Beyond Brexit: Policing, Law Enforcement and Security (EUC Report)

Lord Anderson of Ipswich Excerpts

Friday 11th March 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, this country can be proud of its historic contribution to the EU’s joint effort on policing, law enforcement and security. We were not, of course, in at the start of everything. However, we can take credit for a great deal: the policy and legislative framework for countering terrorism, borrowed largely from our own; the reinvention of Europol as a vehicle for intelligence-based policing; the repurposing of Eurojust to accommodate our distinctive prosecutorial systems; the huge contribution made by our courts to resolving conflicts of laws under the Brussels convention and regulation; and the promotion of legislation—notably in relation to the use of data for crime-fighting—where UK influence in the Council and the Parliament gave much-needed emphasis to operational imperatives over some of the more academic notions of privacy.

All this provides a good example of the wider truth, perhaps better understood abroad than at home, that EU membership was not something sinister that others did to us but rather an effective vehicle for the export of British values and traditions to a reunited continent and a wider world. To be fair to the promoters of Brexit, the unravelling of police and judicial co-operation rarely featured in their vision of the sunlit uplands. The debate over the Protocol 36 opt-out had already convinced Theresa May and most others in government that the country’s security was better served inside than outside these EU mechanisms. Part 3 of the TCA was thus, to a large extent, an exercise in damage limitation with few, if any, gains to be expected. It is some comfort that, subject to anything the noble Lord, Lord Evans of Weardale, will say, co-operation between intelligence agencies will continue undiminished outside EU mechanisms.

I had the privilege of serving on the sub-committee that produced this report, chaired with deftness, humour and virtual conviviality by the noble Lord, Lord Ricketts, and serviced by our excellent staff. The litany of committees, contact points, liaison officers and double-keying described in its pages seems to me at least a poor exchange for the seamless operation and strategic leadership that we used to enjoy. Online crime in particular knows no borders, and policing needs to reflect that as far as possible, both at home and internationally. However, while there were predictable disappointments in the TCA, there were negotiating successes too. We have a solid base for closer integration in the future, although that integration is unlikely to be on British terms and its speed will no doubt be a function of political temperature as well as operational need.

I end with a few questions. Can the Minister tell us how the numbers of those being surrendered to the UK are holding up, given the loss of access to SIS II at the end of 2020 and the unwelcome fact that 12 member states, comprising more than half the population of the EU, have declared that they will be invoking their constitutional rules as a reason not to surrender their own nationals to the UK, or to do so only with their consent? Does the Minister know when the EU might, in the interests of its own people as well as ours, withdraw its short-sighted bar to UK accession to the Lugano Convention?

Lastly, Part 3 of the TCA depends on the maintenance of high standards on both human rights and the protection of personal data. Brussels is no doubt looking carefully at two recent consultations, by the Ministry of Justice on human rights reform, and by the DCMS, entitled Data: a New Direction. On data, the Centre for European Reform in a report of 15 November last year wrote:

“There are three scenarios, any one of which could kill the EU’s adequacy decision: the European Court of Justice … ruling that the UK’s intelligence gathering should have prevented the Commission granting adequacy; the Commission choosing to withdraw adequacy because the UK diverges too far from the GDPR in the future; or the UK unilaterally deciding to allow seamless transfers between the UK and third countries, which would probably compel the Commission to revoke the adequacy decision.”


Some of the proposals in the DCMS consultation seem in that context rather close to the bone. So my final question is: what assurance can the Minister give the House that Part 3 of the TCA will not be placed in jeopardy by the weakening of current protections for data and for human rights?

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

My Lords, I join noble Lords in thanking the noble Lord, Lord Ricketts, for securing this debate. I also thank those who contributed to the former European Union Committee’s thoughtful and insightful report Beyond Brexit: Policing, Law Enforcement and Security, which was published in March 2021. I echo his words on Ukraine. It is important that we work with our EU partners, particularly at the moment, and that we are a united force in efforts to support Ukraine and to support the refugees fleeing from Ukraine. I updated the House yesterday on the number of visas issued, which as of yesterday morning was 1,305. That figure is going up rapidly, which is a good thing.

The Government responded to the report at the time, but it is welcome that time has been found to discuss these important matters more fully. The report was informed by the work conducted by the Security and Justice Sub-Committee, which the noble Lord, Lord Ricketts, previously chaired. I pay tribute to the breadth of expertise on that committee, which has been replicated in its successor, the Justice and Home Affairs Committee.

The Security and Justice Sub-Committee’s work was instrumental in supporting parliamentary scrutiny as we sought to consider, and ultimately negotiate, our new relationship with the EU on law enforcement and criminal justice matters. To echo the words of the noble Lord, Lord Ricketts, and others, I am very pleased to be able to speak to this as it informs a lot of the aspects of my work and it has not been much debated in Parliament. Before we start, I also want to echo the points made by the noble Lord, Lord Evans of Weardale, on national security and intelligence sharing. The decisions about that are outwith the TCA and the EU, and that is a very good thing.

I will start with law enforcement and criminal justice in the TCA before responding to some of the points made during this debate. On the deal we secured, the Government were very clear in wanting to deliver a security deal with the EU that gave our law enforcement the tools and the co-operation it needs to keep the public safe. That is what we delivered. The UK-EU TCA was signed in December 2020 and was implemented in domestic law via the European Union (Future Relationship) Act. Part 3 of the TCA established our new law enforcement arrangements, and they are the terms we have been operating under since 1 January 2021. I think noble Lords will bear in mind that this period coincided with a global pandemic, so in some ways time will tell better how this is operating because we have been in such an unprecedented environment.

The agreement was unprecedented for the EU in terms of co-operation with a third country, and through it we were able to secure a high level of co-operation on key capabilities, including: streamlined extradition arrangements, arrangements with Europol and Eurojust that reflect the scale of our contribution to these agencies; arrangements enabling the continued, fast and effective exchange of national DNA and fingerprint data and future exchange of vehicle registration data via the Prüm system; arrangements enabling the fast and effective exchange of criminal records data; and arrangements providing for continued transfer of passenger name record data from EU airlines. We were pleased to see that the report broadly welcomed these arrangements and the co-operation that they facilitate.

The operation of the new arrangements has been discussed positively and negatively in the debate. I am pleased to note that during the first meeting of the Specialised Committee on Law Enforcement and Judicial Cooperation, the UK and EU agreed that overall implementation of the law enforcement and criminal justice part of the TCA has gone well and that the agreement is operating effectively. For example, the exchange of DNA and fingerprint data continues. Since connecting to the Prüm biometric data-sharing system in July 2019, the UK has received more than 13,000 DNA and fingerprint matches from EU member states. EU member states have collectively received more than 45,000 matches from UK data over the same period. This allows UK and EU law enforcement to progress serious cases where crime scene evidence would otherwise be unidentified, such as in rape and murder cases.

Significant volumes of criminal record data continue to be exchanged between the UK and EU member states, enabling us to better protect the public. Between April and June 2021, we received around 3,500 conviction notifications from EU member states relating to UK nationals. This compares with around 2,500 notifications for the same period in 2020. UK law enforcement and criminal justice partners also continue to co-operate via EU agencies Europol and Eurojust, including on issues such as small boats. The transfer to the UK of PNR data for flights between the EU and the UK continues. Processing of PNR data during 2021 enabled the disruption of several hundred attempts by organised immigration crime groups to facilitate the illegal entry of individuals to the UK on scheduled flights.

Since the committee’s report was published, a number of the outstanding issues the committee noted have been resolved. The Partnership Council, the mechanism for supervising and overseeing operation of the TCA, has been established and met for the first time in June 2021. The Specialised Committee on Law Enforcement and Judicial Cooperation has also been set up and met for the first time in October 2021. The agenda and minutes were made available to Parliament and published on GOV.UK.

As foreseen in the TCA, we have signed working arrangements with Europol and Eurojust. These came into effect last year and set out the practical and operational detail of co-operation under the TCA, putting operational co-operation with these institutions on a firm footing for the future. We have also made important progress concerning the evaluation of our DNA and fingerprint capabilities under the Prüm system, as required by the TCA.

While the terms of our co-operation with EU member states may have evolved, shared threats remain ever present. Clearly, Russia’s invasion of Ukraine, a flagrant breach of international law and norms, is a stark reminder of that. I hope I have made it very clear to noble Lords that the UK is firmly committed to co-operating with our EU partners on matters of shared security. The TCA puts us in a very strong position from which to move forward.

I turn now to some of the specifics raised by a number of noble Lords, in no particular order. I think the most commonly asked question was about our disconnection from SIS II. The EU took the position throughout negotiations on the TCA that it was legally impossible for a third country outside the Schengen area to participate in SIS II. That means we have returned to co-operating with EU member states via Interpol, as we did before 2015, and bilateral channels, as we have done throughout with other international partners outside the EU.

Having now returned to Interpol channels, we are routinely exchanging information with EU member states on persons of interest, including missing and wanted individuals, and on lost and stolen documents. We are also investing in longer-term technical capabilities to support law enforcement and data sharing. This will further enhance the UK’s connectivity to Interpol by providing UK law enforcement with access to Interpol alerts on people in real time.

The noble Lords, Lord Anderson, Lord Ricketts and Lord Paddick, and maybe others, asked about Interpol and double-keying. We are committed to working with the wider international community to ensure that Interpol continues to be an effective tool for law enforcement co-operation. For example, the Government secured commitments at the meeting of G7 Interior Ministers in 2021 to enhance the effectiveness and operational value of Interpol’s tools and capabilities.

On the differences between data being available via Interpol versus what was previously possible with SIS II —I think this goes some way to answering the question from the noble Lord, Lord Ponsonby—there is an automated upload of incoming Interpol circulations to domestic systems. Information is available via policing systems within the hour of receipt. If the NCA is notified that a case is urgent, specific alerts can be uploaded to domestic systems more rapidly. As noble Lords touched on, we are also investing in longer-term technical capabilities to support law enforcement data sharing. This will further enhance the UK’s connectivity to Interpol by providing UK law enforcement with access to Interpol alerts on people in real time.

On progress on I-LEAP, the first priority of the programme is to further enhance connectivity to Interpol. We recently launched two pilots that are testing I-LEAP’s real-time connection to Interpol alerts on subjects of interest in a live environment. Its gradual rollout to UK policing will commence later this year, following the conclusion of the two pilots.

Several noble Lords referred to the new extradition arrangements we have put in place. The agreement with the EU provides for streamlined extradition arrangements based on the exchange of warrants between judicial authorities, similar to the EU’s arrangements with Norway and Iceland. They will enshrine key domestic extradition safeguards that were previously not contained in the EAW, or European arrest warrant, framework decision. This includes making it clear that a person cannot be surrendered if their fundamental rights are at risk, if extradition would be disproportionate or if they are likely to face long periods of pretrial detention. We estimate that these new arrangements are functioning well. Since January 2021, arrests on extradition requests between the UK and the EU and vice versa have continued, and cases are proceeding through the courts.

On extradition disruption, there are some very specific issues concerning a handful of member states’ operation of the new extradition arrangements. These issues have largely been resolved. Where this remains live with one member state, we continue to engage to resolve this as swiftly as possible.

The noble Lord, Lord Anderson, asked about bars on extradition of own nationals. They are a common feature of arrangements outside the EAW, which neither the UK nor the EU sought to retain during the Brexit negotiations. That is why the TCA enables countries with a relevant fundamental principle or practice of their domestic law to refuse to extradite their nationals to face trial or serve a sentence.

Through the TCA we have ensured that alternative paths to justice are available for those who want to face trial. The agreement provides for a mechanism whereby a person could be extradited to the UK, face trial then return to their home country to serve their sentence.

The noble Lord, Lord Hannay, asked about statistics on this. The NCA, the National Crime Agency, is responsible for the collation and publication of data relating to extradition requests to and from the UK and EU member states, and it publishes the data on an annual basis. The last set of data was published in May 2021, and I understand that the next set is due to be published in spring 2022.

Noble Lords asked about the extension to the Prüm evaluation period and whether the EU could suspend Prüm co-operation. The EU and the UK mutually agreed to trigger the provisions in the TCA, which had foreseen that an extension might be necessary. Prüm DNA and fingerprint exchanges are continuing as normal. Following the visit of the EU evaluation team to the UK on 23 to 25 November last year, I remain confident that the UK will satisfy the requirements of the EU evaluation in this area and retain access to DNA and fingerprint exchange capabilities.

The noble Lord, Lord Ricketts, asked why the UK does not exchange vehicle registration data with EU member states under Prüm. We are working with the DVLA and UK policing partners to prepare our systems for connection. The UK will be required to undergo a pre-connection evaluation, including test exchanges and a pilot run, when the time comes.

The implementation period for PNR data transfers has been extended. We agreed an implementation period while the UK scopes, designs and implements a capability that meets the new and unique requirement in the TCA for deletion of EU PNR data that does not need to be retained.

The noble Lord, Lord Ricketts, and other noble Lords also asked about Europol and Eurojust. The agreement provides for a relationship with Europol and Eurojust that reflects the scale of our contribution to the work of the agencies and facilitates continued close and effective co-operation. For example, it preserves the UK’s access to Europol’s core capabilities, including the presence of a UK liaison bureau in agency headquarters and access to the agency’s valuable multilateral co-ordination and analytical functions. It also demonstrates the UK and EU’s intent to ensure that data exchanges happen as quickly as possible.

On our relationship with Europol, which both the noble Lord, Lord Ricketts, and my noble friend Lord Davies of Gower asked about, the UK co-operates closely with Europol via the terms of the TCA as well as the UK-Europol working and administrative arrangement, in a way which protects and enhances respective capabilities.

I am running out of time, but I want to say something about Russia and the relationship with Interpol. We will continue to work with Interpol to uphold the organisation’s integrity and to ensure that members are not able to misuse its systems for illegitimate purposes. We are confident that, with strong, continuous support from the UK and our international partners, Europol’s robust checks and mechanisms will be sufficient to prevent misuse of its systems by any member.

The noble Lords, Lord Anderson and Lord Ricketts, asked about data adequacy. Our data protection standards were rightly recognised in our adequacy decisions secured in June of last year. We remain committed to high data protection standards, and this commitment is reflected in the data protection safeguards incorporated into the TCA. Adequacy decisions complement the TCA, which delivers a comprehensive package of capabilities that ensure that we can continue to work with counterparts across Europe to tackle serious crime and terrorism, protecting the public and bringing criminals to justice.

On Part 3 of the TCA—law enforcement and criminal justice provisions—we agree that good data protection underpins international law enforcement co-operation, which is why the UK is firmly committed to maintaining high data protection standards now and in the future. Co-operation under Part 3 is not dependent on adequacy, and there is no legal link between the two. This would have been unprecedented for an agreement of this nature. The noble Lords, Lord Hannay and Lord Ricketts, asked a pertinent question on DCMS data reform. The EU rightly recognised our standards during the adequacy assessment process, but, as the European Data Protection Board and the European Commission have reiterated, a third country does not need identical legislation to be considered equivalent.

I turn finally—as I am out of time—to the Lugano Convention. The noble Baronesses, Lady Goudie and Lady Hamwee, and the noble Lord, Lord Ponsonby, asked about this. The UK’s application to accede to the convention is sensible and pragmatic, and forms a good basis for continued civil judicial co-operation. It is clearly in the mutual interests of the UK and EU/EFTA citizens, families and businesses. It is an international agreement specifically open to third parties with no requirement for single market membership, and the UK meets all the criteria for accession. Switzerland, Norway and Iceland have consented to the UK joining but, on 23 June last year, the European Commission issued a formal diplomatic note to the Swiss depositary, stating that the European Commission was

“not in a position to give its consent”

to UK accession. This means that the depositary cannot at present invite the UK to join. Several member states see value in our accession to the Lugano Convention and express warm support while others are still undecided or, we might say, lukewarm. We will continue to engage with EU member states about our Lugano application but, given the EU’s stated position, it does not seem likely that they will consider our application at this time.

In concluding, I thank noble Lords, particularly the noble Lord, Lord Ricketts, not only for their contribution during the debate but for the insight, dedication and hard work that has gone into producing the Beyond Brexit report.

[Lord Anderson of Ipswich (CB)]

Before the Minister sits down, she made a most intriguing reference when discussing extradition to a small handful of states where specific problems had presented themselves, and to one state, if I heard right, where those problems continue. Is she able to be any more specific?

[Baroness Williams of Trafford (Con)]

I wondered if the noble Lord might intervene on that. Yes: it is Cyprus.

Nationality and Borders Bill

Lord Anderson of Ipswich Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

14: After Schedule 1, insert the following new Schedule—
“SCHEDULE 1A DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHTThis is the Schedule to be inserted after Schedule 4 to the British Nationality Act 1981—“SCHEDULE 4A Section 40(5E)DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHTDeprivation without notice: application to Special Immigration Appeals Commission1_(1) If the Secretary of State proposes to make a conducive grounds deprivation order without notice, the Secretary of State may apply to the Special Immigration Appeals Commission under this paragraph.(2) If the Secretary of State makes a conducive grounds deprivation order without notice, the Secretary of State must apply to the Special Immigration Appeals Commission under this paragraph within the period of seven days beginning with the day on which the order is made (unless an application has already been made under sub-paragraph (1)).(3) The function of the Commission on an application under this paragraph is to determine whether, in respect of each condition in section 40(5A) on which the Secretary of State relies, the Secretary of State’s view is obviously flawed. (4) In determining that question, the Commission must apply the principles that would be applicable on an application for judicial review.(5) If the Commission determines that the Secretary of State’s view is obviously flawed in respect of each condition in section 40(5A) on which the Secretary of State relies—(a) if the order in question has not been made, section 40(5) applies in relation to the order (notwithstanding section 40(5A));(b) if the order has been made, the Secretary of State must, within the period of 14 days beginning with the day on which the Commission made the determination—(i) give late notice in respect of the order,(ii) revoke the order, or(iii) make an application under sub-paragraph (6).(6) The Secretary of State may (at any time) make an application to the Special Immigration Appeals Commission for fresh consideration of a decision the Secretary of State has made under section 40(5A) where—(a) in the opinion of the Secretary of State, circumstances have changed materially since the determination mentioned in sub-paragraph (5), or(b) the Secretary of State wishes to provide further evidence to the Commission.Sub-paragraphs (3) to (5) apply to an application under this sub-paragraph.Deprivation of citizenship without notice: review2_(1) Sub-paragraphs (2) to (5) apply if—(a) the Secretary of State makes a conducive grounds deprivation order without notice, and(b) the Special Immigration Appeals Commission has not made the determination mentioned in paragraph 1(5) (Secretary of State’s decision obviously flawed).(2) The Secretary of State must, at least once in every review period, review the circumstances of the person in respect of whom the order was made (so far as known) and decide whether to give late notice in respect of the order.(3) On such a review, the Secretary of State must decide to give late notice to the person unless it appears to the Secretary of State that any of the conditions in section 40(5A) is met (reading any reference in those provisions to notice under section 40(5) as a reference to late notice).(4) If the Secretary of State decides at any point to give late notice in respect of the order—(a) the Secretary of State must give the notice as soon as reasonably practicable, and(b) once the notice is given, sub-paragraph (2) ceases to apply in relation to the person.(5) If on the expiry of the final review period the Secretary of State has not given, or has not decided to give, late notice in respect of the order, the Secretary of State must make an application to the Special Immigration Appeals Commission within the period of seven days beginning with the day after the final day of that review period.(6) Sub-paragraphs (3) to (6) of paragraph 1 (except sub-paragraph (5)(a)) apply for the purposes of an application under sub-paragraph (5) as they apply for the purposes of an application under that paragraph.(7) For the purposes of this paragraph, each of the following is a “review period”— (a) the period of four months beginning with the day after the day on which the Special Immigration Appeals Commission first determined an application in relation to the order under paragraph 1, and(b) each of the next five successive periods of four months.Interpretation3_(1) In this Schedule, references to making a conducive grounds deprivation order without notice are to making an order under section 40(2) without giving notice under subsection (5) of that section (in reliance on subsection (5A) of that section).(2) In this Schedule, “late notice”, in respect of an order under section 40(5), means written notice to the person in respect of whom the order was made specifying—(a) that the Secretary of State has made the order,(b) the reasons for the order, and(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.””Member’s explanatory statement
This amendment inserts a new Schedule into the British Nationality Act 1981, to make provision for judicial oversight of decisions to deprive a person of their citizenship status without notice on grounds that the deprivation is conducive to the public good.

[Lord Anderson of Ipswich (CB)]

My Lords, the circumstances in which British citizenship may be removed were keenly debated in Committee. This group concerns a narrower issue: whether it should be possible to remove someone’s citizenship without giving them notice of it at the time and, if so, in what circumstances. Clause 9 struck me as so problematic that, in Committee, I tabled a stand part notice; that is echoed today by Amendment 20 in the name of the noble Baroness, Lady D’Souza. In Committee, I asked the Minister to take Clause 9 away and challenged her, if she could make the case for such an extraordinary power, to come back with a version of it that is far more limited in scope and subject to proper safeguards and accountability.

The Minister responded to that challenge as positively and wholeheartedly as I could have hoped. I pay tribute to her, to her fellow Minister, Tom Pursglove, to the Bill team and to those at the Home Office and in agencies with whom I have discussed these issues—and I pay no less tribute to the NGOs and individuals who have impressed on me the dangers of Clause 9. The result, after what I think I can fairly describe as very considerable movement on the part of the Government, is the first six amendments in this group, together with Amendment 85, which concerns commencement. They have been pulled into proper shape by the Office of the Parliamentary Counsel, and I hoped that they could be tabled last Monday as government amendments, with my support, but an extra day was needed to conclude our discussions, so they appear under my name. I am grateful to the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady McIntosh of Pickering, for adding their support.

These amendments achieve four important things. The first is a far more restricted range of circumstances in which notice can be withheld. The original Clause 9 would have allowed the Secretary of State to withhold notice whenever that appeared to her to be in the public interest. Amendments 15 and 16 remove the subjective element and provide that notice may be withheld only if the Secretary of State does not have an address for service, or if she reasonably considers it necessary on one of the four exceptional grounds specified in Amendment 16.

Let me illustrate my understanding of how those exceptional grounds could arise in practice. A terrorist may be living in a safe house here, or more likely abroad, without realising that his whereabouts are known to the authorities. To require a notice of citizenship deprivation to be served on him at that address would reveal to him that he is the object of covert surveillance, contrary to the interests of national security: proposed new sub-paragraph (i). The same may be true of a participant in “organised or serious crime”—the phrase being taken from Section 1 of the Serious Crime Act 2015, which defines the remit of the National Crime Agency: proposed new sub-paragraph (ii). If intelligence as to location was supplied by a foreign liaison partner which does not wish its cover to be blown, notification at that address could jeopardise our intelligence relationship with that country: proposed new sub-paragraph (iv). The person in question might be, for example, with a dangerous armed group in a failed state. To require a courier to travel to such places to serve notice, at great personal risk, would be wrong: hence proposed new sub-paragraph (iii).

I do not believe that these grounds will be commonly advanced—it seems that, with a degree of ingenuity, workarounds have been found in the past—but neither, I suggest as a former independent reviewer of terrorism legislation, should they be dismissed as fanciful. It may be relevant that the laws of two of our closest allies are, if anything, more broadly drawn than this amendment. The New Zealand Citizenship Act 1977 allows for notice of deprivation to be dispensed with if it would be for any reason “not practicable” to serve it on the subject. The Australian Act of 2020 allows the Minister to determine that notice should not be given if it could prejudice the security, defence or international relations of Australia or Australian law enforcement operations.

The second feature of these amendments is to introduce powerful safeguards for conducive grounds deprivations that were entirely absent from the original Clause 9. In New Zealand, they have judicial scrutiny of these decisions. In Australia, they have regular ministerial review. Elements of both those safeguards are contained in the new Schedule 4A, which is set out in Amendment 14 and referred to in Amendments 17 and 19.

The judicial safeguard is in paragraph 1 of the schedule. If the Secretary of State wishes to withhold notice, she must apply to a superior court of record—the Special Immigration Appeals Commission—in advance or within seven days. SIAC will examine her reasons and decide, applying judicial review principles, whether her assessment is obviously flawed. That is the same test that is applied to the making of terrorism prevention and investigation orders under the TPIM Act 2011. SIAC will no doubt develop similar rules to deal with it, which might, in an appropriate case, provide for the appointment of a special advocate. If she does not succeed on her first attempt or on a subsequent application, which must be based on material change of circumstances or further evidence, the Secretary of State must either give notice in the normal way or revoke the deprivation order altogether.

The review safeguard is in paragraph 2 of the schedule. The Secretary of State must consider, three times a year for two years, whether the reasons for non-notification remain valid. If, after the sixth review, she still resists notification, she must make a further application to SIAC, which will, once again, give independent scrutiny to her decision.

The twin requirements of judicial approval and regular review will place a significant burden on the Secretary of State in any case where she wishes to exercise this power. I make no apology for that. Under the Immigration Rules, as they stood between 2018 and 2021, it was easy—far too easy—not to give notice but simply to record it on the file. That path was taken in no fewer than 29 of the 45 conducive grounds deprivations, mostly related to national security activity abroad, that were made in 2019, 2020 and 2021. These amendments not only require non-notification to be a last resort on paper; they make it hard work in practice. They should ensure that, in its own interests, the Home Office will take this exceptional course only when there really is no possible alternative.

The third feature of these amendments relates to appeals. Of course, a subject cannot appeal against a notice of deprivation until he has become aware of it. But Amendment 18 provides that time for appeal will begin to run only once notice has been given. It will not, therefore, be necessary to rely on the discretion of the court to extend time for appeal in cases where deprivation has not been notified at the time.

The fourth and final feature is in the proposed new subsections 5(c) and (d) inserted by Amendment 18. Any person whose citizenship was removed without notice must be informed of that fact, with reasons and information about appeal rights, as soon as they make themselves known to the Home Office, whether within the two-year review period or thereafter; for example, this might be by seeking consular assistance or a fresh passport.

Amendment 18 has another significant and, I would suggest, highly beneficial effect. The point has been well made by other noble Lords that upstanding citizens of this country, notably dual citizens, may be anxious about the removal of their citizenship without their knowledge. Amendment 18 provides such people with a means of reassurance. They have only to contact the Home Office to be told whether this has happened or whether, as will almost always be the case, it has not.

In Committee, the noble Lord, Lord Blunkett, challenged the House to

“find a way forward on Report that takes away the genuine fear from millions of people who believe—erroneously, but they believe it—that Clause 9 as drafted and the implementation of further measures will put them and their families at risk”.—[Official Report, 27/1/2022; col. 518.]

These amendments rise to that challenge. They should ensure that non-notification is confined to those rare cases where it is truly necessary, and they are subject to strong safeguards, including regular review, judicial scrutiny and a right to be informed on request.

I come finally to subsections (5) to (7) to Clause 9, which seek to limit the effect of the D4 case by providing that an unlawful failure to notify a pre-commencement deprivation order should not affect the validity of that order. I will listen carefully to my noble friend Lady D’Souza develop her manuscript amendment to remove those clauses, but in the meantime, to assist our deliberations, I ask the Minister to give two assurances relevant to that amendment. First, will she confirm that anyone subject to a pre-commencement deprivation order will be informed of that fact if they contact the Home Office, by analogy with proposed new subsections (5C) and (5D), as inserted by Amendment 17? They would then be in a position to proceed with any substantive appeal. Secondly, will she confirm, by analogy with Amendment 18, that the Home Office will not suggest that any of these people are out of time for appeal as a consequence of the interval between the decision to remove their citizenship and the giving of notice?

If my amendments are accepted, and those assurances given, I believe that we will have played our part as a revising Chamber and achieved a broadly acceptable balance. Opinions on citizenship removal will, of course, continue to differ, but the aggravating factor of removal without notice will be strictly confined and properly safeguarded for the future, as it was not in the Immigration Rules as they stood prior to the D4 judgment of last year, and as it was not under Clause 9 as it was passed by the Commons. I beg to move my amendment and, if necessary, I will test the opinion of the House.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am very grateful to the Minister for her support in drafting these amendments, and I hope that she will give an assurance that the Government do, indeed, support these amendments. I thank the noble Lord, Lord Anderson of Ipswich, for addressing many of the concerns that I raised in Committee, particularly those expressed to me by the Law Society of Scotland, which was extremely dissatisfied that, in the original Clause 9, the Government had not fully justified the removal of citizenship without notifying the affected person. It asked that this clause be reconsidered, and I am grateful to the noble Lord for doing so.

Equally, in Committee, I raised the concerns expressed to me by the European Network on Statelessness in its briefing. It was very concerned that Clause 9 as drafted would

“have severe impacts on the rule of law and on a person’s fundamental rights”,

and that, as drafted, Clause 9

“disregards many of the UK’s international obligations, including the prohibition of arbitrary deprivation of nationality, the obligation to avoid statelessness, and the right to a fair hearing.”

In its view, the UK Government

“has not provided any justification as to why such a restriction on fundamental rights is needed.”

I pay tribute to the Minister and the noble Lord, Lord Anderson of Ipswich; many of my concerns have been addressed. I support the amendments introduced by the noble Lord, Lord Anderson, and support the reasons that he has given. The restrictive range of circumstances has been greatly reduced in which a citizen’s rights could be taken away. I support the powerful safeguards he set out as to why a citizen could be deprived of their citizenship, the rights of appeal, the provision that a citizen must be informed that their citizenship is going to be removed and the reassurance that he set out that could be given by condition C at that time. I support the amendments.

--- Later in debate ---

I hope that the noble Baroness, Lady Bennett of Manor Castle, will not press Amendment 22, and that the noble Baroness, Lady D’Souza, will not press Amendment 20, but the Government are content to accept the amendments from the noble Lord, Lord Anderson.

[Lord Anderson of Ipswich (CB)]

I am grateful to all noble Lords who spoke in this debate on a subject that I suspect none of us found particularly easy. I do not want to pre-empt anything, but it is possible, having heard the debate, that my amendments may not be very controversial. My noble friend Lord Carlile was alone in suggesting that these amendments go too far; he always was a little bit tougher than me. The real question for your Lordships might be whether they go far enough—whether, in short, we stick with my amendments or, as the opposition Front Benches maintain, twist by removing the whole clause.

The manuscript amendment shone a spotlight on subsections (5) to (7), which my amendments do not touch. With great respect to the noble Baroness, Lady D’Souza, it is not right that the effect of those subsections is that pre-commencement deprivation orders would, as she put it, not be subject to scrutiny. Their effect is rather that a pre-commencement deprivation would not be invalid purely because it was served to the file, in accordance with the Immigration Rules then in force.

Subsections (5) to (7) do not prevent a person who becomes aware of the deprivation—as the Minister just confirmed just now, they have only to ask—appealing it on any substantive ground. Indeed, the Minister also just confirmed, in providing the other undertaking that I sought, that the Home Office would not suggest that such appeals were out of time.

As to the suggestion that Clause 9 should be removed in its entirety, when I secured the agreement of the Government to my amendments, noble Lords will understand that it was not with a view to pocketing the gains and then asking for more. Therefore, I cannot in all conscience support that amendment myself, either as a tactical gambit or in the substance. I do, however, support my own amendments and I beg to move.

Amendment 14 agreed.

--- Later in debate ---

Moved by

[Lord Anderson of Ipswich]

15: Clause 9, page 11, line 31, leave out “it appears to the Secretary of State that”
Member’s explanatory statement
This amendment removes the subjective element from the condition in paragraph (a) of new subsection (5A)(notice of deprivation of citizenship not required if Secretary of State does not have the requisite information).

Surveillance Camera Code of Practice

Lord Anderson of Ipswich Excerpts

Wednesday 2nd February 2022 Lords Chamber

I hope that the Minister will carefully respond to what I have said today and that all of us can work to regulate the use of this technology and to make the presence of Hikvision and Dahua Technology in the UK history.

[Lord Anderson of Ipswich (CB)]

My Lords, as expectations of privacy are lower in public places than at home, overt surveillance, such as by street cameras, is generally seen as a lesser intrusion into our liberties than either covert surveillance by intelligence agencies—the subject of my 2015 report, A Question of Trust—or so-called surveillance capitalism, the monitoring and monetising of our personal data by big tech. However, that assessment has been cast into doubt by automatic facial recognition and similar technologies, which potentially enable their users to put a name to every person picked up by a camera, to track their movements and to store images of them on vast databases that can be efficiently searched using AI-driven analytics.

Those databases are not all owned by the police: the company Clearview AI has taken more than 10 billion facial images from public-only web sources and boasts on its website that its database is available to US law enforcement on a commercial basis. This technology, part of the information revolution in whose early stages we now find ourselves, can now more be stopped than, two centuries ago, could the steam engine, but, as has been said, the abuses of overt surveillance are already obvious in the streets of China and Hong Kong. To show the world that we are better, we must construct for those who wish to use these powers, as our forebears did in the Industrial Revolution, a democratic licence to operate.

We start in this country with a number of advantages. We have a strong tradition of citizen engagement and, as the noble Lord, Lord Alton, said, a culture of policing by consent. We inherited strong data protection laws from the EU and we still have legislation that gives real protection to human rights. We even had—almost uniquely in the world—a Surveillance Camera Commissioner, Tony Porter. I pay tribute to the extraordinary work that he did, on a part-time basis and without any powers of inspection, audit or sanction, including the issue of a 70-page document with detailed recommendations for police users of this technology.

I regret that the Surveillance Camera Code of Practice is, by comparison, a slim and highly general document. It is not comparable to the detailed codes of practice issued under the Investigatory Powers Act 2016 and overseen by the world-leading Investigatory Powers Commissioner’s Office. The designated bodies which must have regard to it are confined to local authorities and policing bodies; they do not include, as the noble Lord, Lord Clement-Jones, said, health, education or transport providers, private operators or, indeed, the Government themselves. Consultation on the latest version made no attempt to involve the public but was limited to statutory consultees.

The recent annual report of Tony Porter’s impressively qualified but thinly spread successor, the Biometrics and Surveillance Camera Commissioner, Fraser Sampson, commented that his formal suggestions for the code were largely dismissed as being “out of scope”. He added:

“That my best endeavours to get even a sentence reminding relevant authorities of the ethical considerations were rejected on the grounds that it would be too burdensome is perhaps an indication of just how restrictive this scope—wherever it is to be found—must have been.”


I do not know whether the highly general provisions of the code will be effective to improve local policies on the ground and ensure the consistency between them that my noble and learned friend Lord Etherton and his colleagues gently pointed out was desirable in their judgment in the Bridges case. In the absence of an IPCO-style inspection regime, perhaps we never will know. I suspect that the need not to stifle innovation, advanced in the code as a justification for its brevity, is a less than adequate excuse for the failure to do more to develop the code itself against a changing legal and technological background.

The words of the Motion are harsher than I would have chosen but, as the Snowden episode a few years ago showed, public trust in these increasingly intrusive technologies can be suddenly lost and requires huge effort to regain. I hope that the next revision of this code will be more energetic and ambitious than the last.

[Baroness Falkner of Margravine (CB)]

My Lords, it is a pleasure to follow three incredibly distinguished speakers in this debate. With reference to the remarks of the noble Lord, Lord Clement-Jones, attributed to the Minister, I must say that if this is a subject for geeks, I am delighted to join the band of geeks.

I fear I shall demonstrate a level of ignorance tonight, because I am a newcomer to the debate. In fact, I emailed the noble Lord, Lord Clement-Jones, earlier today because I had only just realised that it was taking place tonight. I am also speaking in a hybrid capacity—I now understand the true meaning of “hybrid”—so my opening remarks will be personal, but for those that follow, I will need to declare an interest, so I shall do so in advance of making those remarks.

In my opening remarks I have to say just a few things that demonstrate what a parlous state we are in as a country in terms of respect for human rights. The level of permissiveness in the capture—state capture, policy capture—of institutions that operate in authoritarian regimes, a list of which the noble Lord, Lord Alton, has given us, is truly staggering. We bang on about how fantastic our sanctions regime is, and so on, yet these companies, many of them Chinese, as the noble Lord described, operate here with complete impunity and we seem entirely content to allow them to do so, while we also recognise, in our foreign policy statements, that some of these countries have very ignoble intentions towards any freedom-loving democracy. I know the noble Baroness represents the Home Office, but I hope it is something the Government at large will take account of, because commercial surveillance, commercial espionage, commercial authority and commercial capture of the economy are all things we need to be incredibly vigilant about. One needs only to look at Russia’s capture of the German political debate, through Nord Stream 2, and what we are facing now with the Ukraine issue, to understand what is being discussed here by the noble Lord, Lord Alton.

Those are my general remarks. My remarks on it as chair of the Equality and Human Rights Commission now follow. There, I have to say to the noble Lord, Lord Clement-Jones, that I am so relieved he managed to secure this regret Motion. Articles 8, 9, 10, 11 and 14—the general article against discrimination—of the European Convention on Human Rights are engaged in this, so the fact that we get a document as thin as this is truly remarkable. I understand why only statutory bodies were consulted—it was a means for the Government to get it through in six weeks without being very concerned about broader concerns—but it is regrettable. The Bridges case directly engaged the public sector equality duty. The Equality and Human Rights Commission is the regulator of the public sector equality duty, yet the idea that it was not consulted, post the judgment, on how we might strengthen the code in light of that judgment is a matter of great deep regret to me.

I have a couple of points on the code. In paragraph 10.4 we are told that effective review and audit mechanisms should be published regularly. The summary of such a review has to be made available publicly, so my question to the noble Baroness is: why only a summary? In the interests of transparency and accountability, it is essential that these bodies regularly give a full explanation of what they are doing. The public sector equality duty requires legitimate aims to be addressed objectively, verifiably and proportionately. We, the public, will not be capable of assessing whether those tests have been met if there is only an executive summary to go by.

My other point concerns section 12.3, “When using a surveillance camera” and so on. The third bullet point requires “having due regard” and states that

“chief police officers should … have regard to the Public Sector Equality Duty, in particular taking account of any potential adverse impact that the LFR algorithm may have on members of protected groups.”

Again, no practical examples are provided in this rather thin document. We know from publishing statutory codes that the public, and even the bodies that use this technology, want practical examples. A code is effective, of value and of use, to the providers as well as the public, only when it gives those practical examples, because you cannot test the legal interpretation of those examples until you have that evidence before you.

We, the EHRC, have been unable at short notice to assess whether the code is in compliance with the Bridges judgment—I wonder, myself, whether it is—but we do not take a clear position on the legality of the revised code, and I should say that in clarification. However, we have recommended previously that the Government scrutinise the impact of any policing technologies, in particular for the impact on ethnic minorities, because we have a mountain of evidence piling up to say that they discriminate against people of darker skin colour.

We wanted mandatory independent equality and human rights impact assessments. These should ensure that decisions regarding the use of such technologies are informed by those impact assessments and the publication of the relevant data—this takes me back to my point about executive summaries—and then evaluated on an ongoing basis, and that appropriate mitigating action is taken through robust oversight, including the development of a human rights compliant legal, regulatory and policy framework. That is in conformity with our role as a regulator. We have recommended that, in light of evidence regarding their inaccuracy, and potentially discriminating impacts, the Government review the use of automated facial recognition and predictive programs in policing, pending completion of the above independent impact assessments and consultation processes, and the adoption of appropriate mitigation action. We await action from the Government on the basis of this recommendation.

School Trips: Passport and Visa Requirements

Lord Anderson of Ipswich Excerpts

Wednesday 2nd February 2022 Lords Chamber

Asked by

[Lord Anderson of Ipswich]

To ask Her Majesty’s Government what assessment they have made of the consequences of current passport and visa requirements on the number of school trips from continental Europe to the United Kingdom.

[Lord Anderson of Ipswich (CB)]

My Lords, I beg leave to answer the Question in my name on the Order Paper.

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

My Lords, I think that the noble Lord wants to ask the Question. Before he does so, perhaps I may say to the House that yesterday I was quite insistent that not only had I sent out a letter to the noble Lord, Lord Dubs, but that the whole Committee had had a copy of it. I had cleared the letter but it had not gone out. I thank the noble Lord, Lord Paddick, for alerting me to that this morning and I apologise unreservedly to the Committee and the House.

We no longer accept national identity cards as a valid travel document from EU, EEA and Swiss visitors to the UK. The experience at the UK border since the change has been positive, with EU, EEA and Swiss citizens making the switch to use their passports for travel. We do not plan to change that approach.

[Lord Anderson of Ipswich (CB)]

Around 1 million European children, mostly from France and Germany, used to come to the UK each year on school trips. Now that people need passports and, in some cases, visas, bookings for the UK are widely reported to have collapsed. Ireland and even Normandy are stepping in. Will the Government either bring back ID card travel for these low-risk groups or devise a simple group travel scheme that will let us welcome them to this country?

[Baroness Williams of Trafford (Con)]

My Lords, it is quite early in the implementation to say just which way overall bookings are going but certainly Ireland is reporting positively on this. Of course, there are in existence such things as collective group passports, although they will decline over time. However, we do not plan to bring ID cards back and it is important that we have secure documents such as passports at the border.

Nationality and Borders Bill

Lord Anderson of Ipswich Excerpts

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

It is not often that life gives you the chance to go back, start again and get it right the second time around. This is one of those cases and I urge noble Lords in all parts of the House to seize it.

[Lord Anderson of Ipswich (CB)]

My Lords, I shall speak to oppose the Question that Clause 9 stand part and to my Amendment 28, with my thanks to noble Lords from four different parties who have added their names. Unlike Amendments 27, 29 and 30 to 32, my proposals would not affect the grounds on which citizenship can be withdrawn, though, in partial sympathy with those amendments, and subject to hearing the Minister, I suspect that the current “conducive to the public good” criterion, introduced in 2006, as the noble Lord, Lord Moylan, has just said, is broader than it needs to be.

My stand part amendment gives effect to proposals of the Joint Committee on Human Rights and your Lordships’ Constitution Committee. Grateful as I am to the Minister for her letter on Clause 9—and I really am—it does not allay my profound concerns about a new power to remove a person’s citizenship not just without giving reasons, but without ever having to tell them that you have done so.

I would like first to probe rather further the need for Clause 9, by which I mean the practical need rather than the theoretical points set out in the letter. A Written Question in my name of 5 January asked in how many cases the need to give prior notification had prevented use of the deprivation power. The Minister replied:

“Prior to the recent High Court decision in the case of D4 ... there had been no cases where the notification requirement had prevented deprivation action from taking place.”


That is an interesting admission. For a short period between August 2018 and July 2021, the Government thought they had the power to notify by merely entering a note on the subject’s Home Office file, a route which the High Court and now the Court of Appeal have declared in the D4 case to be outside the statutory requirement that a person be given written notice.

The Minister’s answer shows that not only during this period but before it, when the Government did not claim to be able to notify simply by “putting the document in a drawer”, as Lord Justice Baker put it yesterday in the Court of Appeal, there were no cases in which the requirement to give notice prevented them removing citizenship. That is perhaps not surprising, since it is enough under the existing rules, which are very broad, for notice to be sent by post or email to the person’s last known address, or to a parent, or to the parent’s last known address.

What of the one exception, the case of D4? Her own lawyers told the High Court that her whereabouts in a Syrian camp were known to the Government at the time of deprivation—government agencies had been there to talk to her daughter—and that her family continued to live at her previous address in England. If that is right, the problem was not that the ordinary rules were inadequate but that the Home Office sought to use a procedure that turned out to be unlawful. The case for Clause 9, therefore, even in a case such as that of D4, has yet to be made. I urge the Minister to remedy that defect, if she can.

I question, secondly, the scope of application of Clause 9. Amendments 25 and 26 from the noble Baroness, Lady McIntosh, would remove some of the alternative grounds on which notice can be withheld. However, with great respect, they do not address the ground that is so broad as to make the others almost redundant: the power to withhold notice whenever it appears to the Secretary of State that this is in the public interest. With or without the noble Baroness’s amendments, Clause 9 permits notice to be withheld even when notification would be perfectly feasible and when no national security concerns are in play. Its effect would be to give the Home Secretary the simple option of telling people or not, as she pleases.

The Home Office has suggested, on social media, that the power would be used only in exceptional circumstances, or only if other means of service are not practicable, or in cases of a threat to national security. If that is the case, it should say so in the Bill. Tweets and videos do not bind current Home Secretaries, let alone future ones—neither, so far as the courts are concerned, do statements from the Dispatch Box. I say to the Minister: please put it in the law.

Thirdly, there is a remarkable absence of safeguards, even by comparison with the two countries I have found whose Parliaments have been prepared to give Ministers a power to withhold notice of citizenship removal: Australia and New Zealand. In Australia, the power to withhold notice applies only to deprivations on national security grounds, and only if the giving of notice would harm security, defence, international relations or law enforcement. There are no such limitations here—and there is accountability: the Minister must regularly table a report to Parliament on his use of the power and brief the Australian Intelligence and Security Committee in writing as soon as practicable after doing so. The Australian equivalent of the Independent Reviewer of Terrorism Legislation, the even more indigestibly titled Independent National Security Legislation Monitor, has a standing own-motion power to review citizenship deprivation laws, something that successive Home Secretaries have refused to permit here. The withholding of notice must be reviewed by the Minister personally every 90 days, and cannot be extended indefinitely, as Clause 9 proposes, keeping the subject in the dark and rendering nugatory his right of appeal. The previous Australian independent monitor, the former military lawyer, James Renwick SC, has proposed that notice should be given as soon as reasonably practicable and always within six months of the deprivation.

New Zealand has in place a stronger safeguard still. If the Minister wishes to dispense with notice, she must apply to the High Court and, if the High Court accepts her application, it will then carry out a full merits review of the decision to deprive. Prior judicial authorisation is hardly alien to our national security culture: we apply it to TPIMs, temporary exclusion orders and a whole range of intrusive surveillance powers. Why should it not apply to this most life-changing of executive measures—the cutting of the bond between citizen and nation?

My Amendment 28 would subject the citizenship removal power on “conducive” grounds to annual review, like the other powers used to combat terrorism. The current triennial review applies only to citizenship removal resulting in statelessness, as provided for by the Immigration Act 2014—removals which, one would hope, are unlikely ever to be more than a tiny proportion of the total.

Why? A recent Written Answer said there had been 14 citizenship deprivations on conducive grounds in 2016, rising to 104 in 2017 and falling back to 21 in 2018. No further breakdown, I was told, could be provided. Why the variation? Why the huge number in 2017, and why has there still been no publication of the figures for 2019, 2020 or 2021? A security cleared independent reviewer—why not the one we already have?—needs to be able to ask those questions, hold feet to the fire and report regularly to Parliament. How else are we to know what is going on in our name?

Nationality and Borders Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I shall concentrate on the subject that I know best because I reviewed it for the Home Office in 2016: the deprivation of citizenship, covered in that late addition to the Bill, Clause 9. The phrase has a Cold War feel to it: we think of Aleksandr Solzhenitsyn, deprived of his citizenship by the USSR. But it is really a version of the ancient practice of banishment—likened by Voltaire, himself exiled to England as a young man, to

“throwing into a neighbour’s field the stones that incommode us in our own.”

The tightly drawn powers to remove citizenship under the British Nationality Acts, including for disloyalty or disaffection towards Her Majesty, were not used in the 30 years prior to the war on terror, but thresholds were reduced in 2003 and 2006 to the point where today, Ministers need be satisfied not that someone is a terrorist or a traitor but only that their removal would be

“conducive to the public good”.

In 2014, a further power was taken to render naturalised British citizens stateless, if the Home Secretary was additionally satisfied both that their conduct was seriously prejudicial to the vital interests of the United Kingdom and—a concession made in response to concerns expressed in your Lordships’ House—that they were eligible for citizenship elsewhere.

Removal of citizenship is now relatively common. The factsheet for the Bill on this matter tells us that the power to deprive people of their citizenship on “conducive to the public good” grounds was exercised around 170 times between 2010 and 2018. Clause 9 does not alter the criteria for removal of citizenship but effectively makes it optional, rather than mandatory, to notify the subject of their change in status. A more limited attempt to achieve this, which deemed notice to have been given by the entry of a note on the subject’s Home Office file, was made in a statutory instrument of 2018 that passed unremarked through Parliament but was held last July in the case of D4 to be ultra vires of the Act. At least this time around we have a power of amendment.

With Committee stage in mind, I ask the Minister six questions which I would be happy to have answered in writing. First, why is such a power needed at all? The existing rules allow subjects or their parents to be notified by post or email at their last known address, at home or abroad. Have there been cases—and if so, how many—in which even this basic information is not known?

Secondly, if it is necessary to remove citizenship without notice, why is the prior permission of a judge not required—the safeguard that applies to more transient measures such as TPIMs and, formerly, control orders?

Thirdly, why are the circumstances in which notice may be dispensed with so extraordinarily broad, even by comparison with the rules that were struck down in July? Clause 9 allows notice to be withheld even when up-to-date contact details are available, when it is practicable to give notice, and when no considerations arise of national security or foreign relations. The Secretary of State does not even have to try to give notice: she must only believe that dispensing with notice is “in the public interest”. Hints of future ministerial restraint of the sort that the Home Office has been energetically tweeting during this debate have no basis in this clause and are no substitute for properly defined laws.

Fourthly, where is the provision to require notification after the event? What reason could there possibly be for not informing somebody within days, weeks or months of such a potentially cataclysmic event as the removal of their citizenship—especially when it is their only citizenship?

Fifthly, when does the time to appeal begin to run? You cannot appeal a decision you have not been told of, but once you do find out, is your appeal said to be time-barred?

Sixthly, why are courts restrained, retrospectively, from treating a deprivation order as invalid for failure to comply with such notification requirements as still remain?

There is already apprehension, especially and understandably among people of mixed heritage, about this country’s unusually far-reaching powers to remove citizenship. The proposal to allow the use of those largely unmonitored powers to be kept secret, even from a subject who could perfectly easily be told, has predictably compounded those fears.

Clause 9 has been insufficiently thought through; at least, I hope that is the explanation. We can, and must, do much better.

Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2021

Lord Anderson of Ipswich Excerpts

Tuesday 30th November 2021 Grand Committee

[Baroness Jones of Moulsecoomb (GP)]

My Lords, here we are again: the five-yearly renewal of the TPIM scheme, which has been in place since 2006. I oppose these restrictive measures, which are an extrajudicial way of interfering with the rights and liberties of people who cannot be convicted of any crime.

I am curious to know whether the Home Office has explained to the Prime Minister that it is doing this. I ask because, while MP for Henley in 2005, Boris Johnson wrote of the Act in his Telegraph article of 10 March:

“It is a cynical attempt to pander to the many who”—


forgive my language here—

“think the world would be a better place if dangerous folk with dusky skins were just slammed away, and never mind a judicial proceeding; and, given the strength of this belief among good Tory folk, it is heroic of the Tories to oppose the Bill. We do so because the removal of this ancient freedom is not only unnecessary, but it is also a victory for terror.”

I hope that the Minister will at least pass this back to the Home Office to make sure that the Prime Minister is happy with this renewal. It must be so difficult for Ministers to do anything without Boris Johnson having opposed it somewhere at some point in the past; there is always an article somewhere that one can track down. Our Prime Minister is so very often so wrong, but on this rare occasion he was so right: it is heroic to oppose these measures, and the Greens in your Lordships’ House will register their opposition every five years when this continuation order comes round. I actually hope this will be the last time.

[Lord Anderson of Ipswich (CB)]

As Independent Reviewer of Terrorism Legislation in 2016, I had no hesitation in recommending the second renewal of TPIMs in that year. I share the Government’s view that TPIMs, although they involve a particularly severe deprivation of liberty and intrusion into private life, may be an appropriate tool for dealing with a small number of individuals who are believed to endanger the public but whom it is feasible neither to prosecute nor to deport.

However, close scrutiny of TPIMs is important, all the more so since the maximum duration of a TPIM was significantly increased by the Counter-Terrorism and Sentencing Act 2021. I am here to raise with the Minister one concerning development that has arisen since my time as independent reviewer: the refusal of legal aid to TPIM suspects who cannot afford to progress the automatic review of each TPIM that is provided for in Section 9 of the TPIM Act 2011.

Jonathan Hall QC, the current independent reviewer, reported to the Government in November 2020 that, in the previous year, three subjects of so-called light-touch TPIMs, known as JD, HB and HC, requested the court to discontinue the reviews in their cases and that

“the absence of funding was a factor”.

In each case, they had been refused legal aid. The independent reviewer’s report, published in March 2021, recommended that, subject of course to means, legal funding should swiftly be made available to TPIM subjects for the purpose of participating in Section 9 review hearings. Mr Hall informed me this afternoon that, more than eight months after publication, there has still been no response from the Home Office to this recommendation. Can the Minister say when a response will be provided?

In the hope that it may influence the substance of any response, which, I might add, I do not expect today, I shall make four points. First, on 12 October 2020, the Government wrote to the UN High Commissioner for Human Rights, defending the TPIM regime on the basis that, among other things,

“all TPIM subjects have an automatic right to have a court review the imposition of their TPIM and each of the measures imposed. This hearing also provides an opportunity for the subject to hear the national security case against them.”

I assume that in the last sentence the reference is to the gist of the national security case, which is now provided to the TPIM subject. It is plain from what I have said, and from what the independent reviewer has said, that there is, in reality, no automatic right to review and that there will be no such right for as long as legal aid is refused to TPIM subjects on grounds other than means.

Secondly, it would be unacceptable if funding were to be denied because of a misapprehension that a Section 9 review is a form of challenge that requires a TPIM subject to establish reasonable prospects of success. As the independent reviewer explains in his report, Section 9 review was designed not as an add-on but as an integral part of every TPIM. Furthermore, it is not feasible to apply a merits criterion to the grant of legal aid, because the requirements of national security mean that TPIM subjects do not know, and will never be told, the full reasons for the Secretary of State’s decision to impose a TPIM.

Thirdly, if the aim is to save money or a desire to avoid giving money to lawyers for suspected terrorists, that aim is not only misguided but likely to be counterproductive. The legal aid issue affects very few cases—just three in 2019, as I indicated—but is bound eventually to lead to prolonged litigation about the fairness of proceedings.

Police, Crime, Sentencing and Courts Bill

Lord Anderson of Ipswich Excerpts

Lords Hansard - part two & Committee stage
Wednesday 27th October 2021 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I put my name to Amendment 106A, which the noble Lord, Lord Rosser, has just introduced thoroughly and persuasively. Although I have sat as a part-time judge in crime for many years now, I freely admit that I do not have the depth of background in this field of other noble Lords, not least the noble Lord, Lord Macdonald of River Glaven, who I see in his place. Nevertheless, I am inclined to support this amendment for three reasons, on which I hope the Minister might comment.

First, as I understand it, the amendment simply seeks to extend to third-party material the safeguards that have already been agreed by the Government in relation to data in the possession of the victim. Do the Government share that understanding? If they do not accept that the same protections are appropriate in those two situations, could the Minister explain why?

Secondly, the Victims’ Commissioner asserts in her detailed briefing that it has become “routine” for rape complainants to be asked to hand over excessive personal information, including third-party material. She cites, among other things, a CPS internal report reported in the Guardian in March 2020 to the effect that 65% of rape cases referred by police to the CPS for early investigation advice involved disproportionate and unnecessary requests for information. She quotes officers from Northumbria Police as saying that third-party material is a “real bone of contention” and:

“The CPS routinely ask us to obtain peoples 3rd party, medical, counselling and phone records regardless of whether a legitimate line of enquiry exists or not.”


Is that a picture the Government consider to be accurate?

Thirdly, it is said that this amendment has the full support of the National Police Chiefs’ Council lead for disclosure and of the Information Commissioner. That prompts me to wonder about the position of the Crown Prosecution Service, which seems equally relevant. Does the CPS take a different view from the policing lead and the Information Commissioner and, if so, how does it defend that view? I am sure that other noble Lords, like me, appreciate the difficulty of the task of the CPS and would give it a fair hearing. In summary, the Government seem to have a case to answer on Amendment 106A and I look forward to hearing from the Minister what that answer might be.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak briefly on my own behalf and that of my noble friend Lady Jones of Moulsecoomb, who is unable to be with us this evening. My noble friend attached her name to Amendments 79, 89 and 107. The noble Lord, Lord Rosser, has given us a very clear and complete explanation, so I just want to reflect on the average age of noble Lords, as we sometimes do. We really have to work quite hard to understand the way in which people’s lives are entirely contained in their phones, particularly younger people, and what an invasion it is to have that taken away.

The noble Lord, Lord Rosser, referred in particular to Amendment 107 and the situation of immigration officers. I have heard a number of accounts of what has been happening to people arriving, particularly from Calais and surrounding areas, on boats in the most difficult and fearful situations. For people who wish to contact family and friends to say they are safe or wish to make some kind of plan for the future, to lose their phone in those situations or have it taken away is very difficult.

We have not had an introduction to Amendment 103, tabled by the noble Lord, Lord Beith, to which I have attached my name. We have had expressions of concern from the Delegated Powers and Regulatory Reform Committee, and we really would like to hear from the Minister the justification for that. By oversight, I failed to attach my name to Amendment 104. As a former newspaper editor, I think we really need to get a very clear explanation of how confidential journalistic material could be covered under these circumstances. We have grave concerns about freedom and the rule of law in our society, and this is a particularly disturbing clause.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[The Deputy Speaker (Lord Alderdice) (LD)]

The noble Baroness, Lady Massey of Darwen, has withdrawn so I call the next speaker, the noble Lord, Lord Anderson of Ipswich.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I shall speak to Motions A, C and E on the basis that each of them relates in some way to an earlier amendment in my name.

Motion A concerns Amendment 1, which I originally moved in Committee. Like the noble Baroness, Lady Hamwee, I would have preferred the requirement that belief be reasonable to have been included in the Bill. However, I welcome the fact that it will at least now be plainly stated in the code of practice at paragraphs 3.10 and 6.4 in terms that improve significantly on the earlier suggested amendment—memorably described by my noble and learned friend Lord Thomas of Cwmgiedd as the “worst of both worlds”. The new paragraphs will say plainly that

“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”

Something similar has been said from the Dispatch Box, but authorising officers will perhaps have the code of practice more readily to hand than the Official Report. I welcome the new wording and, like the noble Baroness, Lady Hamwee—who, with the noble Lord, Lord Paddick, took over this amendment on Report—I do not oppose Motion A.

I turn to Motion C on the availability of compensation for the victims of authorised crimes. Lords Amendment 3, which your Lordships passed on Report by a majority of 91, provided that there was no bar to the criminal injuries compensation schemes in Great Britain and Northern Ireland being available to victims of authorised crimes. Without such a clause, it was at least possible that Section 27 of RIPA, which renders authorised activity lawful for all purposes, would have prevented such recourse. The Commons rejected that amendment, with the stated basis being that it was

“inappropriate to create an exception to the effect of criminal conduct authorisations.”

I am pleased that the Government have thought again. Their new clause is, so far as I can see, simply a competently drafted version of mine. It will mean that, should an act of violence ever be authorised, the innocent victim will not be disqualified from compensation by the fact that the perpetrator was a CHIS. It improves the Bill in a specific but potentially significant way.

Finally, Motion E originates in an amendment from my noble and learned friend Lord Thomas of Cwmgiedd. That amendment would have improved my own Amendment 5 on real-time notification, which now constitutes Clause 3 of the Bill, by underlining what I believe in any event would be the practical reality: that the disapproval of a judicial commissioner will normally result in the cessation of all further activities undertaken pursuant to an authorisation. My noble and learned friend’s amendment was not agreed to in the other place, but he has negotiated in its place an acceptable alternative in the form of an amendment to the code of practice. It begins:

“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken”—


not whether any action should be taken, but what action should be taken, which implies that some action will be taken.

IPCO must then be informed of that action as soon as reasonably practicable, and the Investigatory Powers Commissioner retains full discretion to take what further steps may be thought appropriate—including, as the Minister expressly confirmed on Report, passing the file on to the Director of Public Prosecutions or his equivalent in Scotland and Northern Ireland. As the Minister clarified on 11 January, at cols. 497-98 of the Official Report of your Lordships’ House, if the authorisation is determined not to have met the statutory requirements of necessity and proportionality, nothing in this Bill or in RIPA itself prevents the prosecution either of those responsible for authorising the crime or of the person who committed it.

The consequences for anyone who has unlawfully issued a criminal conduct authorisation are therefore real and give the lie to any suggestion that the real-time notification procedure is without teeth. Successive Investigatory Powers Commissioners have been among our highest-ranking and most experienced judges, well capable of deploying both the bark and the bite. This Bill, read with its code of practice, equips them for both.

In short, we have a solution on each of these three amendments which is largely satisfactory. I thank the Bill team and the Minister for their constructive and courteous engagement with operational partners over many months. The Bill is not perfect—given the intractable subject matter, that is not surprising—but it has been very significantly improved by your Lordships. We can fairly say that we have done our job, and I look forward to seeing the Bill on the statute book.

[Lord Paddick (LD) [V]]

My Lords, I will speak to the two Motions on which the House will divide. Motion B asks that this House do not insist on its Amendment 2, which placed in the Bill a list of offences that a criminal conduct authorisation could not authorise. This amendment was suggested by the Joint Committee on Human Rights and was championed by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs. The Commons disagree because doing this

“would place sources, and the wider public, at risk.”

As the Minister explained, the argument goes that sources could be tested against such a list to discover whether they were a CHIS and, further, that pursuant of testing to see if a person was a source, they would ask other people who were not CHIS to commit crimes listed in Lords Amendment 2.

Those arguments were demolished by the noble Lord, Lord Anderson of Ipswich, in Committee—and the Government have, to date, failed to address them. Australia, Canada and the United States of America have similar lists and they do not present the sort of difficulty in those countries that the Government claim would occur here. In a blatant act of whataboutery, the Minister responded that these countries were different because we have the Human Rights Act and they do not. On Report, the noble and learned Lord, Lord Hope of Craighead, comprehensively demolished the argument that the Human Rights Act was sufficient, but that is not why the Commons disagrees with Amendment 2.

What has the Human Rights Act got to do with the Commons disagreement? A list is published in each of the countries—Australia, Canada and the USA—of offences that CHIS cannot be authorised to commit, and the reasons the Commons has given for rejecting this amendment do not arise in those countries. Their CHIS are not tested against the list and there is no evidence that others are tested against it either. We are not talking about a hypothetical situation of “What if there was a list of prohibited offences?” but about the fact that this has been tried in practice for many years in similar jurisdictions and the Commons’ stated concerns do not exist.

The noble Lord, Lord Anderson of Ipswich, then went on to explain why he believed publishing a list is not a problem in those jurisdictions and why it would not be a problem here. If a gang tested a member by asking them to rape and the gang member refused, it could be that the gang member has scruples that he is not prepared to set aside. I could add to the noble Lord’s example and say that the gang member may be incapable of performing an act of rape in front of an audience or that his sexuality gets in the way of his being able to rape the man or woman he is being asked to rape. There are a host of more likely explanations as to why the gang member might not commit a serious crime other than that he might be a covert human intelligence source refusing to do so simply because he is a CHIS.

To paraphrase the noble Lord, Lord Anderson, a former Independent Reviewer of Terrorism Legislation, also with direct experience of Northern Ireland, he said he found it hard to understand why a shortlist bearing no relation to the types of crime that would routinely be authorised should increase the risk to a CHIS or other members of the public or make it more likely that he would be successfully outed as a CHIS by the criminal group in which he is embedded. As a police officer of over 30 years’ experience, including direct experience of managing police informants, I do not understand either.

Domestic Abuse Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 1st February 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I will speak to Amendments 71, 72 and 73. I thank the noble Lord, Lord Anderson, for putting his name to Amendment 71; I thank both him and the noble and learned Lord, Lord Mackay of Clashfern, for putting their names to Amendments 72 and 73.

These amendments as a group look at time limits and prohibitive requirements. Amendment 71 would ensure a maximum timeframe—five working days—within which a contested DAPO made without notice was brought back to court. There may be cases where a particular programme has to be assessed but the police may not know whether it is readily available, and it may take a certain amount of time to get an assessment for a programme. The purpose of this amendment is to put a time limit on that rather than it dragging on for a longer period.

Amendments 72 and 73 address the same issue but from a different perspective: that is, if there is a positive requirement as part of a DAPO, either to go on a course or to go to drug rehabilitation, the person who is to be submitted to the DAPO should agree to go on that course. While I understand that putting negative requirements on alleged perpetrators is something one can do without their permission, positive requirements will have a far greater likelihood of success if, first, they have been assessed and, secondly, the person agrees to go on whatever course it may be. There could be a number of different elements to this. I have mentioned drug and alcohol and domestic abuse courses, but there are also mental health issues with a number of the alleged perpetrators. All this needs to be taken into account, and that is the purpose of this group of amendments. I beg to move.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I welcome the introduction of DAPOs but believe that, in certain respects, clearer rules are required to ensure that they are used in a practical and proportionate manner. It is in this constructive—I hope—spirit that I have put my name to the amendments in this group.

The potential scope of a DAPO is extraordinarily wide. Under Clause 33, it may include any prohibition or restriction considered necessary to protect a person from the risk of domestic abuse, expressly not limited to what are referred to as the “examples” of non-contact, residence and tagging provisions in subsections (4) to (6). I remind the Committee that even the types of measure that can be imposed on suspected terrorists under the Terrorism Prevention and Investigation Measures Act 2011—TPIMs—are exhaustively spelled out in the Schedule to that Act. They include some measures that one assumes would never be imposed in the context of domestic abuse, but the contrast in approach is striking none the less. With such a powerful and open-ended instrument as the DAPO, it is important that we get the safeguards right.

Of course, it will sometimes be necessary to impose the DAPO without notice. Amendment 71 would ensure that those cases did not fall between the cracks and were brought back to court as soon as practical, and in any event within five days. That matters for the reasons given just now by the noble Lord, Lord Ponsonby, and more broadly because DAPOs are highly personalised and highly intrusive. Without the presence of the person against whom the order is made, no one can be sure that the most effective and appropriate DAPO will have been arrived at first time around. Indeed, Clauses 31 and 34 acknowledge the principle that, if DAPOs are to be effective, they must be suitable and enforceable having regard to such matters as the work and educational commitments of their subjects, any other court orders or injunctions which may apply to them, and the interests of other persons including children.

As to Amendments 72 and 73, I comment only that in my days as a Crown Court recorder, it was axiomatic that one did not impose a positive requirement, such as a drug or alcohol rehabilitation order, or a mental health programme, in the absence of the intended subject of that requirement. These interventions are costly and, if they are to be effective, they require not just the presence but the consent and indeed the commitment of the subject. I have strayed there into Amendment 81, which we will come to shortly.

Self-evident as these matters may be to some, there is an advantage to putting them clearly in statute so that magistrates and their clerks are in no doubt as to the position. The amendments in this group are particularly compelling to me because they are supported by the Magistrates Association and by the noble Lord, Lord Ponsonby, in his capacity as a magistrate with current front-line experience. I hope that the Minister will look favourably on them.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I support all the amendments in this group; I put my name to the ones that I thought were more appropriate for me but I agree with them all. As the noble Lord, Lord Anderson of Ipswich, has said, it is of course true that these amendments are supported by the Magistrates Association. My reason for supporting them, apart from the fact that I am convinced that they are right, is that they come from the Magistrates Association, of which I had the honour to be president for almost 10 years. However, that experience is rather elderly and I am therefore very happy that these amendments are supported by an active, front-line, authoritative magistrate today.

--- Later in debate ---

[Lord Mackay of Clashfern (Con) [V]]

I support these amendments, which are supported by the Magistrates’ Association, because it is very clear that they will have taken the view of a number of experienced magistrates in what they have formulated. It is in the nature of this order that it is an interim order, because it is made on the basis that it will be reconsidered after the representations, if any, that the respondent makes. It is essential that in due course an opportunity is given for that as part of the order. In due course, as we suggested in a previous group of amendments, it will be modified to five days and that is going to happen. Therefore, it is an interim order in its nature, even if it is not called that in these proposals.

It is important to note that this application continuation will take place in a hearing which will normally be extremely short. It will not be in the same set of court cases involving any kind of substantial and long hearing and is not likely to be very much affected by the present situation with regard to criminal cases.

The noble Lord, Lord Blunkett, mentioned being taken for a ride. It is also possible, at least with some of these orders, that a person may be very willing to take it on. I had experience, a long time ago now, of a case in which a young mother in Glasgow undertook to attend a very good programme for dealing with addiction. I am certain that she was determined to go through with it, because it was much better than having a sentence which might involve separation from her child. However, I learned some time after I had made the arrangements with her and got her fervent consent, that she had left the programme. That can happen, not as a deliberate act, but as a consequence of the power of addiction to alter a person’s will at a particular time.

I support these amendments and I am glad that they are supported by an active and leading magistrate who has current experience of these matters.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I have put my name to Amendments 81, 83 and 84. I addressed Amendment 81 when speaking to Amendments 72 and 73 in the last group. The Minister suggested in response that there were certain circumstances in which it might be appropriate to impose a drugs or alcohol rehabilitation order, or a mental health disposal, without the commitment, consent or even knowledge of the intended subject—at least, I think that is what he said. I should be interested to hear him elaborate on the sort of circumstances he has in mind.

As to the proposal of a statutory time limit in Amendments 83 and 84, I endorse what the noble Lord, Lord Ponsonby, has said from experience about the practice in comparable contexts, and what the Magistrates’ Association has said about the desirability of allowing the court to put in place review hearings if appropriate. I will add one or two further points.

Clause 36(5) recognises that an electronic monitoring requirement should be authorised for no more than 12 months, yet there is no time limit on the other provisions of a DAPO despite their unlimited range. I expect the Minister will refer to the right of a person to apply for the variation or discharge of a DAPO under Clause 42, but that is a haphazard safeguard and one that the Bill itself acknowledges is not sufficient where tagging is concerned. Something more is required, and I suggest that the amendments provide it.

Finally, there also seems to be force in the other amendments in this group. The case for Amendment 86 in particular seems unanswerable. I know from our time together at the Bar that the Minister is more than capable of rising to any occasion, but I hope that in relation to this group he will find at least some of the amendments to be uncontentious.