Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Blencathra Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

[Baroness Meacher (CB) [V]]

My Lords, I support the noble Lord, Lord Rosser. As a member of the Delegated Powers Committee I strongly support all the points made in our report and, along with other noble Lords, I very much look forward to hearing from our chairman, the noble Lord, Lord Blencathra.

I am aware that part 6A of the Immigration Rules sets out the points-based system which applies to migrants from the rest of the world. EEA citizens will move from a position of free movement to having to find their way through a thicket of literally hundreds of pages of rules and guidance currently applying to the rest of the world. Will the points-based system be adjusted for EEA citizens? If so, in what ways will the EEA rules diverge from the current system set up in part 6A? The framework should surely be in the Bill.

Clause 4 has potentially life-changing consequences for a large number of people—an issue raised by the Delegated Powers Committee report. Ministers are given the power to modify primary legislation or to modify retained EU legislation, which has a similar status to primary legislation, as noble Lords know. These provisions, together with the power for Ministers to introduce regulations on any subject in connection with Part I of the Bill, provide incredibly wide powers for Ministers.

I want to take just one example of an issue which needs to be dealt with in the Bill and I am sure that the noble Lord, Lord Blencathra, will raise a number of others. Tier 3 of the PBS which applies to unskilled workers has never been opened. We know that the UK is likely to face severe shortages of so-called unskilled workers in some sectors, most particularly health and social care but a number of others as well. Can the Minister press her colleagues to spell out in the Bill the key changes envisaged to the PBS, at least for the short to medium term, to keep the UK economy functioning adequately? Then, of course, Ministers could have the powers to introduce regulations to adjust the system over time. I fully recognise that there would be a need for that.

We all understand the need for Ministers to be able to introduce consequential amendments through secondary legislation, such as removing the references to free movement scattered across the statute book. Typically, however, most consequential amendments are put in the Bill and then regulations are used to tidy up the bits and pieces that were somehow missed during its passage.

We are invited by counsel to the Delegated Powers Committee to consider whether Ministers’ powers to make consequential amendments through regulations should be restricted by a test of necessity. Can the Minister convince the Committee that the wide powers to make consequential amendments to this Bill are in fact necessary? It would be very interesting to hear the Minister’s defence, if you like, of the breadth of those consequential amendments left to regulations. Why cannot most such amendments be included in the Bill before Report? I am sure colleagues would support a short delay before Report to allow that to be done.

Even more serious than the power to make unlimited consequential amendments is the power to make regulations in connection with Part I of the Bill, as other noble Lords have mentioned. I strongly support the amendment from the Baroness, Lady Hamwee, to deal with that issue. This would of course become redundant if Clause 4 were replaced with a string of substantive clauses.

Can the Minister provide an adequate justification for the broad discretion given to Ministers to levy fees or charges on anyone seeking leave to enter or remain in the UK who until the end of the transition period would have had free movement rights under EU law? If not, then these matters must surely be in the Bill with provision for Ministers to adjust the fees or charges over time. As others have said, transitional protections for EEA nationals who are resident in the UK before the end of the transition period are surely known. Why are they not in the Bill? Perhaps the Minister could explain that.

Finally, I had understood that Brexit was all about restoring the sovereignty of the UK Parliament. This is just one of a series of Bills transferring powers from the EU not to the UK Parliament but to Ministers. We know that even where the affirmative procedure will be used, Parliament has no real power to influence the shape of those regulations. I hope the Minister will do all she can to achieve a more democratic outcome to this Bill, even at this late stage, by replacing Clause 4 with a series of clauses spelling out the Government’s policies, or at least the framework of those policies, to adjust the points-based system to meet the needs of the UK economy in the post-Brexit world.

[Lord Blencathra (Con)]

It is a delight to follow the noble Baroness, Lady Meacher, one of the most distinguished members of the Delegated Powers Committee. I am particularly grateful that she has not stolen all the sexiest bits of our report and has left me some original bits to quote, although a number of noble Baronesses and the noble Lord, Lord Green of Deddington, also quoted extensively from it. Perhaps I should sit down and say, “I agree with everyone who has gone before me”, but since I have been here in the Palace for about eight hours, working upstairs, I feel I should earn my crust.

I am speaking on Clause 4 stand part only to draw attention to some of the key points of the Delegated Powers Committee report on the Bill. I am privileged to chair that committee but, in view of some of the highly critical reports we have made recently, my noble friends may be pleased to know that I will be standing down as chair. My term is up by Christmastime, so there may be a more emollient chairman in future.

Last week I spoke on the Delegated Powers Committee report on the medicines Bill and quoted extensively from it. Our report then was hard hitting and I make no apology that I was robust—I suppose I was not robust but scathing—in my condemnation of the delegated powers, which in my opinion were an affront to democracy. I said then that the Bill was “not unique”, just another in a long line of skeleton Bills with all the blank spaces to be filled in by delegated legislation—much of it negative, of course.

Today I will not be as vicious in my remarks, but I report in sorrow that this Bill also has some fundamentally excessive delegated powers. Clause 4(1) confers on the Secretary of State powers to make regulations containing

“such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision”

of Part 1 of the Bill, including Henry VIII powers to amend primary legislation. The combination of the permissive concept of whatever the Minister thinks appropriate, as opposed to necessary, the words “in connection with” the Bill, the subject matter of Part 1, ending free movement, and the number of persons who will be affected make all this a very significant delegation of power from Parliament to the Executive.

With regard to those provisions, my Committee said:

“As we said in our earlier Report, we are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations (assuming no amendment was made to primary legislation).”


As for the scrutiny of regulations, we are concerned that the first set of regulations would be made by the “made affirmative” procedure, avoiding legislative scrutiny before they come into effect, but subsequent ones would be draft affirmative—but only if they amended primary legislation. Everything else would be negative, even if the regulations amend or repeal what is known as retained direct principal EU legislation. By contrast, the approach in the European Union (Withdrawal Agreement) Act 2020 is that the affirmative procedure is mandatory where regulations modify retained direct principal EU law.

We were also concerned that delegated legislation could alter fees and charges enacted in primary legislation. As mentioned by noble Baronesses earlier, it is usual for legislation to have a schedule at the end listing consequential amendments and a provision that regulations can tidy up any missing bits or loose ends with further consequentials, but in Clause 4 the bulk of the consequentials will be done by regulations afterwards.

So we concluded, overall, the following:

“We remain of the view, expressed in our earlier Report, that clause 4(1) contains an inappropriate delegation of power and that the Bill should be amended so that: the words ‘or in connection with’ are removed from clause 4(1); consequential amendments are included in the Bill itself, but with a power to add others (subject to a test of necessity) by regulations (subject to the affirmative procedure if primary legislation or retained direct principal EU legislation is amended or repealed); transitional protections for EEA nationals who are resident in the UK before the end of the transition period are included on the face of the Bill; clause 4(5) (about fees and charges) is removed, unless the Government can provide full justification for its inclusion and explain how they intend to use the power; and clause 4(6), which provides for the first set of regulations under clause 4(1) to be subject to the made affirmative procedure, is removed from the Bill.”


Those were the principal conclusions that we reached.

Port Examination Codes of Practice and National Security Determinations Guidance Regulations 2020

Lord Blencathra Excerpts

Friday 10th July 2020 Lords Chamber

[Lord Blencathra (Con) [V]]

My Lords, like the noble Lord, Lord Blunkett, I congratulate the Minister on demystifying highly complex regulations, and I congratulate the noble Lord, Lord Mann, on his sheer guts and chutzpah in challenging every liberal nostrum.

I am content with the proposed extension to five years on national security grounds, provided the material is properly destroyed if there are no grounds for suspecting people of terrorist activity. I am happy that people who are convicted of crimes should have their DNA and biometric material kept for evermore, but I do not see the need, or the moral legitimacy, of keeping for three years the biometric material of innocent people or of those who have been charged with an offence not related to terrorism—an ordinary crime. Three years is a great improvement, brought in by the coalition Government in 2012, on the completely open-ended system there was before, when the police, for no good reason and simply because they could, kept DNA and biometric data on innocent people. It is for Parliament to make that decision, not the police acting unilaterally.

When I was Police Minister way back in the 1990s, I vigorously defended the police, but it is with deep regret that I say that I do not trust them any more on a range of things, and that really upsets me. So I am not confident that the police are fully complying with the legal requirement to destroy all biometric data after three years. I would be grateful if the Minister will assure me—if not today, perhaps on some other occasion—that that is happening, that checks are being carried out, and that DNA and biometric data are not being retained by the police for longer than three years.

Covid-19: UK Border Health Measures

Lord Blencathra Excerpts

Thursday 4th June 2020 Lords Chamber

[Baroness Williams of Trafford]

My Lords, that is why the UK is engaging with different countries and airlines on all sorts of considerations while it considers what the next stage of this process will be. The Government are very keen to review this as soon as we possibly can within the next three weeks, and then the next stages of decision-making will be stated.

[Lord Blencathra (Con)]

My Lords, I have no regard for the opinions of Ryanair, which has refunded only 5% of its passengers, nor of easyJet, where 63% are waiting for a refund. However, will the Minister please reassure me about enforcement? If the police will not enforce the law yesterday, with massed demonstrators packed closely into Whitehall, how will this be enforced with individuals scattered throughout the country?

[Baroness Williams of Trafford]

My Lords, the reason why the locator form is so important is that people will be contacted and enforcement carried out to ensure that people follow the rules. However, as has been the case through lockdown, I think people see the importance of looking out for each other, because each time we break the rules we run the risk of infecting our loved ones and people in our community.

Windrush Compensation Scheme

Lord Blencathra Excerpts

Wednesday 6th May 2020 Lords Chamber

[Lord Blencathra (Con)]

My Lords, this coronavirus pandemic has shown us who really matters in our country. Of course, we all immediately think of the NHS staff, but we would all be starving if we did not have tens of thousands of people stacking shelves and lorry drivers delivering vital supplies 24 hours per day. I pay tribute to them, as well as the dustbin men, farm labourers, cleaners, cashiers, sewing machinists, vets’ assistants, call centre staff and hosts of other low-paid workers who have been keeping us going in lockdown and getting our deliveries to us. These and other low-paid manual workers are the heroes of this pandemic. Many of them are doing exactly the same work that the Windrush generation came here to do.

The people who will not be missed are the rather vacuous celebrities and rapacious lawyers—but no doubt the lawyers will crawl out again to mount massive claims against the NHS and everyone else they can think of whom they perceive to have deep pockets. They have contributed nothing to help us get through this crisis but will be out in droves, ambulance chasing, when it is over. That is why I am pleased that they will not be part of the Windrush claims process.

Many of us could not be in the Chamber at Second Reading, but I was concerned at some noble Lords’ comments that lawyers should be permitted to submit claims or even get legal aid to do so. We all know that lawyers who work on a no-win no-fee basis will rip off the client, who gets left with a tiny award at the end of it. If they were to get legal aid for this, they would rip off the taxpayer.

Some noble Lords, including the right reverend Prelate the Bishop of London, said that the form was too long and complicated, so I downloaded it to have a look. It is long but relatively simple, and claimants need to complete only the sections that relate to their individual circumstances. I think my noble friend the Minister has designed the compensation scheme and the forms to be as clear and simple as possible. For me, the telling point is that they were tested by the users, who found them satisfactory.

For those who want or need support to make a claim, the Home Office has funded Citizens Advice to provide free independent advice and support, and there will of course be the £500,000 fund for grass-roots organisations to promote the Windrush scheme and provide advice. In view of the scheme’s simplicity and the help available, there is no need for lawyers to get their noses in this trough on either moral or practical grounds, and I urge my noble friend the Minister not to budge on this.

Domestic Abuse

Lord Blencathra Excerpts

Wednesday 29th April 2020 Lords Chamber

[The Senior Deputy Speaker]

Baroness Armstrong of Hill Top? No? We will move on to the noble Lord, Lord Blencathra.

[Lord Blencathra (Con)]

My Lords, I thank my noble friend for all the excellent work she has been doing to tackle this long-standing and difficult problem, which has been greatly exacerbated by the current quarantine situation. Just how prepared were the Government and police in identifying and dealing with domestic abuse and violence during this pandemic, and what measures did they put in place in preparation for it?

[Baroness Williams of Trafford]

It was at the forefront of our minds that, as we entered lockdown, some people would be affected not necessarily by Covid-19 but by violence within the home. It is very gratifying to hear that noble Lords are so concerned about it. One of the first things I did was to get in touch with the domestic abuse commissioner, Nicole Jacobs; everything that she requested from the sector has now been put in place, including the #YouAreNotAlone campaign and other funding packages. There is also IT support, which is incredibly important; if you cannot get out of the house, you need to get that support somehow.

Equality Act 2010 (Amendment) (Disabled Access) Bill [HL]

Lord Blencathra Excerpts

2nd reading (Hansard): House of Lords
Friday 24th November 2017 Lords Chamber

Moved by

[Lord Blencathra]

That the Bill be now read a second time.

[Lord Blencathra (Con)]

My Lords, I have pleasure in moving the Second Reading of this innocuous little Bill to amend the Equality Act 2010 to grant 800,000 wheelchair users access to 70,000 shops and public buildings to which we are denied access at the moment. The Bill makes a tiny addition to the 2010 Act, would cost business very little to implement but would make a huge difference to wheelchair users. Let me assure your Lordships that my Bill does not touch in any way the protected characteristics in the Equality Act 2010 of age, gender, marriage and civil partnership, pregnancy and maternity, race, religion or belief, or sex and sexual orientation. It is concerned only with one aspect of disability: the requirement for public buildings to make “reasonable adjustments” so that wheelchair users can access them.

My Bill is identical to one which received a Second Reading in November 2014 but was rejected by the Government. At that time, the Government could say that I and noble Lords who supported my Bill were on our own and that we had no evidence to back up our case. Ironically, within one month of rejecting my Bill, the then Minister for Disabled People published a joint Department for Work and Pensions and DisabledGo report. The press release stated:

“DisabledGo study shocks the Government with evidence of inaccessible British high streets … The Minister of State for Disabled People is urging shops and restaurants to improve their accessibility”.


What a pity the Government did not take that view a month earlier when they dismissed my Bill.

Since then we have had the authoritative Lords Select Committee report, Equality Act 2010: the Impact on Disabled People. The committee was chaired by the noble Baroness—indeed, I may say “my noble friend”—Lady Deech, whom I am delighted to see is speaking today, along with other noble Lords who served on the committee. The committee found that there were severe difficulties with the “reasonable adjustments” provision of the Act, in that no one was enforcing it and disabled people had to take cases to court themselves in order to get access improvements.

The noble Baroness, Lady Campbell of Surbiton, cannot be with us today, but she wrote and asked me to say:

“It is easy to tilt a pram or pushchair up a step but impossible in an electric chair. My chair weighs 90 kilograms alone and takes 3-4 strong people to lift with me aboard!”.


So this time it is not just old Blencathra with a bee in his bonnet; we have the evidence of the Department for Work and Pensions survey, the overwhelming weight of evidence given to the Lords Select Committee and the committee’s own conclusions.

What are the facts and figures about the problem? The NHS estimates that there are 800,000 regular wheelchair users. By “regular”, it means people who are permanently in a wheelchair and, at the other end of the spectrum, those such as me who can stagger around a little bit. That figure is supported by other organisations.

The number of public buildings in the UK comprising shops, fast food outlets, restaurants and pubs is about 355,000. In addition, there are post offices, banks, churches and all the other buildings to which the public have access. The Department for Work and Pensions and DisabledGo study visited and assessed a massive sample of 30,000 shops and restaurants. Its findings were that 20% did not have wheelchair access—and, if wheelchair users did get in, 30% of the places had no disabled changing rooms or toilets. If you extrapolate that 20% of 30,000 shops to the total of 355,000 public retail premises, you get a figure of 71,000 shops, pubs and cafés which wheelchair users simply cannot access. That is a scandalous number in this day and age.

The Equality Act 2010 lists nine characteristics that are all protected against discrimination, including disability. The Act has replaced all separate disability discrimination legislation. It is an offence under the Act to fail to make “reasonable adjustments” to premises so that disabled persons are not discriminated against. What is a “reasonable adjustment” naturally varies between the needs of different disabilities, persons, buildings and circumstances, but it can be enforced only by a person taking a service provider to court to compel that provider to make the adjustment.

The Lords Select Committee found that most disabled persons and disabled organisations felt very strongly that disability issues had taken a retrograde step in the 2010 Equality Act, because all potentially discriminating characteristics were now being treated equally. What is the problem with equal treatment, you may ask? The committee pointed out that people with other characteristics such as sex, colour, sexuality and ethnicity needed to be treated equally to avoid being discriminated against—but, for disabled people to achieve equality, they needed different treatment. That is an absolutely crucial distinction which was never considered when the 2010 Act was passed—and that is the motivation behind my Bill: to try to get equality for wheelchair users.

I turn to the clauses in my Bill. Section 20 of the Equalities Act defines “reasonable adjustments” as,

“(a) removing the physical feature in question,


(b) altering it, or


(c) providing a reasonable means of avoiding it”.


My Clause 1 states that, if a public building has a step of six inches or less, a ramp suitable for wheelchairs has to be provided. If a building has a step of less than 12 inches, a ramp has to be provided. If the building has more than one step, my Bill does not apply. The difference between a six-inch step and a 12-inch step is simply revealed by Clause 2, my commencement clause, which states that the requirement to remove a step of six inches comes into effect on Royal Assent and the requirement to remove a step of 12 inches comes into effect a year later. That is simply an acknowledgement that removing or replacing a 12-inch step is a slightly bigger undertaking than getting rid of a little six-inch step. Like the Equality Act itself, my Bill would apply to England, Scotland and Wales.

In a nutshell, that is what my Bill does. If noble Lords will permit me, I need to set out why the Government Equalities Office is adamantly opposed to making specific adjustments, is opposed to my Bill and wishes to reject it—and I shall try to persuade noble Lords why it is actually wrong. I and the Select Committee agreed that keeping the general principle of “reasonable adjustments” is sensible, and I do not seek to amend that principle at all in the Bill. However, when we have clear evidence that something is not working in a select, specific area of the Act, and after seven years of experience of the Act, it is not good enough to take the GEO line that the principles of the Act are sacrosanct and cannot be amended.

The Select Committee was highly critical of the failures of the 2010 Act to assist disabled people. On launching the report, the chair, the noble Baroness, Lady Deech, said:

“Over the course of our inquiry we have been struck by how disabled people are let down across the whole spectrum of life. Access to public buildings remains an unnecessary challenge to disabled people … When it comes to the law requiring reasonable adjustments to prevent discrimination, we found that there are problems in almost every part of society, from disabled toilets in restaurants being used for storage … to reasonable adjustments simply not being made”.


The GEO members were the only people giving evidence to the Select Committee who though that there was no problem. The Government Equalities Office head lawyer, Tracey Kerr, said that the concept of reasonable adjustments is well understood because of case law. She said:

“We have found that as the case law has developed it becomes clearer and clearer for people to understand what a reasonable adjustment might be in certain cases. So we think that that has been a successful development of case law”.


But the vast bulk of evidence to the Select Committee was that that was not the case.

Of course, a Government lawyer specialising in this work would lead herself to believe that everyone knew the case law and would be granted their rights—but that is not happening on the ground. The Select Committee said:

“It is worrying, therefore, that evidence of problems in obtaining this right have emanated from almost every part of society. We heard of problems in gaining reasonable adjustments from employers and education providers, on buses and trains, and in taxis, shops, restaurants and hospitals. We were told of sports grounds and other entertainment venues that failed to make necessary adjustment”.


It added that,

“witness after witness told us that, contrary to the Government’s view, the provisions were neither well known nor well understood”.

In evidence to the committee, the Law Centres Network said:

“There is a crucial difference between, on the one hand, awareness of the phrase ‘reasonable adjustments’ or the understanding that a duty exists and, on the other, an understanding of what the duty entails or how to comply with it in practice”.


The committee agreed with that, and said that the evidence suggested that,

“even where there was awareness, understanding was often poor”.

Thus all the evidence to the Lords Select Committee, and its findings, indicate that the duty to make reasonable adjustments is simply not happening. My Bill will not change the duty but will provide additional clarity.

What about the cost? I did my own survey of shops and cafés within half a mile of this Parliament. I looked at public retail buildings on Victoria Street, Strutton Ground, which is a lovely little shopping street, and Horseferry Road. The vast majority of big chain stores and shops on Victoria Street have level access from the pavement or a lip of about an inch at most. New-build shops nearly all have level access. However, in those three streets, within a few hundred yards of this building, there are three premises with multiple steps, two with steps of less than 12 inches, three with steps of less than nine inches, 26 with steps of less than six inches, and 28 with steps of less than three inches. Implementing the six-inch rule provision of the Bill would immediately make 54 of those 62 shops accessible to wheelchair users—an 87% improvement.

I reference the shops in this location because they are right on the doorstep of Parliament, but they are representative of the 71,000 others with the same lack of access in every street of every town and city of this country. The cost of a ramp, either lightweight aluminium or fibreglass, to access premises with a step of up to six inches, is generally less than £100. One-third of the inaccessible shops had a little step of less than three inches, which does not need a special ramp at all, but £10-worth of concrete to make a little slope—then the wheelchairs can get into them, as some shops have done. That is why we are so steamed up about this. We can see tens of thousands of buildings that we could easily get into with less than £100 of investment—and you cannot get a more reasonable adjustment than that.

Some of my noble friends who will follow me will make the case that we should be removing steps of whatever height. I agree that sooner rather than later we should do that, but I do not want cost to be used as another excuse not to get us access to 87% of the premises that we cannot get into now, when the adjustment would cost less than £100. I accept that, in a minority of cases, where the step is 12 inches and the shop door is right on the pavement, a ramp cannot protrude on to the pavement, and that the shop would have to recess its doorway a bit, which could cost possibly £2,000 to £3,000. But many retail premises already have a recessed doorway, and the step could be replaced with a ramp without altering the door or shop facade at all.

So if we cannot get in, what do we do? The government response from the Despatch Box to my last Bill was:

“They should first approach the service provider to discuss why … they cannot access the service or function in question, and discuss what adjustments they require. If, following discussion, the service provider fails or refuses to make a reasonable adjustment, the disabled person could take their custom elsewhere; alternatively, they might decide to bring a case of alleged disability discrimination before the … courts”.—[Official Report, 21/11/14; col. 664.]


That was the Government Equalities Office’s official response.

Imagine that you are out shopping and you cannot get in. How do we discuss it? Do we sit in our wheelchairs on the pavement and shout for the shopkeeper to come out to discuss it? If he does not have a ramp, what good is discussing it going to do? If he decides to buy one next week, it does not help us very much when we are shopping today, does it? Disabled people are told by the Government that if they cannot be served they should just take their business elsewhere. Would they say that to a black person, a gay person or anyone else in the protected categories? I hope to God that they would not.

The Select Committee concluded, based on the evidence of everyone except the GEO witnesses, that enforcement had failed. It was highly critical that disabled people had to go to court to get access. The following exchange took place during the Select Committee inquiry. Tracey Kerr, the head of legal services at GEO, said:

“We think it is most appropriate and it is quite unusual and it gives claimants quite a lot of power in relation to going to the courts and explaining … what is reasonable … for the courts to decide”.


The chair, the noble Baroness, Lady Deech, interrupted:

“How long is it going to take for something to go to court? Surely you cannot expect a disabled person to go through the whole judicial procedure just to get that determination. It is too late”.


The lawyer replied:

“One would hope that the employer, the service provider … would be aware of the need to make sure that they were taking into account the issues and the person before them … they should be building that into their thinking about how they are going to provide their services”.


What a ridiculous answer. The reason the disabled person has to take the service provider to court in the first place is that the provider has failed to do all the things which the government lawyer wished, hopefully, that they would be doing. It was quite an incredible answer.

Although I cannot understand the complacency of that answer, it was exceeded by the deputy director of the equality framework of the Government Equalities Office who, giving evidence in the same session and in answer to the noble Baroness, Lady Thomas, about the failure of enforcement, said—and noble Lords should listen to this on Parliament TV to get the full flavour:

“Clearly where the difficulty comes … the nub of the issue and an extremely difficult one is trying to get some kind of handle on enforcement at the very earliest stage before in effect there has been any kind of dispute and that is the $64,000 question and the element that is invariably the most difficult to solve”.


I am not making this up. I do not have the imagination for such an extraordinary answer. When asked what the Government will do about the 800,000 wheelchair users who cannot get into public buildings because the Equality Act is failing, the official Government Equalities Office answer is that,

“that is the $64,000 question”.

Well, my Bill is a £100 answer to that question.

I am willing to do a deal with the Government. I acknowledge that six inches and 12 inches are arbitrary figures and we could have different heights—and of course they would have to be in centimetres. I acknowledge that businesses may need more time than Royal Assent or 12 months to implement any change. If we get to Committee, I am willing to fillet the specific details in my Bill and replace them with an order-making power for the Minister to specify in regulations the access requirements that I have outlined today. That would give the Government the chance to correct any errors they may perceive in my Bill. It also removes the excuse to do nothing about this problem. This time we are not just going to go away and shop elsewhere. Passing my Bill, or something like it, will not undermine the principle of “reasonable adjustments” in the 2010 Act—but it would grant 800,000 wheelchair users access to about 60,000 of those 71,000 shops that are currently inaccessible. It is little wonder that the Select Committee concluded:

“Government inaction is failing disabled people”.


I had an excellent meeting yesterday with the new Minister for Disabled People. Like her predecessor, she is caring, compassionate and determined to do all she can to help disabled people. But she has no power to change one comma of disability legislation because it is not in her department. I commend what she is doing with disabled champions and seeking to get an accessibility category added to the Great British High Street Award. I commend the city of Chester, which she told me about and which has excellent disabled access. These are all jolly good things—but we must have an amendment to the law if we are to get fair treatment for disabled people now rather than in the distant future.

I anticipate that the Government will dismiss the Bill. That is why I have tried noble Lords’ patience a bit this morning by setting out in detail why I think the GEO is utterly wrong. Wheelchair users are getting the runaround and being discriminated against multiple times. We cannot get into buildings in the first place; the Government will not change the law to assist us; the ECHR, which can do something about enforcement, does nothing to help; and disabled charities that would like to help are not allowed by law to help. My Bill does not tackle the problem of taxis and buses, or the failure of trains or platforms to have level access. It does not demand government expenditure or great private sector investment. It is confined to tackling one gross inequality which can be fixed cheaply, easily and quickly. I beg to move and commend my Bill to the House.

--- Later in debate ---

[Lord Blencathra]

My Lords, I thank the 17 Peers from all sides of this House who have participated in this important debate. I am particularly grateful to those who are not wheelchair users but who support the Bill simply because they agree that there is a fundamental injustice here that can be easily corrected. Noble Lords had many different points to make, and I shall try to address them all as quickly as I can. However, every single Peer who has spoken, apart from the Government, made the point that wheelchair users are being discriminated against unfairly, and that it has to stop, and that my Bill or something like it is a simple and cheap solution to much of the problem. It does not solve all the access problems, but it tackles over 80% of them.

My noble friend Lady Anelay of St Johns was right to emphasise the importance of post-legislative scrutiny, as carried out by the noble Baroness, Lady Deech, and her committee. She made the point that, to be treated equally, disabled people need to be treated differently. I am very willing to amend the Bill in any way, so long as we can get access over those little steps—whether it is six inches or 10.325 centimetres, I do not care. She mentioned unemployed people and their rights, which was covered extensively in the Select Committee report, but I have not covered it in my Bill. And she is right: I try to avoid cafes, restaurants and bars, but if they cannot let me in to be served, I am not going to be served out on the street—they can clear off, and I would say that to them quite bluntly.

The noble Lord, Lord Berkeley of Knighton, said that if everyone spent 12 hours in a wheelchair it would open their eyes. I remember when the Labour Peeress, the noble Baroness, Lady Bakewell, was introduced, and a few weeks later she broke her leg. She was stuck out in plaster for a few weeks. She was appalled; she could not get to most of this House or Parliament, let alone all the other places in the high street. It is ironic that we can get into every park around London, but we cannot get into 20% of the shops and pubs around those parks.

I pay tribute to my noble friend Lord Borwick for the wonderful work that he has done in ensuring that London black cabs are accessible. Frankly, I dread the idea of what I regard as the criminal and vile company Uber putting London black cabs out of business, because wheelchair users would never travel in a taxi again. Uber has no responsibility for providing wheelchair-accessible taxis. I agree that more training is necessary. In my little chariot, I carry a short, stubby screwdriver, because half the cabbies cannot find the screwdriver to undo the ramp. He also stressed the additional cost of disability, including the whisky; I agree entirely with that. He is also right that the Bill would benefit up to 4 million people using pushchairs, prams and baby buggies in addition to wheelchairs.

The noble Baroness, Lady Brinton, also did sterling work on the Lords Select Committee. I agree on the need for guidance on the steepness of ramps. A few years ago, I was in a hurry trying to get to the Gatwick Express. I zoomed out of a black taxi, down the ramp; it was not on a high kerb and I did not wait for the cabbie to help me—my little chair went over backwards and I cracked my head open, and I was in hospital for a little while. That may explain some of my speeches afterwards. So yes, we need some guidance on the steepness of ramps. Some of us in chairs take risks that we are not supposed to take. I, too, commend the Institution of Civil Engineers on One Great George Street. I do not have to go in there, but I sometimes use that ramp for the fun of using it—it is such a magnificent construction.

I pay tribute again to my noble friend Lady Deech for her superb chairing of the Lords Select Committee. The whole House and the Government should heed her wise words. I agree with her that the government response to her committee’s report was feeble. Disabled people have been let down across the piece. If the Government or the House do not want to listen to me because I may be slightly biased, not just because of my party allegiance or because I am in a chair, as a distinguished Cross Bencher chairing that committee she is not biased, and the committee’s report was authoritative. Quite rightly, she said that there was there is a callous or ignorant denial of rights to wheelchair users.

I thank the noble Baroness, Lady Gale, the spokesman for the Opposition. I am very grateful for her and for her party’s support. She is right to say that the onus all falls on disabled people to fight for access, and that is not right. It may be okay for us middle-class users such as myself and the three noble Baronesses here today in wheelchairs—we are articulate agitators and we can fight for some of our rights—but there are tens, indeed hundreds, of thousands of wheelchair users who are not like us and do not have the privilege of being able to make speeches like this to fight for those rights.

I congratulate the noble Lord, Lord Haworth, on his speech. He emphasised the Select Committee’s point that the 2010 Act was a retrograde step for disabled people. The Act was well-meaning but had unintended consequences. He again emphasised that it is all the little things that make life a misery. I understand perfectly well that I cannot get up the six steps to the Cinnamon Club—I have not had a nice dinner there bought by someone else in many years—but I am annoyed that I cannot get into the place next door that has only a three-inch step, which they could easily have removed.

I thank the noble Baroness, Lady Jones of Moulsecoomb; I am very grateful for her contribution. I appreciate that she has to dash off any second—I told her that I would prefer her to speak and go rather than not speak at all. She is also one who has no experience of a wheelchair but says that it is the sense of justice that annoys her and that the Act is just not fair. What better justification for changing the law than to do it out of a sense of justice.

My noble friend Lord Holmes of Richmond gave a magnificent speech—what a powerful contribution, as always. I believe that he is the only person to win a record six gold medals in one Olympic Games. We have seen him champion many worthy causes in this House, and I am particularly pleased that he is championing my Bill. It gives me more justification than anything else for thinking that I must be on the right track, because I consider his support significant. He is right that business would get a boost if disabled people could get into shops. And he is also right that you can feel it in your gut and it makes you pretty angry and stroppy at times when you cannot get into a place that you should easily be able to get into.

The noble Baroness, Lady Masham of Ilton, has tremendous experience and I hope that the House will listen to the most senior female Peer in this building, because her opinion counts. She made the point that solving the problem of a four-inch step is pretty easy. One shop can do it; the one next door simply has not thought about it. Why would people in a wheelchair want to get into the shop? Well, if you do, what is the problem? She stressed that my Bill has no cost to the Government.

I thank the noble Baroness, Lady Meacher, and I take her point. If the Government will do something about steps of six inches or lower, I will be quite happy in Committee to drop, or postpone for some time, the 12-inch problem, which has a greater cost. As I said, if we deal with steps of six or fewer inches, we would deal with 87% of the problem, so I am happy to put the 12-inch problem on the back burner for a bit, if that is the mood of the House.

My noble friend Lady Morris of Bolton made an excellent point. I, too, have lost control of my chair—luckily I have managed to avoid running into a hedge, but I can always grab a lamp post, which has saved me on a few occasions. My noble friend is also right that it is all the little things that cause us problems. I have tried to keep the costs down in my Bill. In the briefing that I circulated, I referred to the famous case of Allen v the Royal Bank of Scotland, taking place at 5 Church Street in Sheffield. He won his case; he could not get into the bank, a listed building. Eventually, it got to the High Court, after he spent his money to fight it. The judge ruled that providing a lift for this person in this listed building at a cost of £200,000 was a “reasonable adjustment”—yet the Government quote a possible cost of a few hundred pounds as one of the justifications for opposing my Bill.

I will try to be as quick as I can, but I do not want to miss anyone out. I listened carefully to what my noble friend Lord Shinkwin said. I do not pretend to fully understand all the complexities of the case, but I am certain that he was treated fairly shabbily by the EHRC. He was appointed to be the disability champion, but that post was scrapped before he got there. If nothing else, it all adds to the evidence that disability issues have fallen down its agenda. I urge him to stay to fight in the EHRC for disabled issues. It has been my experience—indeed, all our experience, as parliamentarians—that we can spend an awful lot of time worrying about conspiracy theories and waste a lot of our lives without getting to the bottom of them. But there is a real job to be done in the EHRC in fighting for disabled people. If he does not stay to fight, I cannot and nobody else can. My noble friend Lord Holmes of Richmond does a magnificent job. We need him in there fighting for it and putting other issues behind him—let us go forward.

I thank the noble Baroness, Lady Thomas of Winchester, for her marvellous work on the Lords Select Committee. She adds to the evidence that many small shops are inaccessible. It is a very good point that local authorities should do more. I like the idea of local mayors or chambers of commerce taking the initiative. We need others to take the initiative if the EHRC will not.

My noble friend Lord Wasserman quoted the Prime Minister talking about building a society that works for everyone. I wish that I had thought of that, because it is a brilliant point. He again stressed the economic benefits of the Bill and the strong moral reasons to remove stumbling blocks.

I agree with the point by the noble Lord, Lord Hussain, about places of worship and other public buildings. Many are old buildings where it is more difficult to deal with multiple steps. I had not thought of the problem of mosques and I am very happy to have discussions with him to see what can be done and how the Bill can, if necessary, be amended to tackle that problem.

I am grateful to the noble Lord, Lord Low of Dalston, for speaking in the gap. I agree with him that reasonable adjustments should cover every eventuality but, as all the evidence to the Select Committee showed, it simply does not happen on the ground. I also agree that these steps should already have been removed. When I searched on Google for “reasonable steps” and “getting rid of steps”, nearly all the hits were for companies advising people that, because of the Disability Discrimination Act 1995, they had to remove steps. I could not find a single Google hit saying that they had to get rid of steps because of the 2010 Act. All the examples listed had done so because of the DDA 1995. I can also tell the noble Lord that I looked at Section 22. It gives the Minister order-making powers but not to do the specific things suggested in my Bill. Therefore, it does not technically cover what I am seeking to achieve here.

I come to the Minister’s speech. I say straightaway that she is an excellent Minister. She is the Minister of State at the Home Office—I have been there and done some of that, so I know what it is like—and she has an enormous and difficult portfolio covering countering extremism and hate crime, integration, devolution, data strategy, identity and biometrics, better regulation and animals in science. In addition, she has to answer for everything else here in this House. She is not the Minister for the Disabled, yet she has drawn the short draw today, having to stand at that Dispatch Box and, in my opinion, defend the indefensible. Therefore, my condemnation of what she has had to say is no reflection on her whatever, as she has my deepest personal respects.

It is obvious that the Government Equalities Office has produced the usual discredited litany of excuses for doing nothing to help disabled people. It says that “reasonable adjustments” is a well-understood mechanism, if only by government lawyers. The Select Committee said that the concept of “reasonable adjustments” should stay. I agree entirely, but the Government have ignored every other bit of criticism from the Select Committee about the failures of the Act. The Government also say that making specific requirements for wheelchairs would open up a Pandora’s box of other specific adjustments. However, if it were another category affecting 800,000 deaf or partially sighted people and there was an easy technical solution, I would say, “Open that box and make that amendment as well. Justice demands it”. Another excuse is that forcing disabled people to take service providers to court personally somehow empowers them. In the past, the Disability Rights Commission would fight for them, but no more. Of course, there is also the old chestnut about costs.

How have the Government, which I have supported since I was a 14 year-old, got themselves into this hole where disabled people are no longer on their radar? It was a Conservative Government who introduced the ground-breaking Disability Rights Act 1995 but now, as everyone giving evidence to the Select Committee said, disability has dropped way down the interest scale with the 2010 Act. As the committee said:

“Our conclusion is that the Equality Act 2010 has led to a loss of focus on disability”.


How have decent, caring Ministers lost control of policy on the disabled to the civil servants at the GEO, who guard the 2010 Act like fanatical vestal virgins guarding the sacred flame that must never be allowed to go out? It must not be amended, no matter what its failings and no matter how easy it is to amend it at little cost.

On 16 March this year, the Government told me in a Written Answer that since 2015 the Government Equalities Office has issued 75 press releases and statements on transsexual and transgender issues and 12 on disability. The department is obsessed with dealing with a tiny minority of the transgender lobby, and it does not seem to give a damn about the 11 million disabled people in this country. The transgender lobby demands the right to use male, female or whatever toilets, but 800,000 people cannot get into a building in the first place to have the right to use any toilet.

The new Minister for Disabled People, who is also a decent Minister—I met her yesterday—offered me a round-table discussion with other Peers on this problem, but she does not make policy, which is firmly in the grip of the GEO. I shall take her up on that round table and will invite other Peers to join us, but we are not going to go away quietly.

I urge Ministers to get a grip of the civil servants running this policy and to tell them that wheelchair users have rights too. We do not want special treatment but, in order to get equality, we need different treatment, as the Select Committee pointed out. Wheelchair users have no option but to take our business elsewhere, to the shops that are “caring” enough to let us in. But we will continue to demand that the Government legislate for this injustice, either in my Bill or through an order-making power.

Yesterday, I received a letter from the Secretary of State for the Environment assuring me that the Government recognise animals as sentient beings and promising to improve animal welfare standards. I suggest he should send it to the Government Equalities Office and tell it to treat disabled people with half the concern we rightly have for animals.

In the meantime, since the Minister is responsible for dealing also with hate crime, I should perhaps say—and not jokingly—that every wheelchair user should call the police and report a hate crime every time we cannot get into a shop or are refused access. If every one of us did that then we would add at least 10,000 new offences every day and they would be as valid as some of those already reported. We will fight with renewed vigour, and I ask that the Bill get a Second Reading so we can continue the battle for justice for wheelchair users. I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Criminal Finances Bill

Lord Blencathra Excerpts

3rd reading (Hansard): House of Lords & Report stage (Hansard): House of Lords
Tuesday 25th April 2017 Lords Chamber

[Lord Judd (Lab)]

My Lords, I declare an interest: I was Minister for Overseas Development, before moving on to the Foreign Office. I have served both professionally and voluntarily in the development sphere in various non-governmental organisations, including as director of VSO and subsequently Oxfam. To all of us involved in that work, the importance of the Bill, which I very much endorse, and of the amendment that has just been spoken to, cannot be overemphasised. Indeed, I noticed the other day that the Prime Minister, in saying in the Conservatives’ election campaign that they will stand by their commitment on overseas aid, emphasised that what was important was to make sure that the aid was being spent in the most effective way and not wasted.

It is terribly important to recognise that the people of too many developing countries are being robbed by their leaders, and that existing arrangements enable those leaders to get away with it. If we are going to talk about the effective use of aid, it seems to me that where we have the authority to take highly relevant and effective steps, we should do so. Yes, of course, we must put on record that Britain has taken great steps to provide world leadership in this sphere. It is leading the world already. That is why the remaining gaps are very ugly anomalies. I do not like to put it in these crude terms but it always seems to me that people either have some reason for not implementing immediately what is proposed or they do not, and if they do not, let us do it. If they are going to find ways of delaying—having still to work out arrangements and so on—this must raise suspicions that arrangements are going to be made in other respects as well.

From that standpoint, I say simply that, with all my experience in this sphere, this is a crucial matter. I congratulate the noble Baroness and her co-signatories on having stood by their guns. I hope the amendment will be taken seriously because I believe there could be a very important consensus in this House if we are prepared to put ourselves on record.

[Lord Blencathra (Con)]

My Lords, I wanted to intervene earlier in this debate following the speech of my noble friend Lord Kirkhope because I, too, wish to refer to Mr Cameron and the G8 summit.

First, I shall say that Amendment 8 is unnecessary but harmless, so I shall support it—but Amendment 14 is wrong and misguided for a number of reasons. First, we have no right, neither legal nor moral, to seek to impose our rules on law-abiding, self-governing British Overseas Territories. When I hear some of the NGOs outside this House talking about our overseas territories, I am appalled at their old-style colonial arrogance. One notorious campaigner against so-called tax havens has even suggested in his book that they should be closed down and the natives made to depend on overseas aid once again—and he calls himself moral. He is also one of the architects behind these proposals. I believe that we have no moral right because the United Kingdom creates more dodgy shell companies than some of the tightly regulated overseas territories and Crown dependencies. We need to come up to their standard, not the other way round.

Secondly, we should not impose these public register rules because the rules themselves are rubbish, as I shall attempt to explain. Not a single other country in the OECD is implementing this—and they have made clear that they never will. This public register wheeze was invented by my right honourable friend Mr Cameron in 2013. No other country will touch it with a barge-pole and the only reason that he was so keen then to foist this system on the overseas territories was so that he could point to others being in the same boat as himself and would not look isolated.

I was involved in the background at that time and had a meeting with prominent NGOs prior to the G8 in 2013. I asked them why they were not campaigning against the real tax havens of this world—Luxembourg, Delaware, Mauritius et cetera—but targeting the good guys such as our overseas territories. They responded that they had no chance of influencing policy in those tax havens, but that Mr Cameron was so desperate for a win at the G8 that he and the overseas territories were an easy, soft target.

I should make it clear for the record that at that point I was the director of the Cayman Islands office in London but that I have no connection whatever, either financial or otherwise, with the Cayman Islands Government now. However, I still deeply admire the way the territory is run and the exceptional level of integrity that it brings to financial services, which is greater than in the United Kingdom. I shall attempt to justify that.

Why do I say that our UK policy is farcical? Because it says that the way to get at dodgy persons setting up dodgy shell companies is to have a public register so that nosey parker NGOs can trawl through them and out those people. No—what you must do is stop them setting up dodgy shell companies in the first place. Jersey and Cayman are the top jurisdictions in the world, with by far the tightest regulations and checks on people setting up dodgy shell companies.

A few years ago an Australian professor at Griffith University, Professor Jason Sharman, did a huge experiment with his team on setting up shell companies. They created dozens of email and other addresses at different places around the world, from Islamabad, Nigeria and Moscow to London, New York and elsewhere. Many of the locations were highly reputable; others were places where you should hang on to your wallet if you get an e-mail saying you have £10 million to invest within them. The researchers sent messages to hundreds of corporate service providers around the world, which varied in credibility from, “We wish to establish an export base in your country for our long-established company” to messages from addresses in Pakistan saying, “We have a few million dollars and want to set up some companies in complete secrecy and want some fake bank accounts”. What was astonishing, according to Professor Jason Sharman’s research, is that while the majority of CSPs did not respond to the latter, highly suspicious messages—or told them to get lost—a very large number responded and were willing to help.

Professor Sharman’s team invented a rating system for the responses—and guess who came out top as the most difficult, indeed impossible, places in which to set up fake shell companies without supplying beneficial ownership information? Yes, it was little old Cayman and Jersey. I have Professor Sharman’s chart here, with them achieving 100%. Who was at the bottom of the heap, where you could almost walk in with a suitcase full of terrorist cash and set up a company with no questions asked? It was not Panama but individual states in the United States such as Delaware, Montana and Wyoming. They are way down at the bottom of the chart.

There are 2 million new companies created in the United States every single year. If you want to set up a dodgy shell company, you go to the United States—or rather, you go on to email and do it in under half an hour for less than $300. These states have said quite bluntly that they do not care what the President signs up to at federal level or at the OECD; they are in charge of company registrations in their state and will never in a million years go for public or central registers. They will not go for any more scrutiny before setting up companies.

Where does the United Kingdom come into this? Unfortunately, your Lordships can guess who was 13th from the bottom of the heap—below Vietnam, Panama and Ukraine. Yes, the United Kingdom was 13th from the bottom on creating dodgy shell companies, because we do it with insufficient verification of the beneficial owners. So clobbering Cayman, Bermuda and the BVI with rules which only they, not the other 19 countries of the OECD, would follow is misguided and foolish. I agree with my noble friend Lord Hodgson that we do not make the world a better or a more transparent place by hitting the good guys, encouraging the bad and letting all the Mugabes of this world go to the real tax havens to set up accounts.

Neither does the OECD ask for these public registers. The OECD merely wants all legitimate authorities to get speedy access to the relevant information so that the police, security services and financial regulators can check the legality of owners and their transactions. That is the point of access to beneficial information. I know that the Cayman Islands has been providing that information without any objection whatever for the last 10 years and has now implemented a system to give that information to legitimate authorities within 24 hours, seven days a week. That is a far better system than publishing registers.

It is perfectly legitimate for many individuals to create companies and seek to keep the ownership information private. There is no right for the public, nor for anti-capitalist NGOs, to know who owns private companies. But there is a need for legitimate law enforcement authorities to get speedy access to that information—and the overseas territories are in the forefront of providing it. What is more, I know that the information provided by the Cayman Islands, for example, will be verified by the authorities—as opposed to what will be supplied by Companies House, which does not verify the accuracy of anything. It is left to individuals to say to Companies House, “I promise that I’m telling the truth and I am who I say I am”. The overseas territories do not accept that.

So I ask this: will my noble friend the Minister give me an assurance that, in due course, the UK Government will make an attempt to get our beneficial ownership information in Companies House as up to scratch and as good as that in the best of the OTs? Our overseas territories should be lauded, not criticised, for their work on financial services. For these reasons, I oppose Amendment 14 and believe it should be rejected.

Draft Investigatory Powers Bill

Lord Blencathra Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Bates]

In many ways, we are starting from similar positions. The noble Lord believes that the people who are accountable to the public for the decision, if it goes right or wrong, should be the ones who sign the paper. However, it was very clear through the process of the reviews, which we have listened to, and the other work that previous committees have done in looking at this matter that the level of public confidence would be strengthened if there was a judicial element to it. If there were an imminent threat, the Home Secretary would retain the right to be able to issue the warrant herself, but it would be subject to a judicial review within five days. That ability is there and the two-pronged approach is probably about the right level, considering where the public mood is at this time.

[Lord Blencathra (Con)]

My Lords, I am grateful to my noble friend the Minister for his kind remarks about the Joint Committee I was privileged to chair four years ago. I think we were the first to point out that RIPA was not longer fit for purpose. It is clear from the Home Secretary’s Statement, from glancing at the section headings in the Bill and from looking at the adoption of the Anderson report and the other independent reports, that this Bill is a far cry from the original Bill that we scrutinised. To me, the crucial thing is that any extraordinary powers we grant to the security services and the police are not wrapped up and hidden in some obscure clause so that we are not quite sure what we are voting for, but are set out clearly so that Members in both Houses have a chance to vote for or against them as the case may be. That transparency should reassure the public that we are giving the security services and the police the appropriate powers, approved by Parliament.

Will the Minister consider a couple of additions I have spotted at the moment? I think we need a technical advisory committee that will look rapidly for new technological or internet gizmos or whatsits and be able to recommend to the commissioners that the Bill needs to be amended. Then we need something, such as the super-affirmative procedure, to amend the Act rapidly. Otherwise we will be in the same position as with RIPA, which gets older and older and is not updated all the time. We need those changes, I suggest.

[Lord Bates]

My noble friend is right, but that might not be necessary. I appreciate that the Bill has only just been published and is 300 pages long, but it has been worded as far as possible to allow for future proofing of the legislation. My noble friend Lady Shields plays an important role as a Minister looking at this area with her immense technical knowledge. I personally have benefitted from that knowledge in preparing for the Statement. A final point is that we have a plethora of different powers spread across different bits of legislation and a key driver of the Bill is that it is a great opportunity to bring them into one place so that they can be subject to that kind of scrutiny. I think that that is another element that we will strengthen along the lines of what my noble friend proposed.

Psychoactive Substances Bill [HL]

Lord Blencathra Excerpts

Tuesday 14th July 2015 Lords Chamber

[Lord Paddick]

My Lords, I have put my name to the amendments of the noble Lord, Lord Rosser, in relation to prisoners. In Committee, I was not convinced but what I have learned subsequently has made me very much a supporter of these amendments. Earlier today, we heard the noble Lord, Lord Ramsbotham, talk about the report by the Chief Inspector of Prisons and how it highlights the problems caused by new psychoactive substances in prisons. This morning on the BBC Radio 4 “Today” programme, a prison governors’ representative put new psychoactive substances at the top of the list in terms of what was causing more deaths and violence in prisons. He put it above overcrowding and lack of staffing.

A friend who is a doctor told me that he has to commit people to mental hospitals because of psychosis caused by new psychoactive substances. When one thinks of the increased dangers for people who have psychotic episodes as a result of taking these substances in a confined space such as a prison, the potential consequences clearly make this a serious issue.

The clincher for me is that prisoners are using these substances because they are not detectable in the routine drug testing of prisoners. A deterrent for prisoners who might want to use controlled substances under the Misuse of Drugs Act is that they would show up under those tests. The fact that prisoners are being pushed into using new psychoactive substances because they do not show up in these tests requires an additional sanction against those who supply these substances in prisons. That is why I very much support the amendments tabled by the noble Lord, Lord Rosser.

I turn to the amendments spoken to by my noble friend Lord Kirkwood of Kirkhope and the right reverend Prelate the Bishop of Bristol. The Minister talked about an anomaly when we discussed an earlier group. The anomaly is that selling these substances in the vicinity of schools is covered but that selling in the vicinity of other premises where there are vulnerable young people is not. Supplying these substances to people under the age of 18 again should be an aggravating factor.

I think that in Committee there was a discussion about this amendment not being reflected in the Misuse of Drugs Act, which is why there now is a further amendment tabled by my noble friend Lord Kirkwood to amend the Misuse of Drugs Act in a similar way. I would welcome hearing the Minister’s response as to why it is not an anomaly that schools are covered but other types of premises are not.

[Lord Blencathra (Con)]

My Lords, I apologise that I have not been able to be here for the whole debate. I had meetings earlier and I have others tonight. I thank my noble friend the Minister for the amount of information he has supplied. Indeed, I have not had enough hours in the day to read all the PDF attachments in my email inbox. I am sympathetic to one of the amendments; namely, that relating to children’s homes or places which hold vulnerable children, or whatever is the current correct terminology. Clause 6 creates an aggravated offence for selling drugs outside a school. It seems to me an anomaly if we do not include places which hold even more vulnerable children than those in schools.

I think that in Committee my noble friend said that one of the difficulties would be that everyone can see where a school is—there are big signs and lots of children—but that drug dealers might not know when they are selling drugs in the vicinity of a children’s home. I do not think that that will wash. The bad guys selling drugs know every potential outlet better than anyone else. They will know when there is a children’s home and a potential outlet nearby, and they will target it. I would like to hear from my noble friend the practical difficulties about including children’s homes or places which hold vulnerable children. It seems to me that they are even more important than ordinary schools.

For a few reasons, I am not so sympathetic on the point about prisoners. Drugs are a problem in prison but they should not be. There is no excuse for drugs being in prisons but certain excuses are used. We have, in my view, the ridiculous situation of completely free association. Wives and girlfriends can freely mingle with the prisoners, most of whom are male. They can hug, kiss and cuddle, and they have every opportunity to pass on drugs. I have never understood why we do not have a system where there is a glass screen between the visiting friends and relatives, and the prisoners, so that drugs cannot be so easily passed on.

In 1993, my noble friend Lord Howard of Lympne went to the Home Office. He decided to crack down on drugs and introduced springer spaniel sniffer dogs to some prisons. Two things were immediately noticeable. First, as soon as the relatives saw the dogs, they had to return to their cars to deposit the goodies that they were about to take into the prison. Secondly, there was resistance from a large number of prison officers and governors about the policy. I apologise to that very trendy trade union, the Prison Officers Association, if I misquote it. However, I was told at the time by prison officers that, if you are looking after 700 men in prison, you have to reduce the tension level. The way to reduce the tension level then was to let them have illegal access to drink, drugs and pornography. That reduced the tension levels, they said. Therefore, I do not have much sympathy for prison governors who say that there is a problem with drugs in prisons and the Government should do something about it. They have it in their own hands to tightly control drugs in prisons. However, if the noble Lord, Lord Paddick, is right that it is impossible to test for some of these psychoactive substances, we need to make sure that visiting relatives are not able to pass them on. I would be amazed if little sniffer dogs were unable to detect them. It may be difficult to do so with a blood test, but we now read in the press about sniffer dogs which can detect almost anything. Some dogs can detect whether you are about to have an epileptic fit and it should be possible to have a tighter control regime.

Finally, why stop at prisons? I consider nightclubs to be an even bigger problem. If we are to have an aggravated offence of selling drugs outside schools, what about an aggravated offence of selling them in nightclubs, or near nightclubs where young people hang out? Again, that is a large captive audience. Perhaps we should have an aggravated offence for people in positions of responsibility who commit this offence. A tiny minority of military officers or police officers may be tempted to commit this offence, but perhaps it could be an aggravated offence. Off the top of my head, I can think of a few areas where I would like to see an aggravated offence introduced, but it may be best to restrict it to schools, with the possible addition of children’s homes.

[Lord Howarth of Newport]

My Lords, whatever I may think about the general principle of the legislation, if we are to have it, I am sure it is right that there should be aggravated offences where the interests and protection of children are concerned. I support the extension of that principle to prisoners. I applaud my noble friends for tabling their amendments and other noble Lords for their amendments, and for supporting the various amendments in this group.

I say to the noble Lord, Lord Blencathra, who is set fair to close down the whole country, as far as I can see, that I understand that one of the difficulties that prison governors now face is that it has become a not uncommon practice for family members to send letters to prisoners on paper which they have previously soaked in a psychoactive substance. When the prisoner receives the letter, the thing to do is to smoke it. Therefore, this is not as straightforward an issue, as the noble Lord, of course, with his experience, very well knows. However, these are good amendments and should be supported.

Investigatory Powers

Lord Blencathra Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord Blencathra (Con)]

My Lords, the last time that the noble Baroness, Lady Jones of Moulsecoomb, and I discussed this matter we were in complete agreement, which was rather frightening to us both. I listened carefully to what the noble Baroness had to say and today I am only about 25% in agreement with her, which she will probably be relieved about as well.

I give a warm welcome to the Anderson report for two reasons. First, I believe that he has the recipe here for agreement by all sides. He has rejected adding more ingredients to the old RIPA stew and come up with a new recipe which can be palatable to those in the security services and police who want more powers; to the Home Office, which wants to grant those powers; to the groups who are concerned about the invasion of privacy; and to we parliamentarians who want the powers—whatever they may be—to be clearly spelt out and granted by Parliament. The Anderson report does that.

The second reason why I like the report is that it entirely supports the report and conclusions of the Joint Committee on the original snoopers’ charter Bill, which I was privileged to chair. I thank my noble friend the Minister for his typically overgenerous remarks about me as its chairman. I was just the chairman; the real work and thinking behind it were done by the excellent members of the committee from both Houses—from the Labour Party, the Conservative Party and the Liberal Democrats, along with that venerable Cross-Bencher, the wonderful noble Lord, Lord Armstrong of Ilminster, who was not economical with the truth in giving us advice.

I have always felt that some of my noble friends thought that I was a bit offside in not backing the draft Bill and that my behaviour, as a former Conservative Home Office Minister, had let down the forces of law and order. However, my committee rubbished the draft Bill for one reason only: it was rubbish. I am glad that its flawed clauses were not added to the Counter-Terrorism and Security Bill in the last Session by my noble friend Lord King, as it tried to add unacceptably wide catch-all clauses to an out-of-date RIPA. To be fair, the Home Office civil servants, whom I rate immensely, quickly caught on that the draft Bill was wrong and worked quickly to redraft it, so I am afraid I disagree with my noble friend Lord Strasburger—I think there was a sea change in attitude in the Home Office.

However, that draft did not find political favour in the coalition and did not make progress. Instead, we had the Anderson study. I have gone through the report, A Question of Trust, carefully and cannot find a single instance where he has disagreed with the findings of our Joint Select Committee. Indeed, his recommendations exactly match ours. I am not being arrogant and claiming he was guided by us—of course not—but he examined all the issues in detail, as we did, and came to the same conclusions. Of course, we did not deal with interception warnings as those were not in our remit, but I suspect that, if they had been, we might have come to the same conclusions.

What are the key points? Anderson rightly sets out the principles in chapter 13. Difficult though it will be, they will have to be translated into legislation as part of the Bill. It is difficult for UK Acts of Parliament to do this, as opposed to EU law or United Nations conventions, which can prefix the regulations with a million “Whereases”—“Whereas this”, “Whereas that” and “Whereas the other”. But if we want public and parliamentary acceptability, we have to balance the granting of exceptional powers with enshrined rights to privacy in a transparent system.

I warmly welcome recommendations 1 to 12, which call for a completely new and comprehensive RIPA, covering all aspects of communications and written in simple language. It has to set out clearly what powers we are granting the security services and key law enforcement agencies. That can be done without revealing operational techniques, and it is no excuse to say that the law has to be obscure in order to prevent the bad guys knowing what we are doing.

Recommendation 12 is particularly important. It is vital that we have revised definitions of communications data and their subdivisions into traffic data, use data and subscriber data. The contents of some of these categories, especially subscriber data, have changed dramatically since 2000, and so have attitudes to privacy. Young people—and some noble Lords—seem content to put enormous amounts of information about themselves on Facebook and have a more relaxed attitude to invasion of privacy than some of our generation. That is why we need to engage, as recommendation 12 says, with “all interested parties” to attempt to rank, in order of the extent to which privacy is invaded, the information which law enforcement agencies want and the different regimes they would need to comply with in order to get it.

I can give the House the two easy examples for a start. At the bottom end of the privacy scale is the name of the subscriber, and at the top end are the subscriber’s emails. All the stuff in between—the bank account numbers, the location of calls, the websites visited and dozens of other bits of information—needs to be classified into categories, each requiring various conditions to be satisfied before it can be accessed.

I welcome David Anderson’s support, in recommendations 15 to 18, for the Joint Committee’s recommendation on web logs and his call for a discussion with all parties on how to resolve this issue, which is the most difficult we will have to deal with in this legislation. It was the issue which most exercised the Joint Committee and upon which we found it very difficult to agree. The law enforcement authorities and the Home Office say that it is vital; privacy campaigners say there is a great breach of privacy. After much discussion and thought, our committee unanimously concluded that this matter has to be set out clearly in the Bill and both Houses given a chance to vote on it. Provided that the Home Office builds on the other safeguards proposed by Anderson, I will back the collection of web logs, and I think that the measure will get through Parliament as well. However, it will not get through if there is an attempt to sneak it in through some obscure drafting.

Recommendations 24 and 25 on extraterritorial effect are also important, and David Anderson has homed in on the mutual legal assistance treaty—MLAT to its friends. Our Joint Committee liked MLAT as a principle but the Home Office said that it was far too slow. We said that a new treaty should be negotiated “forthwith.” We said,

“the Government should take advantage of the special relationship with the United States to ensure that bilateral arrangements with them are expedited”.

At this point, I will jump to judicial warranting because it is relevant to a point I want to make about MLAT. Mr Anderson recommended replacing the Home Secretary’s warrants with judicial ones. The judges—with all due respect to noble and learned judges—will be no better or worse than the Home Secretary. The submissions will still be drafted by the same highly qualified civil servants, based on the same evidence. On some rare occasions, the decision by the Home Secretary or the judges will be wrong and an incident may occur. That is an inevitable consequence of decisions made by human beings trying to guess the motivations of other human beings. As has been often said, the security services have to be lucky all the time; the terrorists have to be lucky only once. I now support judicial warranting for interception except for those rare cases that may involve national security and the agents of foreign powers. Some have said that the Home Secretary will be blamed if judges make the decision and an incident occurs. I disagree; that is nonsense. Not even our nastiest press or bloggers will get away with trying to blame the Home Secretary for a decision made by independent judges.

While I see no extra insight resulting from judges doing warranting, there are two major advantages. First, it gives a flavour of impartiality to the process and will be seen as a counterbalance to giving the security services and police the extra powers they want. This is quite different from the SPOC process, which we do not want magistrates anywhere near. Secondly—this shows the relevance to extra-territorial jurisdiction—American CSPs are familiar with judicial warrants and will happily hand over information to the FBI and CIA if a judge issues a warrant. However, they do not like handing over information because a British politician asked for it. That is where the noble Lord, Lord Scriven, and the noble Baroness, Lady Neville-Jones, are absolutely right. This is the pattern in the rest of the world and it is the case with our major ally, the United States, where most of the information is stored. Therefore, coming back to ordinary investigatory powers, we should extend judicial warranting for interception purposes for all requests, however minor, to the USA CSPs. In those cases, our judges should merely rubber-stamp the requests and route them through a newly negotiated MLAT that must take no more than five days, rather than five months, as at present.

There is something else we must do with the United States—stand up to them. Imagine if we had a giant United Kingdom company—a British Apple or Google—that stored vast quantities of information on US citizens. Imagine if the FBI or CIA asked this Brit company for information and it said, “Oh, sorry, can’t do that—need a warrant, you know. You need X, Y and Z and it will take six months”. What would happen? The Americans would round up every Brit in the States, issue international arrest warrants for every other Brit connected to the company and they would get 20 life sentences each. We have seen the Americans impose their Lex Americana on the world and we must do likewise if—a big if—we decide that Google or Apple holds information in California that we must have here. We should also serve the warrant for information on their UK-based executives and have the same sort of penalties for lack of co-operation. We may even very privately tell the USA that the feed they get from GCHQ is not guaranteed or that MUSCULAR will be down for a few weeks for essential maintenance. They play hard ball—whatever that is—with us and we should have the guts to do likewise. I know that my noble friend the Minister cannot even acknowledge those points without the risk of special rendition and waking up in Diego Garcia tomorrow morning, but we must think of playing by American rules if we are in the same game as them.

I have a few final points. The SPOC system works. Our Joint Committee probably started with the prejudice that it was incestuous and not rigorous, with one friendly policeman sitting beside another and rubber-stamping it. We assumed that magistrates would be a better choice. We were surprised to find we were utterly wrong. As operated by the Metropolitan Police, the SPOC system is absolutely first class. The same goes for the other big users which can allocate highly trained specialists to do nothing other than SPOC work. Indeed, we think that all smaller police forces should combine their operations into regional units or let the Met and other big forces competitively bid to do it. This is an example of where being big is good; the more cases they handle, the more professional they are.

The SPOC regimes operated by the other big players, the United Kingdom border agency—or whatever it is called this week—HMRC and the security services are also impeccable. All other smaller non-police users must be compelled to go through a professional process, such as the national anti-fraud network, rather than trying to do their own thing.

There is one issue which Mr Anderson has not picked up, and that is the ability rapidly to amend the law for new technological advances. Some may say that a new RIPA should be future-proof and encompass everything. I say no, absolutely not, not unless it is so widely written that it would lack transparency, like Clause 1 of the original flawed Bill. Our Joint Committee recommended—and I recommend it here—the creation of a new technical sub-committee working under the new ISIC. I should point out that our Joint Select Committee report said:

“Consideration should be given to a new unified Surveillance Commission reporting to parliament with multi-skilled investigators and human rights and computer experts.”

So thank you, Mr Anderson. We are again not just on the same page but are singing the same tune.

The ISIC role, as defined by Mr Anderson, does not focus on emerging technology. We need a sub-committee which can act quickly and recommend to ISIC that a new process, software or gizmo needs to be added to the Act. Then ISIC would recommend to the Home Secretary that an urgent amendment should be made. Then we need the second part of the solution: fast parliamentary approval using the parliamentary super-affirmative procedure, which exists, but is hardly used, and which we recommended in our report.

Finally, we really have to dump all the other hundreds of authorities which can access, even in a limited way, investigatory powers legislation. The Home Secretary rightly says that we need it to catch terrorists, paedophiles and serious criminals. The public will buy into that, but not when they hear that Slough council used it to catch people selling fake trainers or Cambridgeshire County Council used it to catch fraudsters, which is in the Anderson report. We all know that these ancillary organisations have only very limited access to subscriber data, but it prejudices the public against communications data per se. If the crimes are so serious, as in the case studies quoted by Anderson, why in the name of goodness is trading standards dealing with them? They should have been handed over to the police or the National Crime Agency to prosecute. We cannot have vital powers required by the police, security and state agencies tainted because far less important agencies are in the loop as well.

I look forward to seeing the new draft communications data Bill. We need to see it quickly and to pursue it in draft form quickly. Then we can move forward to a proper Bill. If it adopts the recommendations of Mr Anderson and the Joint Committee then it can never be called a snoopers’ charter and it will deserve parliamentary approval.