Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Consideration of Commons amendments
Wednesday 20th March 2024 Lords Chamber

[Lord Murray of Blidworth (Con)]

My Lords, I rise to answer one question posed by the noble Lord, Lord Carlile. He asked your Lordships to ponder the position of the Rwandan Parliament and said that we must not second guess what it may do. What he forgot to mention is that Rwanda has a monist system, so a treaty entered into by the Government of Rwanda is capable of being relied upon in their domestic courts. As I previously informed the House, the Chamber of Deputies of Rwanda has ratified the treaty, and we now learn from my noble and learned friend the Minister that the Senate of Rwanda has also ratified it. The only matter that remains is for the president to agree the ratification and when that happens, the safeguards in the treaty will apply.

[Lord Carlile of Berriew (CB)]

I am grateful to the noble Lord for giving way, but does his reference to the monist system and the guarantee that it goes through the courts not mean that there is no separation of powers between the political and judicial elements of Rwanda?

[Lord Murray of Blidworth (Con)]

No, that is simply not the case at all. What the noble Lord appears to suggest is that there is a confusion in the Rwandan constitution; I do not see that at all. The point is that they have agreed that treaties will have a kind of direct effect in domestic courts and once ratified, that is indeed the case. The concern by which he sought to encourage noble Lords to support the Motion before us today is, I suggest, simply not on a secure foundation.

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

My Lords, with the leave of the House, I will speak also to Motions F and G.

Motion B deals with the retrospective application of the duty to make arrangements for removal. We have reflected on the arguments put forward on this issue by the noble Lord, Lord Carlile, on Report. We have brought forward Amendments 22A and 22Q in lieu. Noble Lords will recall that the Lords amendments sought to move the operative date of the Clause 2 duty from 7 March this year to the date of that clause’s commencement. We believe that such a change carries a significant risk of there being a surge in channel crossings—a fire sale, if you will—as we approach the commencement date. To guard against this, the amendments in lieu instead provide for the duty to remove to apply to a person who enters the United Kingdom unlawfully from the date of this Bill’s Royal Assent.

We will keep this under review ahead of the Bill’s implementation, as we have included a reserve power to change the new operative date by regulations. This could, for example, enable us to focus the initial implementation of the Bill on those who arrived here illegally via small boats rather than by other means. I should stress that the 7 March date will continue to apply for the purpose of the power conferred on the Secretary of State to provide accommodation for unaccompanied children and for the purpose of the ban on re-entry, settlement and citizenship. I trust that this compromise approach will meet with the approval of the noble Lord, Lord Carlile.

Motion F relates to Lords Amendment 9, moved on Report by the noble Lord, Lord German. This relates to the issue of the inadmissibility of asylum and human rights claims within the UK system. It remains the Government’s contention that declaring such claims to be admissible is a core part of the scheme provided for in the Bill. The Court of Appeal unanimously confirmed that removing asylum seekers to a safe country for their asylum claims to be processed is entirely consistent with the refugee convention, including Article 31—a point that I mentioned a moment ago. This amendment would simply encourage people to game the system, drawing things out in an attempt to reach a six-month cut-off date. This amendment was rejected by the Commons by a strong majority of 76. Given that, I hope that the noble Lord, Lord German, will be content to agree to Motion F.

Finally, Motion G relates to Lords Amendment 23, put forward by the noble and learned Lord, Lord Etherton. The United Kingdom is a stout defender of LGBT communities across the globe. Our commitment to this cause remains unwavering. So, although I understand and sympathise with the noble and learned Lord’s desire to protect LGBT people who would face persecution were they to be sent to one of the countries listed in the amendment, I remain strongly of the view that the amendment is unnecessary as the Bill already delivers the protections that he seeks.

We are committed to the principle of non-refoulement, as a Jamaican national who makes a protection claim will not be returned to Jamaica. Were they to be fearful of being at real risk of suffering serious and irreversible harm, and were they to be removed to a specified third country, they would be able to make a serious harm suspensive claim. As I have previously indicated, in considering such a claim, the principles enunciated by the Supreme Court in the case of HJ (Iran) would be applied such that if the open expression of a person’s sexual orientation would prevent them from living in the specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim.

I hope the noble and learned Lord has been able to reflect on my assurances and on the outcome of the vote yesterday in the other place, and that he now feels able to support Motion G. I beg to move.

Motion B1 (as an amendment to Motion B)

[Lord Carlile of Berriew]

Moved by

At end insert “, and do propose Amendment 22R as an amendment to Amendment 22B—

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Report stage
Monday 3rd July 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

My noble friend is right, in that it is one of the Hardial Singh principles that, if there is no reasonable prospect of removal, that person should not be detained. But I cannot agree with him that the policy of deterrence is not right, because it is clearly the Government’s intention to remove any illegal entrants to a safe third country. In answer to the noble Lord, Lord Carlile, I add that the Court of Appeal unanimously agreed with that being lawful as a matter of principle.

We recognise that circumstances can change. Where that is the case, detention must be reviewed. If it is considered that the anticipated period of detention is not reasonably necessary, the individual will be bailed. This reflects the existing legal and policy position on the use of detention.

It remains the Government’s view that the provisions in Clause 11 provide an appropriate balance between the respective roles of the Home Secretary and the courts. Accordingly, I ask the noble Lord to withdraw his amendment.

[Lord Carlile of Berriew (CB)]

My Lords, I express my gratitude to the noble Viscount and others who have spoken on the Bill, including the noble Lord, Lord German. I now come to this place for my daily dose of disappointment. It seems to me that the Minister is deliberately missing the point. He cannot be failing to see it, and I very much regret having to say that.

Who do noble Lords trust to make these decisions: a Minister or the courts? I will tell them something about the latter, in case they have never seen any of these cases in court. Judges sit day after day in the Administrative Court, hearing case after case involving asylum and refugees, and they make decision after decision about whether a period of detention is too long, too robust or unreasonable in some other way. They have built up a corpus of law which has become reliable and admired not just in this place but throughout our jurisdiction and the common law world.

Make your choice. I am going to test the opinion of the House.

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

As the noble Lord will recall, during our exchange I made clear that not all of those 16 agreements are in the public domain, so I am not going to provide him with the list he seeks.

[Lord Carlile of Berriew (CB)]

My Lords, I am very disappointed at the Minister’s response, for two reasons. First, despite being asked to produce evidence to show that retrospectivity has some factual basis for its inclusion, he has failed to answer that challenge, and he must have done so deliberately. I am afraid that leads me to be very suspicious about whether there is any such evidence whatever of a credible nature.

The second reason I am very disappointed in the Minister is that he knows perfectly well that it would be open to him to suggest a date other than the date of the commencement of the Act: for example, the day when this Bill does pass, which could be within days, or even today. That would, of course, be an element of retrospectivity, but it would be a considerable mitigation of what is provided in the Bill.

Given that discussions have taken place on these issues, I am very surprised that he has simply remained his intransigent self on this issue. The notion that a glut of small boats will be crossing the channel if the period between March and, say, now is not the subject of retrospectivity, is, frankly, absurd, ridiculous and completely lacking in any kind of credibility. I ask him to think about that; I am perfectly prepared not to press the amendment if he stands up and says he is prepared to consider that issue seriously and enter into discussions with other Ministers. Otherwise, I will test the opinion of the House.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

The NRM process requires the gathering of evidence and input from the party, so it is not down entirely to Home Office resourcing issues.

The appointment of the new Independent Anti-Slavery Commissioner is at an advanced stage, and I am sure that once appointed they will want to monitor closely the impact of these provisions.

In relation to my noble friend’s amendments, I repeat the assurance that my right honourable friend the Immigration Minister made in the other place: namely that we will consider additional protections through statutory guidance for those who have experienced exploitation in the United Kingdom. We are continuing to develop such guidance and in doing so will adopt an appropriate balance between protecting victims of modern slavery and delivering the intent of this Bill.

As regards Amendment 103, the noble Lord, Lord Morrow, quite properly raises the issue of how the modern slavery provisions in the Bill sit with the continued operation of the relevant EU directives in Northern Ireland. As I have said in earlier debates in Committee, the provisions in the Bill are compatible with the Windsor Framework. In particular, in the context of this amendment we do not consider that the 2011 anti-trafficking directive falls within the scope of Article 2 of the Windsor Framework.

Amendments 96, 102 and 105, tabled respectively by the noble Lord, Lord Carlile, the noble Baroness, Lady Bryan, and the noble Lord, Lord Morrow, relate to the presumption that it is not necessary for a person to remain in the United Kingdom to co-operate with an investigation. As I outlined to the Committee, remote participation is now the norm in the workplace, and the criminal justice system is no different. It is simply no longer the case that a victim of crime needs to be in face-to-face contact with the police or others to assist with an investigation. In some cases, victims may even feel safer providing virtual or video-recorded evidence. I assure noble Lords that we are working to ensure that the relevant technology, interpreters and intermediaries are available where needed.

We have provided for statutory guidance to support decision-making by caseworkers when determining if there are compelling circumstances why the presumption should be set aside in a particular case, but there is no evidence as to why, in the majority of cases, such co-operation cannot continue by email, messaging and video conferencing. The presumption in Clauses 21(5), 23(5) and 24(5) is therefore perfectly proper and should be retained.

[Lord Carlile of Berriew (CB)]

My Lords, I would be really grateful if the Minister could answer the question I asked him as to whether the Director of Public Prosecutions had been consulted about the effect on modern slavery and trafficking cases if the victim was not merely in another studio in another building in London or Manchester but in a country thousands of miles away, with no facilities to encourage or even compel them to give evidence.

[Lord Murray of Blidworth (Con)]

I do not know whether the DPP has been consulted on that point but I will certainly find out and write to the noble Lord.

Amendment 112, put forward by the noble and learned Baroness, Lady Butler-Sloss, would prevent the public order disqualification provided for in the 2022 Act being applied to a person whose positive reasonable grounds decision was based on exploitation which had occurred before they were 18. It is, in our view, entirely appropriate for the public order disqualification provided for in that Act to be capable of applying to all relevant individuals, including those exploited as children. In this regard, it is important to note that the public order disqualification in the 2022 Act applies only to specified persons, such as those who have been convicted of a serious criminal offence. In such cases, the age at which the exploitation took place is, I submit, irrelevant to the threat to public order an individual now poses, and we cannot tie our hands on this matter on the basis of the time at which exploitation took place.

The modern slavery measures in the Bill, alongside the others, are intended to deal with the immediate and pressing public risk arising from the exceptional circumstances relating to illegal entry into the UK. We need to take bold action and now. This Bill will not achieve its objective if removals are put on hold for over 500 days awaiting a conclusive grounds decision. As I indicated at the start, these amendments will quite simply wreck the Bill. I hope therefore that the noble Lord, Lord Hunt, will be content to withdraw his Amendment 12. If he is not, I invite the House to reject it.

Illegal Migration Bill: Economic Impact Assessment

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Tuesday 27th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I do not accept the premise of the noble Lord’s question, if that is what it was. The impact assessment published yesterday supports the need for change, sets out the broad costs of implementing the Bill, outlines potential savings, and highlights examples of where policy and operations have delivered an impact on illegal migration in other countries. For example, it shows that, for every illegal migrant deterred from making these crossings, the Bill will save the taxpayer £106,000, rising to £165,000 if current trends in accommodation costs continue.

[Lord Carlile of Berriew (CB)]

My Lords, can the Minister advise the House as to what weight should be given to this financial and legal impact assessment alongside the damage caused to the consistency of our domestic law and the terrible damage being done to our reputation as a keeper of international treaties?

[Lord Murray of Blidworth (Con)]

As I made clear during its earlier stages, the Bill introduces a new legal regime, and it is the Government’s view that it is consistent with our international obligations, which we always strive to meet. It is right that the facts in this impact assessment, and in the overall assessment of the situation made by the Government, are in favour of this legislation.

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

The Minister is making a very bold proposition when he says that Article 30 gives the Government an excuse to ignore ECAT. Can he give us examples of public order events which justify that bold, and in my view unjustifiable, statement?

[Lord Murray of Blidworth (Con)]

It was Article 13(3). The events which the Government say warrant the grounds of public order which prevent observance of the 30-day reflection and recovery period are the conditions which I identified earlier in relation to the pressure placed on public services and the threat to life arising from the dangerous channel crossings.

I do not propose to address all the amendments individually, suffice to say that where the Secretary of State is satisfied that an individual is participating in an investigation or criminal proceedings relating to their alleged exploitation, and considers it necessary for them to be present in the UK to provide that co-operation, and considers that their co-operation outweighs any significant risk of harm to the public they may pose, that individual will be exempt from the disqualification. This allows the Government to protect against the threat to public order arising from the current circumstances relating to illegal entry into the UK, while also ensuring that investigations can be progressed to bring perpetrators to justice. By one means or another, the amendments seek to negate, or at least roll back, the intended effect of the provisions in Clause 21 and subsequent clauses.

--- Later in debate ---

[Lord Carlile of Berriew (CB)]

Before the Minister sits down, will he do the usual thing, which is to answer reasonable questions that were asked of him, particularly the question I asked about the due diligence carried out in preparation of Schedule 1 and how advice was obtained as to whether it was right to put almost entirely unqualified entries into that schedule?

[Lord Murray of Blidworth (Con)]

I had in mind the sage words of the noble Baroness, Lady Smith, in the House last week. As the noble Lord will recall, the origins of Schedule 1 were canvassed at length by the Committee in the previous group. The countries listed in the schedule are an amalgam of previous pieces of legislation where the safety of those countries has been established in that legislation.

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

Certain things will happen when the Bill goes through; the system described within it will take effect. I assure the noble Lord that this is something that the Home Office expects to happen—that is, that returns will be effected in accordance with the duty imposed on the Secretary of State.

[Lord Carlile of Berriew (CB)]

If the impact assessment is to be provided in a timely way—or if not—will the Minister ensure that it contains an estimate or assessment of the number of people who would have been granted asylum but will not be because they are excluded as a result of the blanket effects of the Bill?

[Lord Murray of Blidworth (Con)]

It is not for me to dictate what is in the impact assessment. The department will provide the impact assessment in due course—

[Lord Carlile of Berriew (CB)]

My Lords—

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I will come back to the noble Lords in due course, but I need to make progress.

The broken asylum system costs the UK £3 billion a year, and that is rising. There seems to be an impression that, without the Bill, those costs will not continue to rise at an alarming rate year on year. Doing nothing is not an option.

In conclusion, I agree with the noble Lord that returns agreements have a place, and we will seek to negotiate these where appropriate. By their nature, any such negotiations involve two parties. The UK cannot compel other countries to enter into such agreements; they are a two-way process. Moreover, it will not enhance such negotiations to require their status to be set out in a three-monthly report to be laid before Parliament.

[Lord Carlile of Berriew (CB)]

My Lords—

[Lord Murray of Blidworth (Con)]

I ask the noble Lord to bear with me for a moment.

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I will certainly place a copy in the Library of the House. I hope that suffices. I am sure that my private office can work out who is here and is participating.

[Lord Carlile of Berriew (CB)]

Before the noble Lord stands up again, I feel I should bring this debate to a close. I am grateful to all noble Lords who have spoken in this debate, particularly those who supported the amendments in my name. A number of other very interesting issues have been raised. I have no doubt that we will be returning to a number of them on Report; I certainly will.

The reasons given by the Minister for what he recognises is the exceptional course of retrospectivity—I am using his words—involved conjecture: a conjecture that a very small change in the numbers, for whatever reason, of people coming on boats shows that the retrospectivity is working. I have been a Silk for 39 years. Along with the noble Lord, Lord Paddick, we have probably met more criminals than the rest of this Committee added together. My observation would be a rather less naive one than that made by the Minister. Criminals are infinitely adaptable. If the Government think that the boats are being stopped, it is not evidence that fewer people are coming into this country, because there are different ways and means of doing it.

From what we have heard today—maybe on Report we will hear something different—I really believe that the case for exceptionality is far from proved. I take the view, therefore, that we will have to come back to these subjects. I urge the Government to meet noble Lords who have spoken in these debates before Report so that we can see whether there is some common ground we can find that will make this a better Bill rather than a battleground in your Lordships’ House. For the time being, I beg leave to withdraw Amendment 6.

Illegal Migration Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I am very grateful to the noble Baroness. I was indeed about to mention her in my next sentence. Let me address that point and repeat what I said earlier. The phrase “illegal migration” in the Short Title of the Bill refers to the fact that the act of entering otherwise than in accordance with immigration controls was criminalised by an Act passed by this House and the other place in 2022. That is why it is correct to describe such people as “illegal migrants”—because they did not enter in accordance with immigration controls. That is the long and the short of it. The interpretation of Article 31 is irrelevant as regards that point of certainty.

I turn now to Amendment 2, tabled by the noble Baroness, Lady Ludford. This amendment seeks to strike out subsection (5), which disapplies Section 3 of the Human Rights Act 1998. The disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than the strained interpretations imposed by the courts to achieve compatibility with convention rights. As my noble and learned friend Lord Wolfson, King’s Counsel, pointed out, Section 3 is an unusual provision in UK law and there is, in principle, no reason why it cannot be excluded in cases like this.

It is our view that Parliament and the Government are better suited to address the sensitive policy issues involved in this legislation. It is therefore only right that Section 3, which requires the court to interpret the provisions to achieve compatibility with convention rights, must be disapplied so that courts interpret the law in accordance with the purpose of the Bill. Through this, we are ensuring that the balance between our domestic institutions is right and that Parliament’s intent is clear to the courts.

As the noble and learned Lord, Lord Hope, explained, Amendment 3 flows from the recent report of the Constitution Committee. I am very grateful to that committee for its scrutiny of the Bill. We are studying its report carefully and will respond in full ahead of Report. As for the genesis of the amendment, the noble and learned Lord explained that the Constitution Committee considered that more explanation was needed around the Section 19(1)(b) statement that I made on the introduction of the Bill in this House.

Notwithstanding that the noble Lord, Lord Kerr, quoted from my Second Reading speech on this issue, I reiterate the point I made at that stage: a Section 19(1)(b) statement means not that the provisions of the Bill are incompatible with the convention rights, only that we cannot be certain that they are compatible. The assertion suggested by the noble Lord, Lord Coaker, in his speech a moment ago, that the statement amounts to a concession that measures in the Bill are incompatible, is not the case. The purpose of Section 19, as my noble friend Lord Wolfson set out, is that it is a statement that the provisions of the Bill are incompatible with convention rights and we cannot be certain that they are compatible. It is of course a measure in a piece of legislation passed by the last Labour Government and therefore something that the noble Lord, Lord Coaker, would no doubt place great weight on. Those are the terms that we find in Section 19 of the Human Rights Act.

[Lord Carlile of Berriew (CB)]

Does the Minister not think that it might at least be a courtesy to the Committee to set out which of the provisions, in his view and that of the Home Secretary, are or are not compatible with the convention? That would help us to determine the quality of the legislation that is proposed.

[Lord Murray of Blidworth (Con)]

I will come to address the issues of the broad applicability of the Section 19(1)(b) statement. There is no requirement in the Act for a statement to identify any particular section. Indeed, I do not want to wade into the waters that were nearly ventured into during the interventions on my noble friend Lord Wolfson’s speech about whether the Section 19(1)(b) statement in relation to the Communications Bill, as it then was, was in accordance with the statute.

In any event, I return to the principle of Section 19(1)(b) statements. It is right to say that they have been made by Governments of all stripes, not least in the Communications Bill, as we heard earlier in the debate, but also by the coalition Government and by Nick Clegg in the House of Lords Reform Bill 2012. As my noble friend Lord Wolfson rightly indicated, issuing a Section 19(1)(b) statement is a legitimate choice given to Ministers under the Human Rights Act. Why else would the Act provide for such a course?

As I have said, previous Governments have issued such statements, and clearly that has not caused our international reputation to collapse. More broadly, I encourage the Committee to approach questions of international reputation with a proper perspective. The world can be in no doubt that we are defenders of rights and liberty, the most obvious example being our leading support for Ukraine.

Requiring guidance to be approved by Parliament on how the Bill’s provisions are to be interpreted within the meaning of the Human Rights Act is unnecessary. On 7 March the Government published a memorandum addressing issues arising under the ECHR, and a supplementary memorandum was published in April in relation to the government amendments tabled for Report in the Commons. These memoranda set out a provision-by-provision ECHR analysis, so I submit that the Government’s position is clear, and the noble Lord, Lord Carlile, will find the answers to his questions about what sits behind the Section 19(1)(b) statement in those memoranda.

It will undoubtedly be necessary to provide Home Office staff, immigration officers and others with appropriate guidance to support the implementation of the Bill. It would not be appropriate for such routine operational guidance on the implementation of a particular Act to be subject to parliamentary approval.

Migrants: Housing

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Wednesday 3rd May 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

The noble Lord well knows that it is not the Government’s practice to share working policy assumptions in relation to these issues. As I said, the effect of the Bill will be to deliver a deterrent effect; fewer people will cross the channel and therefore fewer people will need to be detained.

[Lord Carlile of Berriew (CB)]

My Lords, will the Minister give a clear undertaking to this House, without any equivocation, that all measures for dealing with asylum seekers and refugees will be in compliance with current UK law and current UK international treaty obligations?

[Lord Murray of Blidworth (Con)]

The Government will always obey the domestic law.

National Security Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Report stage
Wednesday 1st March 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

As I hope I have already made clear, it is only Clause 4 that applies. Clause 6 does not apply in this context.

[Lord Carlile of Berriew (CB)]

My Lords, I am afraid I am very puzzled as a result of the Minister’s reply.

First, I think he was suggesting that the Government of Cyprus had been fully consulted. If he was suggesting that, all I can say is that that is the opposite of what I was told, and what the noble Lords, Lord Purvis, Lord Wallace and Lord Anderson, and everybody else who has been spoken to has been told. Secondly, why did the Government change Clause 97? Clause 97 provides for the powers earlier in the Bill to be operated within the SBA following an Order in Council. Are the Government saying that the justice provisions in the SBA are inadequate in some way? I can tell your Lordships that those of us who live around the legal profession know an awful lot of people who go and do cases and even sit as judges in those places, and that is not what they have found on the whole.

I would suggest that the Minister’s reply was insensitive—if I can be forgiven for using that word—and injudicious, and I invite the Government to consider it between now and the coming into law of this Bill. I am not going to press this to a Division tonight; I am not going to ask for the opinion of the House. But I feel a strong sense of dissatisfaction at the explanation, such as it is, that has been given. I beg leave to withdraw the amendment.

National Security Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Committee stage
Wednesday 18th January 2023 Lords Chamber

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

My Lords, Clause 77 allows the Secretary of State to make regulations about the publication and sharing of information provided through the foreign influence registration scheme. Amendment 105 clarifies that power at Clause 77(1)(b) and provides for the Secretary of State to make regulations about the onward disclosure of information registered or provided under the foreign influence registration scheme. The amended provision will enable the Secretary of State to provide clarity in respect of what data can be lawfully shared where necessary. I therefore ask the Committee to support this amendment. I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, we are being asked to approve something that relates to regulations that we have not seen, and we would ask the Government to review the way in which they are approaching the passage of this part of the Bill. We need to see not just draft practice or draft regulations but the regulations themselves.

The way in which this part of the Bill has been generated—and I do not want to repeat a discussion that we had two days ago—means that there is a great deal of uncertainty about what is intended. I hope that the flexibility that was indicated by Ministers on Monday will be extended to how such information is disseminated. I hope that we will get an undertaking that, before Report, and not on the day that Report begins, we will see the regulations and other documents that will indicate the architecture and detail of whatever parts of FIRS are going to be retained.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

At the moment I fear I cannot commit to providing draft regulations. It may be that there are some, but it may be that to draft regulations prior to Report would be too time-consuming.

[Lord Carlile of Berriew (CB)]

I am sorry to intervene again, but does the Minister not see that this is illustrating the whole mistake in producing important legislation arising from amendments made in Committee in the House of Commons? If this part of the Bill had been drafted in the normal way, by parliamentary counsel with time to develop it and to consult, it would have been perfectly simple to produce draft regulations in time for Report in the House of Lords, which is nearly at the end of the legislative process. Is this not really just a guilty plea to having had insufficient time to prepare a Bill that came to this House based on an idea which was not even government policy?

[Lord Murray of Blidworth (Con)]

I note the noble Lord’s views on the topic, but we are where we are. Obviously, the department will take away what he says and endeavour to meet his reasonable request.

National Security Bill

Debate between Lord Carlile of Berriew and Lord Murray of Blidworth

Committee stage
Monday 16th January 2023 Lords Chamber

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

My Lords, I will first address Amendments 77, 78 and 79. These amendments would create a requirement on the Secretary of State to receive confirmation from the police that there is no realistic chance of prosecuting an individual before imposing a state threats prevention and investigation measure—an STPIM—on an individual under Part 2. It is our view that the current drafting would already achieve that aim. STPIMs are a tool of last resort in cases where prosecution is not possible. It is always the Government’s preference and priority to seek a prosecution against those engaged in foreign power threat activity, and where we can prosecute, we will.

Clause 44 reflects our commitment to prosecution and requires prior consultation with the police, before the imposition of a STPIM notice, in relation to

“whether there is evidence available that could realistically be used for the purposes of prosecuting the individual for an offence”

relating to state threats. The police must consult the relevant prosecuting authority before responding to the Secretary of State. The requirement to consult mirrors that in terrorism prevention and investigation measures—TPIMs—to which the noble Baroness, Lady Ludford, referred. Our experience of the TPIM regime is that, wherever it is apparent in the consultation that there is evidence available that means that a prosecution is feasible, such a prosecution is pursued over the imposition of a TPIM. We expect the same principle to apply in the STPIM context. I hope that that addresses some of the points raised by the noble Lord, Lord Coaker.

Furthermore, as set out in Clause 44(5), while an STPIM is in force, the police must ensure that the investigation of the relevant individual’s conduct is kept under review, consulting the prosecuting authority with a view to pursuing a prosecution if possible. Consultation is all about exploring whether there is available evidence that could realistically be used to prosecute an individual. However, the proposed amendments require the police to confirm that there is no available evidence. Changing the threshold in that way would mean that, in the event that there is limited evidence, but not enough feasibly to prosecute, we would limit our ability to use the STPIM as an alternative measure to protect the UK against individuals involved in state threats activity.

Although I understand the concerns raised by the noble Baroness, Lady Ludford, the consultation is meaningful. In each case where an STPIM is in force, the prospect of prosecuting that individual will be kept under review by the police, consulting the prosecuting authorities as necessary. The outcome of that review will be reported by the police to the Home Secretary, in accordance with their statutory duty. In some sense, that answers the point about oversight raised by the noble Lord, Lord Coaker. Where a prosecution is possible, that will be the action undertaken, rather than the imposition of an STPIM. As I have said already, if we can prosecute, we will.

I turn now to Amendment 76, which seeks to place a maximum limit of 14 hours on the number of hours an individual can be required by the Secretary of State to remain in their residence under the residence measure. It is important to note that, in each STPIM case, the facts will be different, and the specific measures will be decided on a case-by-case basis. Flexibility is therefore key to ensure that the most appropriate suite of measures can be imposed. Protection against interference with the rights of individuals under Article 5 of the European convention, as was referred to by the noble Baroness, is already provided for under the residence measure. Condition D, which must be met to impose an STPIM, outlines that the Secretary of State must reasonably consider that the individual measures applied are necessary to prevent or restrict the individual’s involvement in foreign power threat activity. That covers not just the imposition of the measure but the exact terms of the measure. In the case of the residence measure, that would include the number of hours an individual must reside in their residence. I hope I have therefore addressed the point raised by the noble Lord, Lord Coaker, in relation to the time requirement.

In addition, the court must agree at both the permission hearing and the review hearing to the number of hours, set by the Secretary of State, that the individual must remain in their residence—thus providing a good measure of accountability for the number of hours provided for in the order. The number of hours a person must stay at home will therefore be determined by the facts of the individual case. It is also worth noting that the individual subject to a notice has the right to apply for a variation of measures imposed both in the short term—for example, if there is a reason why they need to be out at different times on a particular day—and generally in the long term.

The noble Lord, Lord Coaker, asked who would oversee the imposition of the measures in this regime. Under Clause 54, there will be an independent reviewer of STPIMs, in the same way that there is a reviewer for TPIMs under the other terrorism legislation.

On whether the individual will know what they are accused of doing, they will have access to special advocates who will be able to access the sensitive information in a manner similar to that for TPIMs. The special advocates will have access to the sensitive information that builds the case against the individual and justifies the measure. There will also be a duty on the Government to share the information, as far as reasonably possible, with the individual themselves. With all these points in mind, the Government cannot accept these amendments and I invite the noble Baroness to withdraw Amendment 76.

[Lord Carlile of Berriew (CB)]

Can the Minister help the Committee by giving us an estimate of the scale of the problem? Do the Government expect a number of STPIMs which is roughly the same as the number of TPIMs in existence at present or do they expect more than or fewer than a handful? An assessment must have been made of these numbers.

[Lord Murray of Blidworth (Con)]

I am afraid I do not have that information to hand. My conjecture would be that it is fewer, but I will confirm the position and write to the noble Lord.