the necessary protection to a person suffering serious and irreversible harm were they to be removed to the specified third country. All other legal challenges, whether on ECHR grounds or otherwise, should be non-suspensive. Therefore, Clause 4(1)(d), read with Clause 52, does not oust judicial reviews; those provisions are simply making it clear that any judicial review cannot block removal.

As regards Amendment 21, tabled by the noble and learned Lord, Lord Hope of Craighead, and spoken to by the noble Lord, Lord Anderson, I have already indicated that inadmissibility is not a new concept. It has been a feature of the UK asylum system for some time and is already enshrined in the Nationality and Borders Act 2022. While I welcome the Constitution Committee’s scrutiny of the Bill, I cannot accept its characterisation of the provisions as having significant rule of law implications. What does have significant implications for the rule of law, I suggest, is tens of thousands of people arriving on our shores each year in defiance of immigration laws. These individuals should be claiming asylum in the first safe country they reach, and, in these circumstances, it is legitimate to declare any protection claims inadmissible to the UK system.

The noble Lord, Lord Anderson, asked what would happen to an asylum or human rights claim that had been declared inadmissible, but where the person had had their factual or suspensive claim accepted. In such a case, the person’s claim would be considered under the existing law. That might include existing inadmissibility provisions. I again remind the Committee that inadmissibility is a long-standing process intended to support the first safe country principle. It is an established part of the international asylum procedures applied across the EU and specifically provided for in UK law, most recently in the strengthened provisions introduced in the Nationality and Borders Act 2022.

[Lord Anderson of Ipswich (CB)]

I am grateful to the Minister. In the circumstances that he accurately sets out, could a declaration of inadmissibility be reversed so that the human rights claim or the protection claim could proceed in the normal way?

[Lord Murray of Blidworth (Con)]

The provisions of the Bill in relation to that are a little involved, and I will write to the noble Lord.

Amendment 23 in the name of the noble Lord, Lord Dubs, also deals with inadmissibility. It seeks to provide for asylum and human rights claims from those who have not been removed within six months to continue to be admissible within the UK. In effect, the amendment seeks to perpetuate our current broken asylum system. Again, it seeks to chip away at and put holes into the scheme provided for in the Bill, undermining its coherence and effectiveness. This amendment would regrettably again encourage illegal migrants to use every tactic to frustrate their removal, in the knowledge that after six months their asylum claim would be processed. Moreover, the amendments would unfairly result in individuals who have arrived illegally in the UK being prioritised alongside those who have availed themselves of our safe and legal routes—something which, I suggest to the Committee, is manifestly unfair.

The Bill must send a clear message that if you come to the UK via an illegal route, you will never be able to return to the UK or build a life here. The benefits of settlement should be open only to those who abide by our rules. The whole construct of the scheme is to enable illegal migrants to be removed within days and weeks, not months and years. There is no prospect of someone being left in perpetual limbo, as suggested by a number of noble Lords, including the noble Lord, Lord Dubs, and the right reverend Prelate the Bishop of Coventry. Amendment 23 is therefore redundant. I therefore invite the noble and learned Lord, or his proxy, not to press Amendment 20.

Public Order Bill

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I will intervene very briefly to make two points. I spent about eight years overseeing police work on counterterrorism in London and more generally. The use of the Section 44 power, which gives the police the power to stop without suspicion, was one that most people, when they thought about it, would say was acceptable: they understood that they were in an area where there was an obvious terrorist target and heightened concern.

When that power was exercised, was it without controversy? I am afraid that the answer is no. There was enormous resentment towards it, precisely because of the issues about disproportionality that have already been referred to and the complications that ensued from that.

That was in circumstances when most people might understand it, when they had it quietly explained to them—which does not usually happen during the course of a normal stop and search—that, “We’re stopping you, because we’re in this area, you are close to this and we are stopping people at random, just to make sure that they are not carrying explosives or a bomb”. But this is about circumstances where people are engaging in a demonstration or exercising their civil rights. That is of a completely different order and what makes this disproportionate.

My second point may sound trivial by comparison. We have had the point made about what rank of officer should look at this. It was suggested by the noble Lord, Lord Hogan-Howe, that it might be quite difficult to find a chief superintendent at the right moment. All I would say is, if this is a matter of such seriousness that we are being asked to approve these extraordinary, disproportionate powers, then there should be a chief superintendent or people of equivalent rank overseeing and supervising what is happening.

[Lord Anderson of Ipswich (CB)]

Before the noble Lord sits down, I should say that he refers to the Terrorism Act power of stop and search. Of course, Section 44 is now replaced by Section 47A, which adopts a similar model to Clause 11. Has the noble Lord noticed and does he have any comment on the provision that the power to authorise no-suspicion stop and search under Section 47A, which can be exercised only when there is a reasonable suspicion that an act of terrorism will take place, may be taken only by a senior police officer—in other words, a commander or an assistant chief constable?

[Lord Harris of Haringey (Lab)]

The noble Lord interrupted me before I sat down, although I regarded myself as having sat down. The noble Lord, Lord Anderson, is absolutely correct. The reason Section 44 was changed was because of the concerns that I have expressed. The conditions on that, in circumstances when most sensible people would regard it as appropriate, perhaps, to have in your back pocket the power to stop without suspicion, were tightened in a way which this Bill would not allow.

National Security Bill

Lord Anderson of Ipswich Excerpts

3rd reading
Monday 13th March 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I still feel quite grumpy about the Bill, but I accept that the Government have moved a little. I very much hope that, when it gets back to the other place, Members there will perhaps see fit to introduce stronger protections for journalists. I understand that something has gone into the Public Order Bill, but I think something should have been in this Bill as well.

[Lord Anderson of Ipswich (CB)]

My Lords, we on these Benches are often critical of the Government—of either colour, I understand—so it is perhaps appropriate to record my appreciation, at least, to the Minister and indeed to the Security Minister, for the patience with which they listened to us, but also for the imagination with which they reacted, not simply producing cosmetic tweaks that resulted in dogs being called off, but being prepared to go back, particularly on the political tier of the foreign influence registration scheme, to first principles and to think it out again, with the consequence, I suspect, that we are now left with something of real value, rather than the bureaucratic nightmare with which we were threatened when the Bill left the Commons.

Amendment 1 agreed.