National Security Bill

Lord Clement-Jones Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I apologise for popping up at this point, not having taken part in the debates so far, but I was requested to do so by the British Academy, the UK’s national academy of humanities and social sciences, of which I am proud to be a fellow. I am also an academic who has in the past collaborated with colleagues from outside the UK in the area of social policy, which of course is trying to influence government.

I am sure I do not need to spell out the importance of international research collaboration, which was touched on by my noble friend Lord Stansgate, especially in the wake of the Science Minister’s speech last week which emphasised the importance of the Government’s global science strategy. Any such strategy requires international collaboration. The British Academy accepts that mechanisms to prevent foreign interference are necessary, but such mechanisms must safeguard the benefits of international research and protect academic freedom. It is worth just noting here what the Joint Committee on Human Rights had to say. It was concerned that this was introduced at such a late stage of the Bill’s passage that it could not comment properly on it, but it said:

“Any foreign influence registration scheme must contain adequate protections to ensure that it does not interfere unduly with democratic rights, including freedom of association and free speech.”


I think everything we have heard so today, other than from the Minister, suggests that it could interfere in that way.

Indeed, the British Academy argues that such mechanisms exist already and that FIRS would duplicate them in a way that creates totally unnecessary bureaucracy, which surely this Government, of all Governments, want to avoid. It is not helped by the lack of clarity in the wording, which was referred to by the noble Lord, Lord Wallace of Saltaire, with details left for secondary legislation. The effect, the British Academy argues, would be a significant negative impact on the ability of UK researchers to engage internationally, creating irreversible harm to the UK’s research and innovation standing. The academy is not prone to hyperbole.

As currently drafted, as we have heard, FIRS would entangle wide swathes of international activities and is likely to have a chilling effect on international collaboration, not just deterring those with malign intent—as referred to by the Minister—but probably having a much greater impact on those with utterly benign intent. I cannot believe for a moment that this is what the Government want, especially given that it would undermine their own aspirations to forge a global science strategy.

It is in the Government’s own interest to accept the British Academy’s recommendation that they withdraw Part 3—I think I am echoing what the noble Lord, Lord Carlile, said—and consult with it and other relevant organisations to cocreate a framework that is proportionate and reasonable, taking into account existing reporting and oversight mechanisms. The academy argues that research and innovation should be largely excluded from FIRS. Is this something that the Government are willing to consider? If not, why not? Will the Minister agree to take this away, have discussions with the British Academy and others and, ideally, withdraw Part 3 altogether as has been suggested or, at the very least, come up with something less harmful before Report? I am echoing other noble Lords in calling for a longer pause than currently envisaged. The more I have listened to today’s debate, the more horrified I have become at what this part of the Bill might mean.

[Lord Clement-Jones (LD)]

My Lords, I rise to speak to Amendment 103, and I declare my interests as set out in the register.

Like the noble Baronesses, Lady Noakes and Lady Lister, I am new to the Bill and have been provoked by briefings. Like others who have spoken today, I emphasise that I am absolutely no fan of this foreign influence registration scheme, which is far too broad in its application, as we have heard. I think it will be highly damaging to UK research and development, inward investment and British interests around the world. The noble Baroness, Lady Hayter, listed those who might get caught up in the scheme, and clearly very few of those have any connection at all with national security. I am delighted to support many amendments in this group and, in particular, the clause stand part notices that the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew, and my noble friend Lord Wallace have spoken to so cogently.

This has given us the opportunity to debate the flawed nature of the whole scheme. I will make some remarks about the impact on business and investment, which my noble friend Lord Fox would have made were he able to be here. We have heard powerful testimony from the British Academy, referred to by the noble Baroness, Lady Lister, and from the Russell group, referred to by the noble Viscount, Lord Stansgate, about the hugely detrimental potential impact of the Bill on the international research and development front. The British Academy rightly says that international collaboration is critical to the excellence of UK research and the Government’s aim to become a scientific and global science superpower. As it says, as currently drafted the FIRS will have a severely negative impact on the UK’s ability to engage with researchers internationally and on the ability of researchers in the humanities and social sciences to engage on critical public policy topics, and it will irrevocably harm the UK’s research and innovation standing. Strong words.

Under the scheme as currently proposed, at minimum, research universities will be smothered in red tape and, at worst, heavy criminal penalties in undertaking international research partnerships will be imposed. Bluntly, I must tell the Minister that his amendments add very little to the clarity of this scheme. The Minister’s letter about the intersection with the National Security and Investment Act, which we debated in 2021, was far from convincing. There is already a raft of other legislation relating to the academic technology approval scheme and export control, which impact on a university’s international activities. If this scheme, by mischance, does go through, it makes Amendment 104, in the name of my noble friend Lord Wallace, the absolute bare minimum needed. Both the Russell group and the British Academy make the case for clarity, non-duplication, proportionality and a high threshold for registration, none of which is currently present in the scheme.

A further cause for withdrawal of this scheme is the strong reaction from the business and investment community. That is why this stand part debate is so important. The ABI states very clearly that the current proposal for the FIRS

“risks placing significant reporting burden on insurers and long-term savings providers investing in the UK, with the potential to negatively impact the UK’s international competitiveness and attractiveness as a place to invest”.

TheCityUK says these proposals

“if passed unamended would have a chilling effect on inward investment into the UK”.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thought I was very clear on the precise specified persons tier here. A UK university would need to be acting at the direction of a specified foreign power or a specified foreign power-controlled entity before registration requirements could apply. I think that covers the set of circumstances just outlined by the noble Viscount.

[Lord Clement-Jones (LD)]

The Minister spoke about universities. Did he mean the academics—any academic within the universities?

[Lord Sharpe of Epsom (Con)]

Yes.

Amendment 103 was tabled by the noble Lord, Lord Clement-Jones, to remove the exemption from the registration requirement in FIRS for lawyers providing legal activities. While I welcome the challenge, removing this exemption would risk undermining long-standing protections the UK has afforded to the provision of confidential legal advice and the equitable administration of justice. The exemption is available only to lawyers carrying out legal activity and so would not apply to other individuals carrying out legal activity.

I also reiterate what was said in Committee in the other place: that this exemption does not completely exempt legal professionals from engaging with the scheme. It does not cover all the activities that could be undertaken by a legal professional as part of an arrangement with a foreign principal. Activities that are not strictly legal activities, such as lobbying, for example, may still need to be registered. So, for example, if a lawyer were to enter into an arrangement with a foreign power to lobby a UK government Minister or parliamentarian on the UK’s foreign policy towards that foreign power, that would be registrable. The fact that the individual is a lawyer is not sufficient in and of itself to exempt them from registration.

[Lord Clement-Jones (LD)]

I heard what the Minister said about lobbying and the additional aspect of lobbying by law firms, but why is any exemption needed beyond what is contained in Clause 74, which covers legal professional privilege effectively—legal proceedings and so on—so that no confidential information needs to be divulged? Why is it not necessary that a law firm is acting for a foreign power or an entity controlled by a foreign power? Why should that be exempt?

[Lord Sharpe of Epsom (Con)]

I think I explained this in reasonable detail. It goes back to the sort of work the lawyers carry out. As I say, it is the long-standing protections that the UK has afforded—

[Lord Clement-Jones (LD)]

All the Minister is saying, in a highly circular way, is that it is in here because it has always been in here in some other forms of legislation. I do not think that is much of an answer.

[Lord Sharpe of Epsom (Con)]

In that case, I am very sorry to disappoint the noble Lord. I apologise for having spoken at such length.

Technology Rules: The Advent of New Technologies in the Justice System (Justice and Home Affairs Committee Report)

Lord Clement-Jones Excerpts

Monday 28th November 2022 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow three such excellent opening speeches. I draw attention to my interests in the register, particularly my interest in artificial intelligence technologies as a former chair of the AI Select Committee of this House. As a non-member of her committee, I congratulate my noble friend Lady Hamwee and the committee on such a comprehensive and well-argued report.

I entirely understand and welcome the width of the report but today I shall focus on live facial recognition technology, a subject that I have raised many times in this House and elsewhere in Questions and debates, and even in a Private Member’s Bill, over the last five years. The previous debate involving a Home Office Minister—the predecessor of the noble Lord, Lord Sharpe, the noble Baroness, Lady Williams—was in April, on the new College of Policing guidance on live facial recognition.

On each occasion, I drew attention to why guidance or codes are regarded as insufficient by myself and many other organisations such as Liberty, Big Brother Watch, the Ada Lovelace Institute, the former Information Commissioner, current and former Biometrics and Surveillance Camera Commissioners and the Home Office’s own Biometrics and Forensics Ethics Group, not to mention the Commons Science and Technology Committee. On each occasion, I have raised the lack of a legal basis for the use of this technology—and on each occasion, government Ministers have denied that new explicit legislation or regulation is needed, as they have in the wholly inadequate response to this report.

In the successful appeal of Liberal Democrat Councillor Ed Bridges, the Court of Appeal case on the police use of live facial recognition issued in August 2020, the court ruled that South Wales Police’s use of such technology had not been in accordance with the law on several grounds, including in relation to certain human rights convention rights, data protection legislation and the public sector equality duty. So it was with considerable pleasure that I read the Justice and Home Affairs Committee report, which noted the complicated institutional landscape around the adoption of this kind of technology, emphasised the need for public trust and recommended a stronger legal framework with primary legislation embodying general principles supported by detailed regulation, a single national regulatory body, minimum scientific standards, and local or regional ethics committees put on a statutory basis.

Despite what paragraph 4 of the response says, neither House of Parliament has ever adequately considered or rigorously scrutinised automated facial recognition technology. We remain in the precarious position of police forces dictating the debate, taking it firmly out of the hands of elected parliamentarians and instead—as with the recent College of Policing guidance—marking their own homework. A range of studies have shown that facial recognition technology disproportionately misidentifies women and BAME people, meaning that people from those groups are more likely to be wrongly stopped and questioned by police, and to have their images retained as the result of a false match.

The response urges us to be more positive about the use of new technology, but the UK is now the most camera-surveilled country in the Western world. London remains the third most surveilled city in the world, with 73 surveillance cameras for every 1,000 people. The last Surveillance Camera Commissioner did a survey, shortly before stepping down, and found that there are over 6,000 systems and 80,000 cameras in operation in England and Wales across 183 local authorities. The ubiquity of surveillance cameras, which can be retrofitted with facial recognition software and fed into police databases, means that there is already an apparatus in place for large-scale intrusive surveillance, which could easily be augmented by the widespread adoption of facial recognition technology. Indeed, many surveillance cameras in the UK already have advanced capabilities such as biometric identification, behavioural analysis, anomaly detection, item/clothing recognition, vehicle recognition and profiling.

The breadth of public concern around this issue is growing clearer by the day. Many cities in the US have banned the use of facial recognition, while the European Parliament has called for a ban on the police use of facial recognition technology in public places and predictive policing. In 2020 Microsoft, IBM and Amazon announced that they would cease selling facial recognition technology to US law enforcement bodies.

Public trust is crucial. Sadly, the new Data Protection and Digital Information Bill does not help. As the Surveillance Camera Commissioner said last year, in a blog about the consultation leading up to it:

“This consultation ought to have provided a rare opportunity to pause and consider the real issues that we talk about when we talk about accountable police use of biometrics and surveillance, a chance to design a legal framework that is a planned response to identified requirements rather than a retrospective reaction to highlighted shortcomings, but it is an opportunity missed.”


Now we see that the role of Surveillance Camera Commissioner is to be abolished in the new data protection Bill—talk about shooting the messenger. The much-respected Ada Lovelace Institute has called, in its report Countermeasures and the associated Ryder review in June this year, for new primary legislation to govern the use of biometric technologies by both public and private actors, for a new oversight body and for a moratorium until comprehensive legislation is passed.

The Justice and Home Affairs Committee stopped short of recommending a moratorium on the use of LFR, but I agree with the institute that a moratorium is a vital first step. We need to put a stop to this unregulated invasion of our privacy and have a careful review, so that its use can be paused while a proper regulatory framework is put in place. Rather than update and use toothless codes of practice, as we are urged to do by the Government, to legitimise the use of new technologies such as live facial recognition, the UK should have a root-and-branch surveillance camera and biometrics review, which seeks to increase accountability and protect fundamental rights. The committee’s report is extremely authoritative in this respect. I hope today that the Government will listen but, so far, I am not filled with optimism about their approach to AI governance.

Public Spaces Protection Orders

Lord Clement-Jones Excerpts

Thursday 27th October 2022 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask His Majesty’s Government, further to reports that (1) at least 48 councils employ private companies to issue penalties for public spaces protection orders, and (2) many councils pay those companies per fine issued which incentivises companies to issue more penalties than may be necessary, what plans they have to introduce statutory guidance prohibiting this practice.

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

My Lords, it is for local authorities to determine how to operate the powers granted to them in legislation. Contracting enforcement to third parties is a common arrangement and it is for the local authority to ensure it is just. Contractors are bound by the same legal obligations and safeguards in legislation as the councils themselves.

[Lord Clement-Jones (LD)]

My Lords, that is a classic dusty reply from the Home Office. What a contrast with Defra: its guidance on littering, which is a criminal offence, says that incentivising enforcement undermines

“the legitimacy of the enforcement regime”.

Wherever it has occurred, fining for profit has been associated with cases of injustice and now Defra is putting that in statutory guidance. Why is the Home Office not going to do this in its own guidance on the Anti-social Behaviour, Crime and Policing Act?

[Lord Sharpe of Epsom (Con)]

My Lords, I think it is worth reminding the House about public space protection orders, which are intended to deal with a particular nuisance or problem, in a specific area, that is detrimental to the local community’s quality of life by imposing conditions on the use of that area which apply to everyone. So the Home Office did publish statutory guidance to support local areas to make effective use of these powers. The guidance sets out the importance of focusing of the needs of the victim and the local community, as well as ensuring that the relevant legal tests are met. I repeat that it is for local authorities to determine how to enforce PSPOs and that can include the use of private contractors. Local authorities are obliged to follow the rules set out in the Public Contract Regulations 2015 in their appointment of such companies.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

As I said earlier, the contracts that are awarded to these companies are governed by quite stringent guidance and rules. It is a matter for local authorities and the contracting companies.

[Lord Clement-Jones (LD)]

My Lords, if Defra is able to do this, why can the Home Office not do it? Defra is also very close to local government and clearly regards this as the wrong thing for local councils to be doing. Why does the Home Office not regard it as the wrong thing for councils to be doing?

[Lord Sharpe of Epsom (Con)]

Well, the noble Lord has already asked me that and I think I have already answered. The Home Office has provided statutory guidance to support local areas to make effective use of these powers. I go back to my earlier answer: the local areas are obliged to follow the rules set out in the Public Contracts Regulations 2015 before appointing such companies.

Queen’s Speech

Lord Clement-Jones Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I shall focus mainly on the Government’s digital proposals. As my noble friend Lady Bonham-Carter, the noble Baroness, Lady Merron, and many other noble Lords have made clear, the media Bill and Channel 4 privatisation will face fierce opposition all around this House. It could not be clearer that the policy towards both Channel 4 and the BBC follows some kind of red wall-driven, anti-woke government agenda that has zero logic. The Up Next White Paper on PSB talks of

“embedding the importance of distinctively British content directly into the existing quota system.”

How does the Minister define “distinctively British content”? Is it whatever the Secretary of State believes it is? As for the Government’s response to the consultation on audience protection standards on VOD services, can the Minister confirm that Ofcom will have the power to assess whether a platform’s own-brand age ratings genuinely take account of the values and expectations of UK families, as the BBFC’s do?

Having sat alongside the noble Lord, Lord Stevenson, on the joint scrutiny committee on the draft Online Safety Bill, I agreed with all his remarks today. I welcome the fact that its provisions are directed primarily at the business model of the social media platforms—in particular, the inclusion of scam advertising within the Bill and the inclusion of pornographic sites—but it is vital, if we are to have privacy protecting age verification, that principles for age assurance are included in the Bill. I welcome the intention to legislate for the new criminal communications offences recommended by the Law Commission, but without these being passed into law, the Bill will be completely defective, and we must incorporate the hate crime offences too.

But there are key issues that will need dealing with in the Bill’s passage through Parliament. As we have heard from many noble Lords, the “legal but harmful” provisions are potentially dangerous to freedom of expression, with those harms not being defined in the Bill itself. Similarly, with the lack of definition of children’s harms, it needs to be clear that encouraging self-harm or eating disorders is explicitly addressed on the face of the Bill, as my honourable friend Jamie Stone emphasised on Second Reading. My honourable friend Munira Wilson raised whether the metaverse was covered. Noble Lords may have watched the recent Channel 4 “Dispatches” exposing harms in the metaverse and chat rooms in particular. Without including it in the primary legislation, how can we be sure about this? In addition, the category definitions should be based more on risk than on reach, which would take account of cross-platform activity.

One of the great gaps not filled by the Bill, or the recent Elections Act just passed, is the whole area of misinformation and disinformation which gives rise to threats to our democracy. The Capitol riots of 6 January last year were a wake-up call, along with the danger of Donald Trump returning to Twitter.

The major question is why the draft digital markets, competition and consumer Bill is only a draft Bill in this Session. The DCMS Minister Chris Philp himself said in a letter to the noble Baroness, Lady Stowell—the Chair of the Communications and Digital Committee—dated just this 6 May, that

“urgent action in digital markets is needed to address the dominance of a small number of very powerful tech firms.”

In evidence to the BEIS Select Committee, the former chair of the CMA, the noble Lord, Lord Tyrie, recently stressed the importance of new powers to ensure expeditious execution and to impose interim measures.

Given the concerns shared widely within business about the potential impact on data adequacy with the EU, the idea of getting a Brexit dividend from major amendments to data protection through a data reform Bill is laughable. Maybe some clarification and simplification are needed—but not the wholesale changes canvassed in the Data: A New Direction consultation. Apart from digital ID standards, this is a far lower business priority than reforming competition regulation. A report by the New Economics Foundation made what it said was a “conservative estimate” that if the UK were to lose its adequacy status, it would increase business costs by at least £1.6 billion over the next 10 years. As the report’s author said, that is just the increased compliance costs and does not include estimates of the wider impacts around trade shifting, with UK businesses starting to lose EU customers. In particular, as regards issues relating to automated decision-making, citizens and consumers need more protection, not less.

As regards the Product Security and Telecommunications Infrastructure Bill, we see yet more changes to the Electronic Communications Code, all the result of the Government taking a piecemeal approach to broadband rollout. I do, however, welcome the provisions on security standards for connectable tech products.

Added to a massive programme of Bills, the DCMS has a number of other important issues to resolve: the AI governance White Paper; gambling reform, as mentioned by my noble friend Lord Foster; and much-needed input into IP and performers’ rights reform and protection where design and AI are concerned. I hope the Minister is up for a very long and strenuous haul. Have the Government not clearly bitten off more than the DCMS can chew?

Live Facial Recognition: Police Guidance

Lord Clement-Jones Excerpts

Monday 4th April 2022 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the new College of Policing guidance on live facial recognition.

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

My Lords, facial recognition is an important public safety tool that helps the police to identify and eliminate suspects more quickly and accurately. The Government welcome the College of Policing’s national guidance, which responds to a recommendation in the Bridges v South Wales Police judgment.

[Lord Clement-Jones (LD)]

My Lords, despite committing to a lawful, ethical approach, the guidance gives carte blanche to the use of live and retrospective facial recognition, potentially allowing innocent victims and witnesses to be swept on to police watch-lists. This is without any legislation or parliamentary or other oversight, such as that recently recommended by the Justice and Home Affairs Committee, chaired by my noble friend Lady Hamwee. Are we not now sleep-walking into a surveillance society, and is it not now time for a moratorium on this technology, pending a review?

[Baroness Williams of Trafford (Con)]

I disagree with everything that the noble Lord has said. I think every police force in the country uses retrospective facial recognition. Watch-lists are deleted upon use at a deployment, so there is no issue regarding ongoing data protection. Importantly, just as CCTV and retrospective recognition are still used to detect criminals, missing persons and vulnerable people, so is the application of LFR.

Surveillance Camera Code of Practice

Lord Clement-Jones Excerpts

Wednesday 2nd February 2022 Lords Chamber

Moved by

[Lord Clement-Jones]

That this House regrets the Surveillance Camera Code of Practice because (1) it does not constitute a legitimate legal or ethical framework for the police’s use of facial recognition technology, and (2) it is incompatible with human rights requirements surrounding such technology.

Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee

[Lord Clement-Jones (LD)]

My Lords, I have raised the subject of live facial recognition many times in this House and elsewhere, most recently last November, in connection with its deployment in schools. Following an incredibly brief consultation exercise, timed to coincide with the height of the summer holidays last year, the Government laid an updated Surveillance Camera Code of Practice, pursuant to the Protection of Freedoms Act 2012, before both Houses on 16 November last year, which came into effect on 12 January 2022.

The subject matter of this code is of great importance. The last Surveillance Camera Commissioner did a survey shortly before stepping down, and found that there are over 6,000 systems and 80,000 cameras in operation across 183 local authorities. The UK is now the most camera-surveilled country in the western world. According to recently published statistics, London remains the third most surveilled city in the world, with 73 surveillance cameras for every 1,000 people. We are also faced with a rising tide of the use of live facial recognition for surveillance purposes.

Let me briefly give a snapshot of the key arguments why this code is insufficient as a legitimate legal or ethical framework for the police’s use of facial recognition technology and is incompatible with human rights requirements surrounding such technology. The Home Office has explained that changes were made mainly to reflect developments since the code was first published, including changes introduced by legislation such as the Data Protection Act 2018 and those necessitated by the successful appeal of Councillor Ed Bridges in the Court of Appeal judgment on police use of live facial recognition issued in August 2020, which ruled that that South Wales Police’s use of AFR—automated facial recognition—had not in fact been in accordance with the law on several grounds, including in relation to certain convention rights, data protection legislation and the public sector equality duty.

During the fifth day in Committee on the Police, Crime, Sentencing and Courts Bill last November, the noble Baroness, Lady Williams of Trafford, the Minister, described those who know about the Bridges case as “geeks”. I am afraid that does not minimise its importance to those who want to see proper regulation of live facial recognition. In particular, the Court of Appeal held in Bridges that South Wales Police’s use of facial recognition constituted an unlawful breach of Article 8—the right to privacy—as it was not in accordance with law. Crucially, the Court of Appeal demanded that certain bare minimum safeguards were required for the question of lawfulness to even be considered.

The previous surveillance code of practice failed to provide such a basis. This, the updated version, still fails to meet the necessary standards, as the code allows wide discretion to individual police forces to develop their own policies in respect of facial recognition deployments, including the categories of people included on a watch-list and the criteria used to determine when to deploy. There are but four passing references to facial recognition in the code itself. This scant guidance cannot be considered a suitable regulatory framework for the use of facial recognition.

There is, in fact, no reference to facial recognition in the Protection of Freedoms Act 2012 itself or indeed in any other UK statute. There has been no proper democratic scrutiny over the code and there remains no explicit basis for the use of live facial recognition by police forces in the UK. The forthcoming College of Policing guidance will not satisfy that test either.

There are numerous other threats to human rights that the use of facial recognition technology poses. To the extent that it involves indiscriminately scanning, mapping and checking the identity of every person within the camera’s range—using their deeply sensitive biometric data—LFR is an enormous interference with the right to privacy under Article 8 of the ECHR. A “false match” occurs where someone is stopped following a facial recognition match but is not, in fact, the person included on the watch-list. In the event of a false match, a person attempting to go about their everyday life is subject to an invasive stop and may be required to show identification, account for themselves and even be searched under other police powers. These privacy concerns cannot be addressed by simply requiring the police to delete images captured of passers-by or by improving the accuracy of the technology.

The ECHR requires that any interference with the Article 10 right to freedom of expression or the Article 11 right to free association is in accordance with law and both necessary and proportionate. The use of facial recognition technology can be highly intimidating. If we know our faces are being scanned by police and that we are being monitored when using public spaces, we are more likely to change our behaviour and be influenced on where we go and who we choose to associate with.

Article 14 of the ECHR ensures that no one is denied their rights because of their gender, age, race, religion or beliefs, sexual orientation, disability or any other characteristic. Police use of facial recognition gives rise to two distinct discrimination issues: bias inherent in the technology itself and the use of the technology in a discriminatory way.

Liberty has raised concerns regarding the racial and socioeconomic dimensions of police trial deployments thus far—for example, at Notting Hill Carnival for two years running as well as twice in the London Borough of Newham. The disproportionate use of this technology in communities against which it “underperforms” —according to its proponent’s standards—is deeply concerning.

As regards inherent bias, a range of studies have shown facial recognition technology disproportionately misidentifies women and BAME people, meaning that people from these groups are more likely to be wrongly stopped and questioned by police and to have their images retained as the result of a false match.

The Court of Appeal determined that South Wales Police had failed to meet its public sector equality duty, which requires public bodies and others carrying out public functions to have due regard to the need to eliminate discrimination. The revised code not only fails to provide any practical guidance on the public sector equality duty but, given the inherent bias within facial recognition technology, it also fails to emphasise the rigorous analysis and testing required by the public sector equality duty.

The code itself does not cover anybody other than police and local authorities, in particular Transport for London, central government and private users where there have also been concerning developments in terms of their use of police data. For example, it was revealed that the Trafford Centre in Manchester scanned the faces of every visitor for a six-month period in 2018, using watch-lists provided by Greater Manchester Police—approximately 15 million people. LFR was also used at the privately owned but publicly accessible site around King’s Cross station. Both the Met and British Transport Police had provided images for their use, despite originally denying doing so.

It is clear from the current and potential future human rights impact of facial recognition that this technology has no place on our streets. In a recent opinion, the former Information Commissioner took the view that South Wales Police had not ensured that a fair balance had been struck between the strict necessity of the processing of sensitive data and the rights of individuals.

The breadth of public concern around this issue is growing clearer by the day. Several major cities in the US have banned the use of facial recognition and the European Parliament has called for a ban on police use of facial recognition technology in public places and predictive policing. In response to the Black Lives Matter uprisings in 2020, Microsoft, IBM and Amazon announced that they would cease selling facial recognition technology to US law enforcement bodies. Facebook, aka Meta, also recently announced that it will be shutting down its facial recognition system and deleting the “face prints” of more than a billion people after concerns were raised about the technology.

In summary, it is clear that the Surveillance Camera Code of Practice is an entirely unsuitable framework to address the serious rights risk posed by the use of live facial recognition in public spaces in the UK. As I said in November in the debate on facial recognition technology in schools, the expansion of such tools is a

“short cut to a widespread surveillance state.”—[Official Report, 4/11/21; col. 1404.]

Public trust is crucial. As the Biometrics and Surveillance Camera Commissioner said in a recent blog:

“What we talk about in the end, is how people will need to be able to have trust and confidence in the whole ecosystem of biometrics and surveillance”.


I have on previous occasions, not least through a Private Member’s Bill, called for a moratorium on the use of LFR. In July 2019, the House of Commons Science and Technology Committee published a report entitled The Work of the Biometrics Commissioner and the Forensic Science Regulator. It repeated a call made in an earlier 2018 report that

“automatic facial recognition should not be deployed until concerns over the technology’s effectiveness and potential bias have been fully resolved.”

The much-respected Ada Lovelace Institute has also called for a

“a voluntary moratorium by all those selling and using facial recognition technology”,

which would

“enable a more informed conversation with the public about limitations and appropriate safeguards.”

Rather than update toothless codes of practice to legitimise the use of new technologies like live facial recognition, the UK should have a root and branch surveillance camera review which seeks to increase accountability and protect fundamental rights. The review should investigate the novel rights impacts of these technologies, the scale of surveillance we live under and the regulations and interventions needed to uphold our rights.

We were reminded by the leader of the Opposition on Monday about what Margaret Thatcher said, and I also said this to the Minister earlier this week:

“The first duty of Government is to uphold the law. If it tries to bob and weave and duck around that duty when it’s inconvenient, if Government does that, then so will the governed and then nothing is safe—not home, not liberty, not life itself.”


It is as apposite for this debate as it was for that debate on the immigration data exemption. Is not the Home Office bobbing and weaving and ducking precisely as described by the late Lady Thatcher?

[Lord Alton of Liverpool (CB)]

My Lords, the noble Lord, Lord Clement-Jones, has given an eloquent exposition of the reasons for supporting his Motion of Regret. The Motion refers to the ethical and human rights considerations that attach to the use of surveillance camera technology, and it is to those two considerations that I shall address my remarks. I especially draw the Minister’s attention to the Amnesty International report of 3 June 2021 about the use of surveillance technology in New York, to which the noble Lord referred, and also to the serious civil liberty questions that that report raised. Concerns were raised in Japan on 28 December, in Yomiuri Shimbun, and in the Financial Times on 10 June, about Chinese technology in Belgrade, and on the Asia News Monitor in November 2021 in a report from Thailand about mass surveillance against Uighurs in Xinjiang, as well as a report in the Telegraph of 1 December, in which the head of MI6, Richard Moore, said that

“technologies of control … are increasingly being exported to other governments by China—expanding the web of authoritarian control around the planet”.

It is not just control—it is also a keystone in the export of truly shocking crimes against humanity and even genocide. Just a week ago, we marked Holocaust Memorial Day, on which many colleagues from across the House signed the Holocaust Memorial Day book or issued statements recommitting to never allowing such a genocide to happen ever again. Yet, sadly, in 2022, as the Foreign Secretary has said, a genocide against the Uighur Muslims is taking place in Xinjiang. As I argued in our debate on Monday, we are doing far too little to sanction those companies that are actively involved, or to regulate and restrict the facial recognition software that has allowed the Chinese state to incarcerate and enslave more than a million Uighurs.

In the 1940s, we did not allow the widespread use of IBM’s machines, or other tools of genocide used in Nazi Germany and manufactured by slave labour in factories and concentration camps, to be sold in the United Kingdom. Today we find ourselves in the perverse situation of having Chinese surveillance cameras with facial recognition software being used in government departments, hospitals, schools and local councils as well as in shops, such as Tesco and Starbucks. It is an issue that I doggedly raised during our debates on the telecommunications Bills that have recently been before your Lordships’ House. As I said in those debates, a series of freedom of information requests in February 2021 found that more than 70% of local councils use surveillance cameras and software from either Dahua Technology or Hikvision, which are companies rightly subject to United States sanctions for their involvement in the development and installation of technology and software that targets Uighur Muslims. Nevertheless, these companies are free to operate in the United Kingdom.

So much for co-ordinating our response with our Five Eyes allies, which was the subject of one amendment that I laid before your Lordships’ House. Far from being a reputable or independent private company, more than 42% of Hikvision is owned by Chinese state-controlled enterprises. According to Hikvision’s accounts, for the first half of 2021, the company received RMB 223 million in state subsidies, while the company works hand in glove with the authorities in Xinjiang, having signed five public-private partnerships with them since 2017. What is perhaps just as disturbing are the recent reports in the Mail on Sunday that Hikvision received up to £10,000 per month of furlough money from United Kingdom taxpayers from December 2020 until February 2021. How can it be right that, at a time when the US Government are sanctioning Hikvision for its links to Uighur concentration camps, the UK Government are giving them taxpayer money and Covid furlough funds?

It is clear that the introduction and use of this type of facial recognition software technology by the police needs substantial regulation and oversight, especially because of the dominance of sanctioned Chinese companies in the UK surveillance market. Hikvision alone has nearly 20% of the global surveillance camera market. Hikvision is working hard to penetrate and dominate the UK surveillance technology sector. In May 2021, it launched a consultant support programme and demonstration vehicles so it could bring its technology

“to all parts of the United Kingdom”.

In October, it became corporate partner in the Security Institute, the UK’s largest membership body for security professionals, and it has launched a dedicated UK technology partner programme. All of this deserves further investigation by our domestic intelligence services.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I referenced this without mentioning the company’s name. I recognise the seriousness of the issue and I will take the point back.

I have had a note to say that it is at constable level, but of course they are accountable to the PCC.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for her comprehensive reply. This has been a short but very focused debate and full of extraordinary experience from around the House. I am extremely grateful to noble Lords for coming and contributing to this debate in the expert way they have.

Some phrases rest in the mind. The noble Lord, Lord Alton, talked about live facial recognition being the tactic of authoritarian regimes, and there are several unanswered questions about Hikvision in particular that he has raised. The noble Lord, Lord Anderson, talked about the police needing democratic licence to operate, which was also the thrust of what the noble Lord, Lord Rosser, has been raising. It was also very telling that the noble Lord, Lord Anderson, said the IPA code was much more comprehensive than this code. That is somewhat extraordinary, given the subject matter of the IPA code. The mantra of not stifling innovation seems to cut across every form of government regulation at the moment. The fact is that, quite often, certainty in regulation can actually boost innovation— I think that is completely lost on this Government.

The noble Baroness, Lady Falkner, talked about human rights being in a parlous state, and I appreciated her remarks—both in a personal capacity and as chair of the Equality and Human Rights Commission—about the public sector equality duty and what is required, and the fact that human rights need to be embedded in the regulation of live facial recognition.

Of course, not all speakers would go as far as I would in asking for a moratorium while we have a review. However, all speakers would go as far as I go in requiring a review. I thought the adumbration by the noble Lord, Lord Rosser, of the elements of a review of that kind was extremely useful.

The Minister spent some time extolling the technology —its accuracy and freedom from bias and so on—but in a sense that is a secondary issue. Of course it is important, but the underpinning of this by a proper legal framework is crucial. Telling us all to wait until we see the College of Policing guidance does not really seem satisfactory. The aspect underlying everything we have all said is that this is piecemeal—it is a patchwork of legislation. You take a little bit from equalities legislation, a little bit from the Data Protection Act, a little bit to come—we know not what—from the College of Policing guidance. None of that is satisfactory. Do we all just have to wait around until the next round of judicial review and the next case against the police demonstrate that the current framework is not adequate?

Of course I will not put this to a vote. This debate was to put down a marker—another marker. The Government cannot be in any doubt at all that there is considerable anxiety and concern about the use of this technology, but this seems to be the modus operandi of the Home Office: do the minimum as required by a court case, argue that it is entirely compliant when it is not and keep blundering on. This is obviously light relief for the Minister compared with the police Bill and the Nationality and Borders Bill, so I will not torture her any further. However, I hope she takes this back to the Home Office and that we come up with a much more satisfactory framework than we have currently.

Motion withdrawn.

Data Protection: Immigration Exemption

Lord Clement-Jones Excerpts

Monday 31st January 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, it is disappointing that the procedures of your Lordships’ House effectively precluded us from voting on this SI. When we debated the draft in Grand Committee, we said that we would table a regret Motion but the Government were, of course, aware of the 31 January deadline for producing a measure in response to the Court of Appeal and apparently there was no time for a regret Motion and the usual channels arranged for this take-note Motion.

The Government are obviously proper in complying with the court order in the timing, if not the content, but Parliament should have seen the draft SI earlier, had an opportunity not only to scrutinise it but to debate what it took from that scrutiny and to vote on it. I have drawn this to the attention of the chair of the Secondary Legislation Scrutiny Committee, given that committee’s and the Delegated Powers and Regulatory Reform Committee’s focus at the moment on procedures.

We are all aware of the deficiencies when we deal with secondary legislation. We knew that we would not win a vote in the Chamber because the Labour spokesman in Grand Committee supported the regulations, although we were grateful that he agreed with much of what we said during that debate. We wanted again to put our opposition on record. I thank the Minister for her explanation of the SI during that debate and I will try not to repeat too much of what was said then but will focus on the Minister’s remarks.

The Court of Appeal required the Government to amend the Data Protection Act to remedy its incompatibility with retained EU law so that it satisfies requirements of Article 23(2) of the UK GDPR. The declaration was suspended until today to provide a reasonable time to do so. That judgment was, I think, in October so they have had plenty of time. Although this is an SI amending the Act, it does not achieve that objective. The Secretary of State must have regard under the SI to the “immigration exemption policy document” and a draft IEPD was published at the same time as the draft SI.

That policy document can be amended. It can be replaced. It is not primary legislation. It is not secondary legislation. It is not legislation at all. It is not even unamendable legislation—secondary legislation cannot be amended. It is not a “legislative measure” within the terms of Article 23(2) which the Court of Appeal described as “remarkably specific”. It is not “part and parcel” of the legislation. It is not even a code of practice or a codification of safeguards; it is simply a policy document. Parliament cannot carry out a scrutiny function in which the outcome may, in theory, be changed even if we know the realities of dealing with secondary legislation. Parliament can play no meaningful part.

In Grand Committee, I asked the Minister how the policy document builds on previous arrangements, as it appears simply to repeat existing safeguards, and also for details of the Government’s consultation with interested parties and how the issues raised in consultation have been dealt with. I am grateful to her for the letter I received this afternoon, by email, in response to this—she said she would let me have the detail if it was not data protected. I am glad to note that some points were taken on board—but not all, quite clearly, because those with whom she consulted were those who brought the case to court. She said that

“the Department published the IEPD in draft form alongside the draft Regulations on the 10th December … enabling stakeholders the opportunity to consider its contents and to comment accordingly.”

Given that this policy document is central to the arrangements, I am surprised that not publishing it could ever have been thought to be an option.

In response to my question in Grand Committee, as to how one should challenge the Home Office if one does not know what it knows, or thinks it knows, to rectify errors—how would you rectify errors if you do not know that there are errors?—the Minister said that the exemption did not restrict the right to seek rectification of inaccurate data. That does not answer the question; it merely makes that question even more important. She also said that the exemption could not be used to prevent a person establishing a legal claim—which also begs the question.

It is not in contention that this data is very significant. Lord Justice Warby said the exemption

“plays a significant role in practice as a brake on access to personal data”—

one’s own data. He referred to Home Office evidence that the exemption was relied on in 59% of responses during the period in question, and that the exemption was available in a wide range of cases. The Minister in Grand Committee made much of how limited its use is and that only the minimum is redacted—only small parts of documents that contain sensitive data that could affect operations. So, I have a request and suggestion that the Home Office, in the current version of the policy document, in paragraph nine, which is a checklist for users—that is, caseworkers—should add to the list that there should be the minimum redaction. That may be implied by other parts of the document, but what caseworkers consider is crucial, and paragraph nine is what they will go to. Can the point that she made, and on which she relied, about the minimum redaction not be spelled out clearly in the checklist? I support my noble friend.

[Lord Clement-Jones (LD)]

My Lords, I want—briefly—to supplement the remarks of my noble friends. As I said in Grand Committee, I commend my noble friend Lady Hamwee for her consistent and determined opposition to this immigration exemption. During the passage of the Bill, we were not able to delete the original provisions, but we are quite clear on these benches that this new SI does not at all reflect the safeguards required by the GDPR and by the Court of Appeal’s decision. As I said in Committee, I can only wonder what kind of advice the Minister has had. How has she been able to convince herself that this SI will not meet the same fate as the previous provisions? My noble friends referred to what Lord Justice Warby had to say, and what needs to be done is extremely clear. I do not think there is any need to repeat what my noble friends have said.

It is utterly clear that the provisions being put in place do not comply with GDPR—particularly with Recital 41, and certainly not in the way Lord Justice Warby interpreted that recital. The Home Office, regardless of the law, is going forward with this new proposal with an IEPD which is simply not good enough in terms of its legislative status. As both my noble friends said, it adds nothing in the way of safeguards which were already there.

The Minister seemed to be saying in Grand Committee the Home Office had taken on board the points made by the Open Rights Group and the3million, but that she would ascertain what those points were. Sadly, I have not received a copy of the Minster’s letter, so I do not know what those points are. I hope the Minister will adumbrate those in her response this evening. It is clear that the Home Office is in great danger of having another successful judicial review against it on these regulations.

Despite our best efforts in Grand Committee, the Minister did not deal with the fundamental issue of the mechanism being used to introduce this form of exemption. We were reminded today in the Commons about what Margaret Thatcher said:

“The first duty of Government is to uphold the law. If it tries to bob and weave and duck around that duty when it’s inconvenient, if Government does that, then so will the governed and then nothing is safe—not home, not liberty, not life itself.”


Wise words. Bobbing and weaving and ducking—is that not precisely what the Government are doing on this issue?

--- Later in debate ---

Recital 41 applies to legislative measures, and as such—

[Lord Clement-Jones (LD)]

My Lords, if I may interrupt the Minister, Lord Justice Warby’s decision on that is utterly clear about what Recital 41 does require. That is precisely the point of contention.

[Baroness Williams of Trafford (Con)]

My Lords, it is, but it does not specify by way of form or content of the legislative measure, and that is the point I am trying to make.

[Lord Clement-Jones (LD)]

But it has to be a legislative measure, not guidance.

[Baroness Williams of Trafford (Con)]

Perhaps I could reiterate that Recital 41 states that:

“Where this Regulation refers to a legal basis or a legislative measure, this does not necessarily require a legislative act adopted by a parliament”.


We will beg to differ on that, but I am just quoting what Recital 41 says.

To address the court’s concerns, the regulations therefore amend the immigration exemption, primarily to include all the relevant matters in Article 23(2)(a) to (h) of the UK GDPR. It might be helpful if I provide some details on those matters that are not relevant and are already covered in the DPA 2018. For those particular matters, no amendments are needed to the legislation, as well as for those matters that are not relevant. I will provide some details on the measures that are relevant and for which amendments have been made.

Before I do that, I point out that the regulations introduced a statutory requirement for the department to have an immigration exemption policy document before the immigration exemption could actually be applied—that is in response to the noble Lord, Lord Paddick. Regulation 2(2)(b) specified what must be addressed in the policy, and the controller must have regard to it. In answer to the noble Baroness, Lady Hamwee, we are working to tighten the deadlines set by the court, and we did publish the IEPD draft on 10 December on GOV.UK.

Continuing now on what is and is not relevant, the following limbs of Article 23(2) are already sufficiently covered in the DPA 2018. Therefore, no amendments will be made to the legislation in relation to those limbs. They are, from Article 23(2):

“(a) the purposes of the processing or categories of processing; (b) the categories of personal data; (c) the scope of the restrictions introduced … (g) the risks to the rights and freedoms of data subjects”.


The requirement under Article 23(2)(f) to make provision in respect of

“the storage periods and the applicable safeguards taking into account the nature, scope and purposes of the processing or categories of processing”

is not relevant, as the immigration exemption does not purport to extend data storage periods, and so no amendments are proposed in this regard.

On amendments made in relation to Article 23(2)(d), including the IEPD, the article states that where relevant there shall be provisions for safeguards to prevent abuse or unlawful access or transfer. This instrument will introduce additional measures to address Article 23(2)(d). It will mandate the Secretary of State to have an immigration exemption policy document in place prior to the exemption being relied on; that they must have regard to their IEPD when applying the exemption; that a record is kept of the application of the immigration exemption; and that the data subject be informed of its application, save in certain circumstances.

The IEPD and any subsequent updates to it will be published in a manner that the Secretary of State considers appropriate. Publication will allow for flexibility, where future concerns arise—I will take back the comments that the noble Baroness, Lady Hamwee, made this evening. There is no requirement to go through Parliament and any future concerns, if they arise, could be addressed in a shorter timeframe.

The regulations also specify what the IEPD must address. This additional measure will promote high standards of safeguards in applying the immigration exemption, consistent with those in relation to personal data relating to criminal convictions and offences. The IEPD explains how the immigration exemption must be operationally applied and the circumstances in which data rights might be exempted. These are set out in clear and precise terms. They will form part of Schedule 2 to the DPA 2018 once in force and, as such, will clearly constitute legislative measures.

Amendments are also made to Article 23(2)(e), on provisions as to the specification of the controller or categories of controllers, and to Article 23(2)(h), which states that where relevant there shall be provisions for the right of a data subject to be informed about the restriction, unless that is prejudicial to the purposes of the restriction—we went through that during the previous debate. The instrument will amend the immigration exemption so that the controller will have to inform the data subject that the exemption has been relied upon unless to do so would prejudice the purpose of the restriction, once again proving our commitment to be as open and transparent as we are able.

I am not sure whether it was the noble Baroness or the noble Lord who asked about the consultation process, but they almost played my words back to me. We consulted the parties to the litigation and the ICO and considered carefully their observations and comments, making amendments to the draft as appropriate, but clearly we did not take everyone’s comments on board, and therefore the court process came into being. We have tried, as far as possible, to address the issues through the IEPD.

I hope that noble Lords are now satisfied—I do not think they are, judging by their faces. I shall leave it there.

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

Lord Clement-Jones Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, as my noble friend Lady Hamwee has made clear, on these Benches we support Amendments 17 and 25. I am particularly pleased to see my Committee stage amendment enhanced in this way, and to see the noble Lord, Lord Patel, adding his powerful voice at this stage.

The noble Earl, Lord Clancarty, emphasised the importance of those from the EEA who work in our creative industries and those who work in international research and innovation. As he said, the creative industries are a hugely successful sector generating over £112 billion for the UK economy, and, as the noble Lord, Lord Hunt, emphasised, it is vital that changes being made in the immigration system protect the excellent UK medical research environment, which drives vital progress for our patients. As the noble Lord, Lord Patel, said, our research and innovation sector is world-class. I can testify to that as the chair of a university council.

All noble Lords have emphasised the importance of freedom of movement and international mobility to both these groups. I am not going to repeat what I said in Committee about the music industry. I will not rehearse those arguments, but that still does not diminish their power, particularly regarding freelance creatives, who have been mentioned today.

In respect of part of the predecessor to Amendment 25, which I moved in Committee, the Minister—the noble Lord, Lord Parkinson—said on 9 September,

“I appreciate the passion which many noble Lords have expressed for the UK’s creative sector and its unquestionable success—it is a passion I share—particularly in the current challenging climate.”

Then in a passage which could be taken both ways, depending on whether your temperament makes you an optimist or a pessimist, he said:

“In addition to keeping labour market data under careful scrutiny to monitor pressures, Home Office analysts will lead a comprehensive evaluation of the new immigration system.”


I am not sure whether that should chill my blood, in the circumstances, but he will find precious little passion in the Home Office. He then said:

“I part company with some of the noble Lords who have spoken this evening, as I do not believe we need to create a new mechanism for this. We are very fortunate that we have the Migration Advisory Committee, which has been mentioned many times already and which is widely recognised for its expertise and independence”.—[Official Report, 9/9/20; cols. 892-93.]


However, the expertise of the MAC is very narrowly focused. I looked through the list and I think there are three professors of economics, a doctor of economics and somebody who is a migration specialist. I suspect—it is not clear—that she has an economics background, so that is a full house of economists. The Minister tried to reassure us that the MAC has the ability to comment on any aspect of immigration policy as it sees fit and that it will produce an expanded annual report. What reassurance is that, if it is the wrong body? It may be good at producing reports on skills shortages in the wider economy, but where is the sectoral expertise?

As the noble Baroness, Lady Neville-Rolfe, said, this is about culture not economics. I thought that was a bullseye. Where is the committee’s understanding of the issues, particularly in respect of the creative industries and research science? Its track record on salary thresholds as they apply to the creative sector is not reassuring at all. Where is the ability to consider costs and reciprocity, as mentioned by my noble friend and other noble Lords? I do not believe the Minister has persuaded us that the MAC is the right body to carry out a review of the recruitment of international research and innovation staff, and creatives, into the country. We heard all around the House about this: from the noble Baroness, Lady Bennett, about artists; from the noble Lord, Lord Hunt, about orchestras; from my noble friend Lady Hamwee and, eloquently, from the noble Baroness, Lady Bull, about creatives. Where is that understanding in the MAC?

In contrast, Amendment 25 would have a proper focus—I think that was the phrase used by the noble Baroness, Lady Bull—on these sectors. On these Benches, we fully understand that the noble Earl, Lord Clancarty, intends not to put his amendment to a vote. But I assure him that we will give him every support in prosecuting his case in every other way possible.

[Lord Kennedy of Southwark (Lab Co-op) [V]]

My Lords, Amendments 17 and 25, in the name of the noble Earl, Lord Clancarty, and others are ones that I fully support. To deal first with science and research, in this instance I agree with the Prime Minister: I want Britain to be a science superpower. That is a wonderful idea and aim, and if we delivered it we would ensure that the wonderful work of our innovation continued. My problem is that we seem to be doing everything possible to ensure that it does not happen. I bet that our competitors in the United States, France and Germany cannot believe their luck given how Britain is acting, as we are doing everything possible to drive people away—the innovators and scientists, the people who want to come to develop new drugs. Look at all areas of work and business; they are being driven away by the attitude of the Government. I find it frankly astonishing that we have to have this debate. It is of course one of the many benefits of Brexit. It keeps on giving, and I find it astonishing that we are here.

I also remembered the words of the noble Earl, Lord Clancarty, in Committee, when he told us that we should not forget that:

“What we do to others will be done to us”.—[Official Report, 9/9/20; col. 876.]


We are going to find ourselves in all sorts of difficulties, and I will miss what we had. It gives me no pleasure at all to see what Britain is doing.

With regard to the arts, again, it is hard to overestimate the amount of money the arts bring in, and many noble Lords spoke passionately about them. I wanted to mention somebody who changed my life. Franz Busuttil was my music teacher at school; I met him when I was 11, and he taught me how to read music and play musical instruments. I did my Associated Board exams and he opened up my life to the world of the arts and music. Franz was Maltese, of course; he probably would not be allowed in under the present regime, but he changed my life and, when I go to the Globe or a concert, I always think about how Franz did that for me and his contribution to this country as an immigrant.

When you sit in a theatre, such as the Globe, and look around, people from all over the world are sitting there, watching Shakespeare being performed in a theatre very close to where it was performed originally. People often come to Britain—and we want tourists to come here—but they do not often come for the weather; they come for the art, the culture and the fantastic experience they can have. Look at the Edinburgh Festival, the greatest arts festival in the world. That is what this country is all about.

Again, with the decisions we will take here today on this Bill, we are just cutting our nose off to spite our face; it is absolute madness. I fully support these amendments and hope that the noble Baroness can see the passion of many noble Lords who have spoken in this debate and give a positive reply.

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

Lord Clement-Jones Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 9th September 2020 Lords Chamber

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I am delighted to move this amendment on behalf of my noble friend Lord Patel.

In parallel to this Bill, the Government are taking through the Medicines and Medical Devices Bill to ensure that we have an effective regulatory system post Brexit. As the noble Lord, Lord Bethell, explained at Second Reading, we must do all that we can to support the UK’s thriving life sciences industry. He described a world where big data, artificial intelligence and genetics have become enormously powerful engines of innovation, and where engineering and computer science have combined with medicine to generate exciting new medical developments.

It is vital that changes being made in the immigration system protect the excellent UK medical research environment, which drives vital progress for our patients. That is contingent, as Cancer Research UK has reported, on the maintenance of the UK’s leading research environment and our continuing ability to attract, recruit and retain global scientific talent at all levels. It is this mixture of domestic and international talent that supports our thriving research environment. For example, 31% of the UK’s Nobel prize winners in science were born outside the UK, while 50% of Cancer Research UK’s supported PhD students are not from the UK, rising to 76% of postdoctoral researchers at its institutes.

I welcome the Government’s ambition to make the immigration system work for science and research, but the science and research community has real worries about the cost of the system, particularly in comparison to other countries. The current UK immigration system is already one of the most expensive in the world. The total average up-front cost for a tier 2 skilled worker visa, typically used by scientific workers, is 540% higher than the average cost in other leading scientific nations. Most of Cancer Research UK’s researchers say the ease with which their dependants can access public services and take up work is a key factor in choosing a research destination, yet a researcher coming to the UK with a family of four faces nearly £10,000 of fees if they want to apply for indefinite leave to remain. Much of that cost is associated with the health surcharge.

At the moment, research organisations will often step in and pay these charges, but they themselves are struggling financially, particularly given the uncertainty about research grants post Brexit. Cancer Research UK estimates that a typical institute that it funds could face additional costs of between £300,000 and £800,000 once EEA workers move on to the new system. That is a lot of money which should be spent on research activities.

The new global talent visa will play a crucial role in attracting the scientific talent the UK needs. It is a welcome step, but it also retains fees at a damagingly high level. A five-year visa would incur up-front costs of £2,608 for a researcher looking to move here. It is more expensive than India, France, Australia, Germany and Japan. The global talent visa is designed for experienced research staff, but many who are early in their careers or in vital technical roles will not be eligible. We need the new immigration system to work for all the members of a research team. That means attracting researchers early in their careers and ensuring that vital technical staff, who are after all the backbone of many research teams but who are often not that highly paid, are made to feel welcome to live and work in the UK.

The reduction of the salary threshold to £25,600 is a positive step, but researchers who are not eligible for the global talent visa will still be required to apply via the tier 2 route, which is both costly and bureaucratic. Technical staff, particularly outside London, may still fail to pass the salary threshold and will thus be excluded from the chance to contribute to our research environment. For technicians in particular this route is daunting and, as I have said, it is far from certain that they will earn above the £25,600 salary threshold the system proposes.

Amendment 34 is a constructive approach to encourage the Government to undertake an impact assessment of the effects of these regulations on the recruitment of international research and innovation staff in the United Kingdom. These people are vital to the future prosperity of this country. We believe that the Government should delay exercising the power to modify visa charges until the evaluation has been received, so that they can be fully informed about the impact of fees on recruiting these very talented people. I hope that, as a result, the Government will then bring forward a reduction in the total visa costs for researchers and their dependants, a review of the costs faced by medical researchers through the NHS surcharge and consideration of exemption. An option to spread fees over the lifetime of a visa to reduce up-front payments should be considered, along with an improved, digitised system to streamline visa applications and prepare for an expected increase in demand. I really hope that the Minister and the Government will listen to this sympathetically. I beg to move.

[Lord Clement-Jones (LD) [V]]

My Lords, I will speak to Amendment 69 in my name. Our creative industries are hugely successful, generating over £111 billion for the UK economy. Over the past decade, the sector has grown twice as fast as the UK economy as a whole and is part of a bigger creative economy employing more than 3 million people and generating value across the whole supply chain.

Music is a key component of our creative industries. UK Music’s inaugural Music by Numbers report revealed that in 2018 the UK music industry contributed £5.2 billion to the UK economy and that the total export revenue of the music industry was £2.7 billion. British artists account for one in eight albums sold around the world. Music tourism made a £4.5 billion contribution to the UK economy in 2018.

Given the unique nature of the sector, the high volume of freelancers, micro-businesses and performance and project-based work, it is vital that any new visa system is both shaped by and tailored to the creative industries. This is primarily a services and content-driven sector, so the ability to tour and easily move the people, equipment and materials they travel with is vital.

For many roles, too, there is a shortage of applicants with the required skills, experience or qualifications. The UK is a prime destination for the production of music, offering globally recognised recording studios, composers and performers. Our music producers are used by international musicians. Not only does this ensure a continued influx of talent into the UK; it also creates employment opportunities for UK-based music producers, performers, engineers, music technicians and so on.

The market for touring musicians and composers is extremely competitive, and the UK needs to be easily accessible to continue to attract international talent for continued global investment in the UK. As the Minister is aware, and as I and others argued on Second Reading, the creative sector wants to see the Government provide a simple way for European Union musicians and other artists to tour in the UK, and request reciprocity in the trade negotiations. This would mean extending the permitted paid engagement scheme, allowing for multiple visits and permit-free festival arrangements for EU citizens, and for multiple visits and the seeking of a reciprocal touring visa with the EU to enable creators and performers to travel temporarily and to take their equipment with them, tax free.

The UK already offers visa-free entry, including for work purposes, to non-visa nationals. However, the scope of that route for non-visa nationals is too restrictive, and it does not provide any certainty, because ultimately, it is down to the discretion of the UK border official to assess whether the musician is qualified to perform the paid engagement, or that the paid engagement relates to their area of expertise, qualification or occupation. The details provided by the UK Government in the context of the UK points-based immigration system require further clarification of the status of musicians.

European musicians need to be able to tour without restrictions. This includes the transportation of their equipment, and it applies not only to performing musicians but also to song writers, composers, performers and producers, who often travel for work-related purposes. The crew—the trusted people whom musicians rely on when touring—need to be expressly included within simplified touring provisions. This affects UK musicians touring Europe as well as European Union or EEA musicians touring the UK. So we need clarity in any trade agreement that performers and their equipment can tour throughout the European Union without restrictions. Offering a simple solution to musicians or composers intending to perform in the UK would provide a good negotiating position to ensure a favourable system with the EU and other countries, based on reciprocity.

At present, because of freedom of movement for people, UK performers can play a concert in Amsterdam one night, then simply travel to Paris the next night, with no associated costs or red tape. Following the end of the transition period, this freedom will end for UK musicians, unless there are appropriate measures in place to support touring musicians, composers and so on. Countries such as France have traditionally required work permits for performances by artists from non-EU countries. A new reciprocal system is needed post-transition, to ensure that musicians and their crew can operate across Europe in an economic and unbureaucratic way, preserving vital economic and cultural links.

Costly bureaucracy will make touring simply unviable for many artists, putting the development of future globally leading UK talent at risk. This has become even more urgent following the social distancing measures and other restrictions imposed on live events. Most musicians, composers and everyone else involved in the successful organisation of live music events are self-employed or operate as small and medium-sized businesses. Social distancing restrictions will render impossible any economically viable live events at least until the end of 2020, with catastrophic consequences for the live music sector. Based on the figures for live music in UK Music’s Music By Numbers report, the loss to the sector will be at least £900 million.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I have received two requests to speak after the Minister. I first call the noble Lord, Lord Clement-Jones.

[Lord Clement-Jones (LD) [V]]

My Lords, I hope that the noble Lord, Lord Hunt, will not mind if I intervene briefly before he speaks.

I do not think that the Minister can be in any doubt about the powerful concerns that noble Lords have expressed during this debate. First, I thank all those noble Lords who have spoken in the debate on my Amendment 69. Of course, it is part of a pattern across the board in other areas, including universities and the tech industries, which my noble friend Lady Ludford mentioned as well.

I thank the Minister for his response but he is placing an awful lot of weight on the Migration Advisory Committee making an impact assessment in this area. I will read extremely carefully what he has to say but the noble Baroness, Lady Neville-Rolfe, had it right when she expressed doubt over whether that was the right body to be carrying out this kind of assessment: a rather cold, hard, economic assessment that does not take into account many of the other surrounding circumstances involving our creative industries.

The Minister thinks that the amendment, by creating this kind of assessment and report, would replicate what is already there. I beg to differ: this is a separate, and rather different, arrangement, particularly with respect to its consideration of reciprocity. A number of noble Lords were in agreement that reciprocity was extremely important. I thought that the testimonies of the noble Baroness, Lady Bull, and the noble Earl, Lord Clancarty, were particularly important; they spoke from their personal experience. That is not something that the Migration Advisory Committee would deal with.

I will certainly read with interest and care what the Minister has had to say but we may wish to come back to this really important subject—which has gained such support across the House—on Report.

[Lord Kennedy of Southwark (Lab Co-op)]

I thank the Minister for his response to the debate. He should be in no doubt of the importance that noble Lords place on these issues, whether it is innovation and research, the arts and creative industries, our universities or our faith communities. I think it very likely that we will come back to these matters on Report.

Would the Minister be prepared to ask his office to go through the debate in the next few days? He could write to us all, as there may be some more points to which we have not had full answers. This may actually assist the Minister; these things might not come back at the next stage.

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

Lord Clement-Jones Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020 Lords Chamber

[Lord Clement-Jones (LD) [V]]

My Lords, I share all the criticisms made by my noble friends but I shall focus on the potentially hugely detrimental impact on the higher education, cultural and tech sectors of the ending of EEA freedom of movement and on how government needs to take the necessary action required by those sectors so that the impact can be at least partially mitigated.

International students and academic staff contribute hugely to our universities and the UK as a whole. We have recently lost ground as a destination, and the new points-based system and Covid-19 are extremely likely to further damage recruitment. The creative and culture sector makes a major contribution to our lives and economy, but highly talented individuals in this sector are often paid salaries lower than the UK median. As regards the important tech sector, 13% of the UK’s digital tech workforce is international. The UK faces a chronic digital skills gap, and access to talent is the number one issue in the sector.

Given the issues faced by those sectors, will the Government take these steps? Will they extend the current, or make special, arrangements for EU students for the calendar year 2021? Will they confirm and ensure better promotion of the rules for the new two-year post-study work visa? Under the new minimum salary requirements, only 27% of current international academic staff will be eligible, and the figure is even lower in the creative sector. For each sector, will the Government therefore explore a further reduction in the current income threshold and provide greater flexibility for eligibility? For the creative sector, will they extend the permitted paid engagement scheme, allowing multiple visits and permit-free festival arrangements for EU citizens? Will they also seek a reciprocal touring visa with the EU to enable creators and performers to travel temporarily and take their equipment with them tax free?

The new system will place significant burdens on SMEs in particular. Will the Government give businesses and individuals time, guidance and support to adapt to the new system and provide a much more streamlined system for processing visas? Will they bring costs in line with other countries? The total costs are high. In addition to salary costs, they include the cost of a sponsor licence and a visa, the immigration skills charge and an immigration health surcharge, all of which make recruiting workers internationally much more challenging.

In just these three sectors, despite the huge detriment potentially caused by the new system, a number of crucial mitigating steps could be taken if there is the political will. I hope that the Minister can respond accordingly.