Sir Edward Heath: Operation Conifer

Lord Coaker Excerpts

Wednesday 17th January 2024 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I will start by saying what a privilege it is to take part in this short debate. I will also say, as a proud Labour politician and Front-Bencher, that this debate goes to the heart of our politics. No matter which party anybody belongs too, they deserve respect and justice—that is the important point that should be made.

We started with a brilliant speech from the noble Lord, Lord Lexden—really stunning. It is a privilege to be in Parliament sometimes when speeches like that are made that challenge the state—and challenge all of us to see whether we have got it right. Before I lose it in some of the other points I want to make, I want to go to the heart of what the noble Lord, Lord Lexden, said when he called for a public inquiry. He made a direct request that the new Home Secretary should be given a copy of the Hansard report of this debate and should consider the request for a public inquiry that was made by him and supported by other noble Lords who spoke. Most importantly, he asked the Minister to respond and reply to that request, with reasons that lay out why the Government think a public inquiry is necessary or why they have concluded that it is not. That is at the heart of the request. All the contributions made here by many noble Lords were moving and important.

I am sorry to disappoint the noble Lord, Lord Waldegrave. I was a very young Labour politician in 1970; I did all I could to stop Ted Heath being elected, and failed. The important point the noble Lord, Lord Waldegrave, made is that we must do something about wild accusations being made against public figures, often without any basis at all. The noble Lord, Lord Cormack, referred to this. Have we not woken up—as a system—to the fact that we have to have Ministers who challenge the advice they get, who say to people “This is what we are being told numerous times by Members of Parliament, Peers and members of the public who are coming to us and bringing forward real questions about what the state is doing and what it has got wrong and asking why it can’t respond”? How many more times, as the noble Lord, Lord Cormack, said, do we have to have a Post Office? How many more times, as the noble Lord, Lord Dobbs, said, do we have to have another Hillsborough, or a Bloody Sunday, or many of the other scandals that we have seen? It takes decades, request after request and demand after demand before the state wakes up and answers the questions that are posed to it.

Why does it take so long? If the noble Lord, Lord Lexden, is wrong, why not expose that information and evidence, and have it out in public so that we can see it and come to a determination? Surely a former Prime Minister of this country deserves the justice that would be brought about by looking at all the evidence to determine how it is.

We simply cannot have the situation in the report— I was reading it again as the debate went on and looked through it, and the noble Lord, Lord Macdonald, pointed it out to us. I do not know the world everyone lives in but, to me certainly, as soon as you say you will interview someone under caution, then, in the court of public opinion, the person has something to answer. That is the reality of it: the aspersions cast on the reputation of a man.

Of course, the police say, “This doesn’t mean they are guilty; it doesn’t mean anything”, but the noble Lord, Lord Macdonald, as a former Director of Public Prosecutions, was absolutely right to point out that, as soon as that is said, people say, “No smoke without fire”, “Nothing to see here—oh, really?”, et cetera. A former Prime Minister of this country—in fact, anybody, from somebody living on an estate somewhere to someone holding the highest office—deserves better than that. It is simply not good enough, and something needs to be done.

What are we depending on? I am glad that the noble Lord, Lord Butler, is in his place. He made a very important point in the Question that the noble Lord, Lord Lexden, had towards the end of October— I will be corrected if I get this wrong. He pointed out that the case rests on a fantasist who is now in jail. A former Prime Minister of our country is suffering this slur to his reputation on the basis, originally, as I understand it, of a man who is now in jail for perverting the course of justice. Is that really what we want to base this on? The second leg of it is a former chief constable who was moved to Cleveland, then made to leave because of misconduct. A disgraced former chief constable and somebody now in jail for perverting the course of justice are the two major pillars upon which this is based. Is that really satisfactory to all of us?

Wiltshire Police investigated itself. How can that be seen to be right? I cannot remember which noble Lord pointed out that justice not only has to be done but be seen to be done. I suggest that, having one disgraced person in jail and one disgraced former chief constable as the main pillars of that, a police force which is investigating itself, whatever the rights and wrongs of a public inquiry, surely brings us all to the point where we question how the state has operated with respect to a former Prime Minister.

I finish by repeating the point made by the noble Lord, Lord Lexden: let us see the Minister take this debate to the new Home Secretary, ask him to reconsider and come back to this Chamber with his decision. Surely a former Prime Minister deserves at least that.

Immigration Detention: Brook House Inquiry

Lord Coaker Excerpts

Thursday 11th January 2024 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, the new contract with Serco to run the Gatwick IRC commenced in May 2020 and runs for an eight-year period. The contract provides increased staffing levels, improved use of modern technology and enhanced investment in resident activity and welfare services. We have strengthened our capacity to provide assurance and oversight of service provision at Gatwick and the rest of the removal estate, including action, as I have just said, to refresh and reinforce whistleblowing arrangements, improve information flows and analysis of complaints and address incidents and use of force. As regards the drugs point, the Government will be responding to the report in due course.

[Lord Coaker (Lab)]

My Lords, in his original Answer, the Minister said that the Government are carefully considering the Brook House inquiry report and will respond in due course. Why has the Minister therefore told us that they have already come to the conclusion that they will ignore what the Brook House inquiry said, namely that there should be a 28-day limit on immigration detention? As my noble friend Lady Chakrabarti pointed out, that means that so-called immigration offenders are treated worse than terrorists.

[Lord Sharpe of Epsom (Con)]

That is not what I said; I said that the Government are considering the report. The cross-government working group, chaired by the director of detention services at the Home Office, is considering the report and all the recommendations, including those with wider applicability across the detention estate. As regards the 28 days, I go back to what I said earlier: in particular, we think that this would impair our ability to remove those who have breached immigration laws and refused to leave the UK voluntarily. That would particularly place the community at risk, especially if foreign national offenders were released into the community. As I say, though, the vast majority are released within 28 days anyway.

Pakistan: Afghans Eligible for Resettlement in UK

Lord Coaker Excerpts

Monday 18th December 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

The noble Baroness is right that that policy has been suspended for the time being. I do not have the number of visas issued but, as of the end of September 2023, the total number of arrivals from Afghanistan or a third country was around 24,600. A lot have arrived in the last few weeks, so I do not know the final numbers, which are still provisional.

[Lord Coaker (Lab)]

My Lords, I think the Minister said that the Government do not give a running commentary on the figures. However, the Minister for the Armed Forces said in the other place:

“There are around 2,000 people in Afghanistan who we need to move out and around 1,800 left in Pakistan who we need to bring in”.—[Official Report, 11/12/23; col. 635.]


Can the Minister comment on those figures? Will the schemes we are discussing deal with those 3,800 people? As the noble Lord, Lord Lancaster, said, they need urgently to be brought back to this country because they served with us.

[Lord Sharpe of Epsom (Con)]

The noble Lord is quite right. I did not say that we do not give a running commentary; I said that the information is operational and changes on a regular basis. The Minister for Veterans’ Affairs stated that we aimed to relocate 2,800 ARAP-eligible Afghans before the end of 2023; I am pleased to be able to say that we are on course to achieve that.

Refugees: Notice Period for Home Office Accommodation

Lord Coaker Excerpts

Monday 18th December 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, there are a number of things that we are doing. We have local authority liaison officers who provide a specific point of contact for local authorities, particularly for urgent discontinuation-related inquiries. There are significant improvements in train to ensure that local authorities receive early notification of those who are being granted and leaving Home Office accommodation and supporting those customers through the move-on process following a positive decision. Following notification of a service decision, accommodation providers will notify local authorities within two days. We also share relevant data in the form of heat maps and various other macro data, if you will, to ensure effective planning.

[Lord Coaker (Lab)]

My Lords, notwithstanding what the Minister has just told us, the reality for many refugees with newly granted status is that they are required to leave their accommodation, often within seven days from being given a notice to quit. That means they are forced to go to their local authorities and many of them are homeless or on the streets. That is the reality, and it is the result of government policy. All the Minister tells us is that everything is fine, but it is not. It needs sorting out.

[Lord Sharpe of Epsom (Con)]

The noble Lord is right that they get seven days from the notice to quit, but they get 28 days from the issue of the biometric residence permit, so it is not quite right.

Investigatory Powers (Amendment) Bill [HL]

Lord Coaker Excerpts

Committee stage
Wednesday 13th December 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I wish to speak to Amendments 44 and 51A, which are in the name of the noble Lord, Lord Anderson, and to which the noble Lord, Lord Fox, and I have added our names. They very neatly follow on from Amendment 43, which has just been moved by the noble Lord, Lord West of Spithead, and are based on a recommendation in the report by the noble Lord, Lord Anderson, in which he says at paragraph 8.20:

“I recommend the use of a deputy to be permitted for the purposes of the triple lock when the Prime Minister is unable”—


I stress the word “unable”—

“to approve a warrant to the required timescale (in particular through incapacity, conflict of interest or inability to communicate securely)”.

These amendments are prompted by the fact that, instead of the word “unable”, which was that chosen by the noble Lord, Lord Anderson, for the recommendation in his report, and which is also used in Amendment 43, the word that appears in Clause 21 for condition A in the new subsection (3) of Section 26 is “unavailable”. The same point arises with the wording of the triple lock in relation to equipment interference which Clause 22 seeks to introduce, under Section 111 of the 2016 Act. The word “unavailable” would be replaced with the word “unable” in both places by the amendments from the noble Lord, Lord Anderson.

This is all about the meaning of words. The aim must surely be to find the right word to use for describing the situation in which the Prime Minister’s function of giving the necessary approval must be passed to another individual, other than the Secretary of State who has applied for the warrant. This is, of course, a very sensitive matter, and that in itself indicates the importance of choosing the right word.

The question is whether the phrase

“unavailable to decide whether to give approval”

covers all possible situations. The word “unable” includes “unavailable”, but “unavailable” does not always mean the same as “unable”. The word “unavailable” sets too low a bar. The Prime Minister could be unavailable simply because he or she is doing something else—whatever it might be—that is occupying their mind or demanding their attention elsewhere.

On 11 December 2023, the Minister sent a letter to the noble Baroness, Lady Drake, in response to points raised on this Bill by the Constitution Committee, which gave examples of prime ministerial unavailability. Attached to that letter was a commentary on the proposed amendments to Sections 26 and 111, in which the point is made that the word “unavailable” should be understood to mean situations—of which two examples are given— in which the Prime Minister is “genuinely unavailable” to consider the application. The introduction of the word “genuinely” demonstrates the problem with the word “unavailable” on its own, to which the noble Lord, Lord Anderson, draws attention: it needs to be narrowed down and clarified. That is what the word “genuinely” does, but it is not in the Bill.

It is worth noting that, in each of the two examples given in the commentary, “unable” is used to describe situations Prime Ministers may find themselves in which they cannot perform the function to which the statute refers:

“5.1 The Prime Minister is overseas in a location where they are unable to receive the warrant application due to the security requirements and classification of the documents.


5.2. The Prime Minister is medically incapacitated and therefore unable to consider the warrant.”


The fact that “unable” is used here suggests that the word the noble Lord, Lord Anderson, used in his report really is the right one for the situations referred to in these two sections.

There is a further point that the noble Lord, Lord Anderson, would make: “unavailable” does not cover the situation in which there may be a conflict of interest. This surely is a reason why a Prime Minister, although available, should not exercise the power. Here especially, the greater clarity that the word “unable” brings to the situation really is needed.

I know that the Minister has discussed this issue of the wording with the noble Lord, Lord Anderson, perhaps several times and will, no doubt, refer to the position he and his Bill team have adopted so far during these discussions when he replies. But I hope he will feel able, especially in view of the points I have made about the commentary attached to his letter of 11 December, to agree to another meeting with the noble Lord, and possibly myself, before the Bill reaches Report. I hope that, when he comes to reply, he will be able to respond to that request.

[Lord Coaker (Lab)]

My Lords, I am pleased to follow my noble friend Lord West and, indeed, the noble and learned Lord, Lord Hope. They have raised some important questions for the Committee to consider and for the Minister to respond to.

It may be helpful to remind the Committee and others present that Clauses 21 and 22 amend the section of the IPA that deals with targeted interception and examination warrants regarding Members of both Houses of Parliament and the devolved legislatures. These are clearly very important pieces of legislation. The safeguard on such warrants is referred to as the triple lock. As with other warrants in the IPA, the Secretary of State and the judicial commissioner must approve the warrant. But with respect to this issue, the Prime Minister must also approve warrants for the communications of Members of UK Parliaments, hence the difficulty that my noble friend, the noble and learned Lord and others have referred to. What happens with the triple lock if the Prime Minister is not available to authorise that warrant with respect to the communications of parliamentarians, not only in Westminster but the devolved legislatures?

One can see the seriousness of this problem. The Government have rightly felt it necessary to bring this measure forward, given the unfortunate situation when the Prime Minister was dangerously ill in hospital with Covid; thankfully, he recovered. This is clearly a very important issue which we need to consider.

My noble friend Lord West outlined an issue, as did the noble and learned Lord, Lord Hope, that I will speak briefly to. I say respectfully to all noble Lords that the points the noble and learned Lord made are not dancing on the head of a pin: they are very real questions for the Minister about the difference between “unavailable” and “unable” and what that means. The Government need to clarify that for us. My noble friend Lord West’s amendment and my Amendment 47, on which Amendment 45 is consequential, question the wide scope the Government have within the legislation, whereby it almost seems as if any Secretary of State will be able to deputise for the Prime Minister. My noble friend Lord Murphy made the point at Second Reading, which my noble friend Lord West has just made again, that it would surely be better if that scope were narrowed to Secretaries of State with experience of dealing with warrants. My and my noble friend Lord West’s amendments seek to narrow that scope to Secretaries of State who have that experience.

I take the point of my noble friend Lord West. His amendment as it stands is probing. Maybe drafting improvements could be made. The thrust of what he and others said, however, is that we need to do something to deal with the issue.

I have just a couple of questions before I move on to Amendment 55A. Who decides whether the Prime Minister is available or unavailable, or if indeed we have the Bill amended? Who decides that the Prime Minister is unable to take the decision for that triple lock? What is the process by which the decision is made that this is the case?

On Amendment 45, it is unclear to me who the senior officials are that could also make the decision. We have other Secretaries of State who could take the decision if the Prime Minister is “unavailable” or “unable”—if an amendment is passed—to take the decision. Then we have senior officials who might be allowed to take this decision. It is not dancing on the head of pin to ask “What does a “senior official” mean?” and “Who are the officials?”, hence my probing Amendment 45 on who they are and in what circumstances they could take these permissions.

In preparing for Committee, I asked about what sorts of situations might arise. Of course we can think of different situations, and the Government, in the code of practice that they publish, outline a couple of scenarios that may require urgent warrants and the Prime Minister to be involved and so on. In 2011, the noble Lord, Lord Hennessy, apparently did a helpful piece of work on Prime Ministerial powers. He talked of what happens if the Prime Minister is unable to take a decision with respect to shooting down a hijacked aircraft or an unidentified civil aircraft. What happens in those circumstances? Is that the sort of circumstance that the Bill seeks to deal with as well? What we are discussing is obviously also really important because this may involve the authorisation of the use of nuclear weapons. The Minister will be limited in what he can say about that.

I do not want to create a TV drama-type situation, but these are really important questions and the Government are right to address the situation of a Prime Minister being unavailable or unable to take these decisions in some of these circumstances. Again, this gives us the opportunity to think about what areas of national security the Bill would cover.

As is said in the explanatory statement, Amendment 55A

“is designed to probe the extent to which powers in the Investigatory Powers Act 2016 have been used in relation to Members of Parliament”.

As I have mentioned, I was particularly disturbed that, under Section 230 of the Investigatory Powers Act, the Prime Minister can deal directly with the Investigatory Powers Commissioner to keep under review the discharge of the functions of the Armed Forces with regard to intelligence activities. Can the Minister say what the role of Defence Intelligence is in all this? The reason that I raise the matter in this debate on parliamentary communications is due to the report in the Mail on Sunday on 25 November, which spoke of Defence Intelligence being involved in in the Government’s response to Covid. It was involved in looking at communications—and, according to the report in the Mail on Sunday, some of the communications involved parliamentarians.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I am happy to acknowledge that the noble Lord is right: their powers have expanded, as have their influence and celebrity over the years. I do not have an answer now, but I will come back to the noble Lord on that.

The objective of these clauses is to provide greater resilience in the process. It is critical that we do not undermine this from the off. I therefore hope noble Lords feel reassured by the explanations given, and the information set out in the draft code of practice, which is the appropriate place to set out the detail of this alternative process.

[Lord Coaker (Lab)]

May I say to the noble Lord that the answer he gave to me with respect to the Mail on Sunday story was a really good answer? I am seeking transparency, which we will come on to in the next set of amendments, where Ministers can provide it without compromising operational security, as the noble Baroness, Lady Manningham-Buller, rightly pointed out. The Minister went as far as he could to say that the story needs to be looked at, it raises particular issues and I can pursue those outside of the Chamber. That was an extremely helpful comment and shows what I am trying to get at with respect to transparency—rather than just dismissing it and saying we cannot talk about it. I am very grateful for the response and thought it was very helpful.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I will speak to government Amendments 56, 59 and 60. As I set out in my letter to all noble Lords on 4 December, these small amendments will ensure that the legislation works effectively.

Government Amendment 56 amends Schedule 3 to the Investigatory Powers Act 2016 to provide exceptions for disclosures of intercepted materials to inquiries or inquests in Northern Ireland and Scotland into a person’s death. This will create parity with existing provisions for coroners in England and Wales by putting relevant coroners in Northern Ireland and sheriffs investigating deaths in Scotland on the same footing as their counterparts in England and Wales. Where necessary in the interests of justice, intercepted materials can be considered in connection with their inquiry or inquest.

Government Amendments 59 and 60 will maintain the extent of the IPA 2016, as set out in Section 272 of that Act. They amend this existing power to ensure that the measures in the 2016 Act, as amended by this Bill, can be extended to the Isle of Man or the British Overseas Territories, thus ensuring consistency across the legislation. If the Government sought to extend any provision to the Isle of Man or any of the British Overseas Territories, this would require an Order in Council and the Government would, of course, consult the relevant Administrations well in advance. I ask noble Lords to support these amendments.

[Lord Coaker (Lab)]

My Lords, I will speak to my Amendments 57 and 58. They are obviously probing amendments but may generate a little discussion because they are none the less important.

Let me begin by saying that I accept absolutely what the noble Baroness, Lady Manningham-Buller, said about the important of ensuring the secrecy of much of what our security services and others do. That is an important statement of principle, and it was reinforced by my noble friend Lord Murphy when he recounted, as far as he could, some of the responsibility he had in his posts, particularly as Secretary of State for Northern Ireland. It is important to establish that I accept that principle.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B, C, D and H and New Code I) Order 2023

Lord Coaker Excerpts

Tuesday 12th December 2023 Grand Committee

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his introduction to these revisions to the PACE codes. He outlined the reasons for the changes, which reflect the various provisions of the National Security Act 2023 and the Public Order Act 2023. As such, the various rights and wrongs of the provisions have been debated, and they have been included in primary legislation. There is no need to rehearse these debates, but I will ask some questions about the resulting changes to the PACE codes.

PACE Code A is to be changed to include provisions to improve community relations and data collection. Given the importance, as we heard from the noble Baroness, of confidence and trust around suspicionless stop and search in particular, can the Minister say what these changes are and whether they help deal with issues such as disproportionality and the maintenance of community trust, which we all wish to see in the code? The changes say that they do that, so it would be interesting to know how.

More generally, is there any difference under these codes in the treatment of children or do they apply to everyone regardless of age? Some clarification on that would be helpful. Although the Minister said that these changes come from the National Security Act and the Public Order Act, given some of the questions around the use of stop and search, could other changes be made using this as a vehicle? One example mentioned here is strip-search. We have guidance for strip-search here, but we know what controversy there has been around it. I sometimes wonder whether the machine says, “We’ve had the National Security Act and the Public Order Act, so we need these changes to the PACE code that flow from that”, but there may be a missed opportunity to reflect more widely on some of the issues around what is sensible.

I think the Minister did so, but can he confirm that the stop and search powers in Sections 10 and 11 of the Public Order Act are now fully covered by these revised PACE codes?

The revised codes also include a date for the start of the serious violence reduction order pilot. When will this start and, given that it is a pilot, where will it take place? The Minister in the other place said that this was an updated start date. What caused the delay in the first place? I think the original intention, according to the statement of the Minister in the other place, was for it to start this April.

We support the various changes in the amended codes and the introduction of the new Code I, following the National Security Act 2023. As the Minister helpfully pointed out, the consultation showed that there was general support from not only the police and the CPS but the independent reviewer for the various revisions to the codes in terms of how persons are detained and treated when arrested under terrorism legislation.

Given that terrorism legislation is not devolved, but these PACE codes deal with England and Wales, will the Minister say what discussions have taken place with Northern Ireland—I presume with officials there—and Scotland, and how the PACE codes have been updated? The Minister spent some time talking about the welcome changes that were made to the PACE codes with respect to terrorism, but these codes refer to England and Wales and not to Scotland and Northern Ireland. How has that been dealt with? It would be interesting to hear from the Minister about what has happened there.

PACE Codes A and D are amended so that an officer does not have to give their name in the case of inquiries linked to national security. I understand that—it is for sensible and obvious reasons, as the Government said—but how would it work if somebody wanted to complain or get a review of their treatment? I appreciate that the name should not be given, but could a number be given, or is there some other method by which anonymity could be protected while recognising that sometimes issues arise and somebody may wish to complain or take forward something that has occurred in an interview? They may have been interviewed and perhaps even arrested and then released and wish to make some complaint about it. How will that be dealt with?

We accept these changes and recognise the importance of striking the balance between individual rights and security. Public confidence and trust are everything, even in challenging circumstances. I urge the Government to do everything in their power to ensure that we maintain that confidence and trust with respect to the implementation of this order. We do not oppose these important codes, but some clarifications would be helpful for us all.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their contributions. I will do my best to deal with the points raised.

The noble Lord finished on the subject of whether it is proportionate, in effect, to allow police officers to not give their names in inquiries linked to national security, as per Codes A and D. The Government have amended Codes A and D to exempt officers from having to give their name in cases of inquiries linked to national security, which extends the approach currently taken towards terrorism investigations. It is a crucial change to protect police officers from being obliged to reveal their identity to state actors who may be highly trained and seek to use such knowledge to conduct harmful activity against them. It is difficult to see how an individual might write a complaint against an officer who is interfering with them, but I will look into it, and if I can find anything useful to enlighten the noble Lord, I will come back to him.

The noble Lord also asked whether we have been consulting the devolved Administrations. The answer is yes. We have been consulting them extensively. When PACE Northern Ireland will be published is a matter for the Northern Ireland Executive. However, they are undertaking a review of the PACE Northern Ireland codes of practice and are apparently about to revise them. As soon as I have those revisions, I will let the noble Lord know.

[Lord Coaker (Lab)]

Given that the Executive and the Assembly are not functioning, does he mean that officials are doing that?

[Lord Sharpe of Epsom (Con)]

I assume so, but I will find out and come back to the noble Lord.

The Government also obtained concurrence from the Lord Advocate for the part of this that applies to Scotland. We engaged with the Scottish Government and Scottish policing throughout the process of creating this code. I believe that one or two of the changes made reflect Scottish policing’s comments on it.

On disproportionality, which was raised by the noble Baroness, Lady Doocey, as well as the noble Lord, of course I understand the concerns around disproportionality and the impact of stop and search, particularly on members of the black community. Nobody should be targeted because of their race. Extensive safeguards such as statutory codes of practice and body-worn video exist to ensure this does not happen.

It is worth pointing out that, although disparities in the use of stop and search remain, it is positive that they have continued to decrease for the past four years. The proposals set out in these changes, such as the communication of the suspicionless stop and search authorisation will, in my view, improve the relationship between black and ethnic minority groups and the police. Of course, the phraseology behind that—“where operationally beneficial” in particular—was very carefully considered to sort out this issue.

It is also worth saying that the Home Office now publishes more data than ever before on police powers, including the use of stop and search. As part of the inclusive Britain strategy, the Home Office Race Disparity Unit and Office for National Statistics have worked to improve the way stop and search data is reported and to enable more accurate comparisons to be made between different police force areas. The proposed change on data in this updated code would reflect the power given to the Home Secretary under Section 44 of the Police Act 1996, but this data is collected and published online as part of a statistics bulletin.

The noble Lord, Lord Coaker, asked about protections for children. There are safeguards in this code as well. Children detained will have to have an appropriate adult assigned to represent their best interests.

The noble Lord also asked whether there was a delay—there was. It was supposed to be rolled out on 17 January this year but ended up commencing on 19 April. The reason for that was the difficulty of getting the training in place in time. The four pilot areas are the West Midlands, Thames Valley, Merseyside and Sussex.

With that, I think I have answered the questions that were asked of me. I reiterate that the updated and new PACE codes of practice will help the police to use their powers in a proportionate and consistent manner in accordance with the primary legislation. As such, I commend this order to the Committee and thank both noble Lords for their support.

Immigration (Health Charge) (Amendment) Order 2023

Lord Coaker Excerpts

Tuesday 12th December 2023 Grand Committee

[Lord Coaker (Lab)]

My Lords, as always, this SI is important. Many of the debates that led to the current system took place elsewhere. We need to seek to understand the instruments that are then put in place to make a reality of other government policies. I agree with much of what the noble Baroness, Lady Brinton, helpfully outlined. I also thank the Minister for his introduction.

This SI increases the charge payable by some migrants to access the NHS. The headline figure, for those people paying the main rate, will increase from £624 to £1,035—a large increase of 66%, compared with the 25% rise in NHS costs over the same period. There is a reduced rate for those under the age of 18, which increases from £470 to £776. Like the noble Baroness, we do not necessarily oppose the increases, or an increase, but what is the Government’s justification for such a large increase, which is well above the NHS rate of inflation over the same period? We are comparing 25% to 66%, which is quite a significant disparity. The Minister will need to justify to the Committee why the Government have seen fit to do that. Can the Minister say any more than he has done about what happens to those who cannot afford the charge? Can he confirm that it is a one-off charge, not an ongoing one? I assume it is, but I would be interested in that being clarified.

What updated evidence are the Government using to justify this figure? What assumptions do they use in their papers regarding the use of services argument? The Government explain that they believe the increase will help to deter some migrants applying to enter or remain in the UK. Again, where is the evidence for that? Is it the right policy to use health charges to try to deter migrants coming into the UK? If the Government believe that it will deter them, have they made any estimates of the numbers that will be deterred, or is it just a statement that some will be deterred without any estimate? Do any working papers in the Home Office give us an assessment or understanding of what that will be? The noble Baroness asked some of these questions. Have the Government made any assessment of the impact of these changes on business?

What is the Government’s answer to the Secondary Legislation Scrutiny Committee’s criticism that they used questionable methodology in determining and justifying the increase? Why is that committee wrong in its assessment of some of the methodology the Government used?

It is important to understand the figures. What is the Government’s estimate of the number who pay the charge currently and how much it raises, alongside future projections? I think the Minister said that it currently raises £1.7 billion, if I understood what he said. What is the projected figure over the next period?

The Explanatory Memorandum outlines and clarifies various exemptions. The Minister and the noble Baroness said something about some of the exemptions to paying the health charge. Can the Minister outline for the record what some of these clarifications and exemptions mean? How many actually receive any sort of waiver? As the noble Baroness pointed out, it appears from the charts as though hardly anybody receives a waiver or an exemption. Some clarity on that would be helpful.

Paragraph 2.2 of the Explanatory Memorandum talks about a number of different things that it would be helpful for us to understand. It talks about those on the Ukraine and statelessness immigration routes. I understand what the Ukraine immigration route is, but what exactly is the statelessness immigration route? It then talks about exemptions for “certain NHS workers”. Who are those “certain NHS workers”? Has this changed at all with this instrument—in other words, has the exempted list of certain NHS workers been extended or reduced?

It also talks about exemptions for “specified protection cohorts”. Can the Minister outline what a specified protection cohort is? One of the problems with migration, immigration and asylum is that sometimes it all gets mixed up—including in my own mind. Just to be clear, what is the status of Afghans, those from Hong Kong and others who come here under various schemes?

We have accepted the principle of immigration health charges and do not necessarily oppose this SI but, as the noble Baroness, Lady Brinton, and I have said, a number of questions need answering. Health charges need to be fair both in the level they are set at and in how they operate. The justification for such a large increase and the operation of the scheme alongside it are of extreme importance, which is why we have put various questions to the Minister.

[Lord Sharpe of Epsom (Con)]

I thank both noble Lords for their contributions to this shortish debate. I will do my very best to answer all their questions and commit to write if there are any that I cannot answer.

Those who move to a new country expect to pay towards healthcare. Countries around the world have a range of systems in place to do this, in line with individual healthcare models. It is right that we continue to prioritise the sustainability of the NHS and that temporary migrants make a financial contribution to NHS services available to them in the UK. Payment of the health charge provides near-comprehensive access to our health service, regardless of the amount of care needed, even for those with pre-existing health conditions.

I shall try to address all the issues raised. The health charge should broadly reflect the cost of treating those who pay it. However, the rates for students and their dependants, applicants to the youth mobility scheme and children under 18 will remain discounted. The increased rate of the health charge is comparable to the cost of private medical insurance here and abroad, which is a common requirement for individuals wishing to migrate to many other countries.

I think both noble Lords referred to the Secondary Legislation Scrutiny Committee. We thank it for considering the order and providing a detailed report on the legislation. Before I go into the methodology, I reassure the Committee that the Government have undertaken robust and detailed analysis of the annual cost to the NHS of treating health charge payers to determine the increased cost of the health charge. Increases to the health charge are based on the most recent data representing charge payers’ use of NHS services, more accurately determining the current cost to the NHS of treating health charge payers. The Government acknowledge the delay in providing responses to the Secondary Legislation Scrutiny Committee. Unfortunately, this was unavoidable, due to factors such as the changes in ministerial teams and the need for assurances of the responses between departments.

I turn to the methodology and the DHSC calculation. As set out by the Chief Secretary to the Treasury on 13 July, the health charge rates have remained unchanged for the last three years, despite high inflation and wider pressures facing the healthcare system. The increases to the charge reflect the higher costs in healthcare budgets since 2020. Additionally, the assumptions for how intensively charge payers use healthcare services in different settings have been revised to use more recent and representative data intended to better reflect migrants’ use of these NHS services. While the health charge is increasing, it is still considerably lower than the comparable average cost per capita of providing healthcare for the average UK resident, which currently stands at approximately £2,700 per person per annum.

I am aware of concerns around the combined cost of the health charge and visa fees and the impact that this may have on families and young people. The draft order maintains the reduced health charge rate for children, but the Government remain clear that migrants must pay the health charge when they make an immigration application and should plan their finances accordingly. The cost of the health charge and application fees are available online and should not come as a surprise. However, it is also recognised that, in some instances, people who are required to pay the health charge may not be able to afford it. In such instances, on family and human rights immigration routes and where it is backed by clear and compelling evidence provided by the individual, the health charge may be waived.

Where a fee waiver application is successful, the application fee and the health charge will be waived. Migrants who are granted a partial fee waiver are required to pay the application fee only; the health charge is waived in full. All the information about fee waiver applications is publicly available on GOV.UK and has been for a long time.

Evidence suggests that migrants are aware of the fee waiver process due to the volumes of migrants on eligible routes utilising fee waiver applications. For example, in the year ending September 2023, there were 46,470 visa fee waiver applications, which I would argue does not constitute “hardly any”. The Government are also committed to supporting vulnerable cohorts; there are a range of exemptions from the payment of the health charge, including for individuals in protected cohorts. That includes asylum seekers, looked-after children and victims of modern slavery and trafficking. This draft order extends the range of exemptions to migrants applying to the statelessness immigration route and to the Ukraine regime. In answer to the question from the noble Lord, Lord Coaker, about the statelessness route, it is basically for migrants who are unable legally to reside in any other country—so very similar to refugees.

[Lord Coaker (Lab)]

The Minister has just correctly defined statelessness and protected cohorts. To those who wrote the Explanatory Memorandum, all this is perfectly obvious, but for people like me and many others who read it, it would be extremely helpful if, instead of putting “protected cohorts”, they could add “such as” and do the same for “statelessness”. It would be helpful if that was done sometimes in an Explanatory Memorandum.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very strong case for footnotes, and I hope that my officials are paying attention to that.

On the questions raised by the noble Baroness, Lady Brinton, about the deterrent effect on migrants, the UK continues to welcome talented individuals from around the world who want to study and work here. It is difficult to isolate the impact of the health charge increase on visa demand, due to the 2020 increase coinciding with the Covid pandemic and EU exit, but evidence from visa applications over the period following the increase to £624 does not suggest any significant impact on application volumes. Visa application volumes are monitored and there remains a substantial demand for visas across the majority of the immigration routes. All fee levels across the immigration system, including the health charge, are kept under review and evaluated where appropriate.

The Government’s science and technology framework sets out 10 key actions to achieve the goal of becoming a science and technology superpower by 2030. The global race for science research, technology and innovation is becoming increasingly competitive. The Government are committed to making the UK the best place in the world to work for top scientists, researchers and innovators, and we are delivering the biggest increase in public R&D investment, including training our next generation of doctoral and post-doctoral RDI talent, having already committed to investing £20 billion in R&D in 2024 and 2025.

Investigatory Powers (Amendment) Bill [HL]

Lord Coaker Excerpts

Committee stage
Monday 11th December 2023 Lords Chamber

Moved by

[Lord Coaker]

1: Clause 2, page 3, leave out lines 24 to 27 and insert—
“(b) the extent to which information contained within the personal data has been made public as a result of steps deliberately taken by the data subject;”Member’s explanatory statement
This amendment would ensure the definition of a low privacy bulk personal dataset is in line with the definition set out in Schedule 10 of the Data Protection Act 2018.

[Lord Coaker (Lab)]

My Lords, before I get to the specifics of my Amendment 1, I will make some general remarks. I thank the Minister and all his officials for their very helpful briefing and the collaborative way in which they have approached the Bill. As he knows, we support the Bill, but we will seek clarification and further information about a number of clauses and the details in them.

It is important for me to say that this is the Committee stage, so some significant details will be explored that will be helpful to us. Indeed, on my own part, there may be one or two misunderstandings as to the actual meaning of certain parts of the Bill. None the less, it is an important Bill and an important step forward for our country and its security; I think we all want to see it be as successful as it can be.

This group of amendments deals with bulk personal datasets. These include personal data where a large majority of people included will not necessarily be relevant to an intelligence investigation. Currently, all BPD warrants must go through a double-lock process of approval via the Secretary of State and then a judicial commissioner, and must be renewed every six months. Agency heads must also perform certain functions associated with the warrant.

As the importance of data-based intelligence grows, the Bill rightly includes several measures to make it easier and quicker to analyse various datasets. Individual BPDs considered to have a low or no expectation of privacy could be approved by intelligence agency heads if urgent or if they fall into a category approved by a judicial commissioner. For urgent cases, judicial commissioners have three days to review the warrant.

BPD warrants will need to be renewed only after 12 months, instead of six, which seems sensible. Some functions can be delegated from heads of agencies to an official while maintaining overall responsibility. The Bill also ensures that third-party BPDs—mostly commercially held data—are regulated similarly to other BPDs. The double lock of the Secretary of State and the judicial commissioner would remain for all BPDs, apart from ones considered urgent by the Secretary of State. For urgent cases, a judicial commissioner would have three days to review the warrant. Again, much of that is very sensible and improves the current situation.

I tabled my amendments in the spirit of probing what the Government mean, and I will ask some questions for clarity. Amendment 1 probes why the definition of low-privacy datasets differs from existing data protection legislation. Being the sort of person I am, yesterday I read the relevant section of the Data Protection Act 2018. It differs from Clause 2, where the Minister lays out:

“Low or no reasonable expectation of privacy”


for authorisations and the various factors to be taken into account. Given that the Data Protection Act also talks about access to data, about intelligence services having to have consent and about intelligence agencies having various conditions applied to them when seeking authorisations to access data, it would be helpful to the Committee to understand which applies to the authorisations and how the various pieces of legislation interact with each other. Otherwise, we have what is included in this Bill as well as what is included in the Data Protection Act 2018. Amendment 1 seeks to understand where and how the two relate to each other, whether one supersedes the other and whether the Data Protection Act is now irrelevant to the authorisations laid out in the Bill. It would be helpful for us to understand that.

--- Later in debate ---

I hope that my rather lengthy explanations—for which I apologise—have provided reassurance to noble Lords. There may be further conversations to be had on certain areas, but I hope that I have given a clear rationale to noble Lords for the Government’s position and that they will not seek to press their amendments.

[Lord Coaker (Lab)]

My Lords, that was an extremely helpful response from the Minister and shows the importance of tabling probing amendment sometimes: to get things read into Hansard that can be referred to.

With respect to the point around children, I would be grateful for the letter to be made available to other Members of the Committee. Again, that was a helpful point and helpful clarification, should it be needed. I also very much agree with him—to show my point about the importance of things being read into Hansard—about my Amendment 17, but it was helpful for the Minister to read into the record the definition of serious crime to be used throughout the Bill, so that there is no ambiguity with respect to that.

I totally agree with what the noble and learned Lord, Lord Hope, said about my Amendment 1. I think the wording in the Bill is better than that contained in Schedule 10 to the Data Protection Act 2018, but I wanted that to be read into the record so that we had it there. I agree with his criticism of my Amendment 1, but the reason I tabled it was exactly to get the point that he made in criticising my amendment, which the Minister reinforced—if the noble and learned Lord understands my logic.

The points made by the noble Lord, Lord Anderson, with respect to Amendment 3 raise an issue. The Minister’s response to that was, “Well, it’s a non-exhaustive list so it’s not necessary, but I’m happy to talk to the noble Lord about it”. One wonders where that will get to. It will be interesting for the Committee to see the outcome of that. I thought that Amendment 3, of all the various amendments, was particularly useful and again drew out whether the factors listed in Clause 2 are the right ones, or whether they need adding to. It was important that the Minister clarified that it is not an exhaustive list.

There is one area that I think may need to be looked at further, as mentioned by my noble friends Lord Murphy and Lord West, and the noble Lord, Lord Carlile, if I understood his remarks properly. We need to clarify the role of the Intelligence and Security Committee. I note the Minister’s reassurances, but what is its role? The clear point of difference between what I would say and what my noble friends Lord Murphy and Lord West and others would say is that we are talking here about parliamentary oversight. The Government have an annual report which goes to the Secretary of State. That is political oversight of a sort but it is not parliamentary oversight. The whole point of the ISC being set up was to give parliamentary oversight to all these sorts of matters. We have a Bill before us called the Investigatory Powers (Amendment) Bill, which deals with all sorts of issues of national security and the powers that the intelligence agencies and others should have on our behalf. It is only right and proper that the Intelligence and Security Committee should have a role that is properly defined within the legislation before us. That is one aspect that I need to reflect on and discuss with other Members of your Lordships’ House and with my noble friend Lord West, as our member of that committee.

That is the one area where, to be honest, I was not satisfied with what the Minister had to say. Notwithstanding Amendment 3, and all the other points made to the noble Lord, Lord Fox, and many others, the definitions the Minister has helped clarify and the various ways he has sought to ensure that people understand the Government’s intent have been extremely helpful to the Committee. With that, I seek leave to withdraw the amendment.

Amendment 1 withdrawn.

UK-Rwanda Partnership

Lord Coaker Excerpts

Thursday 7th December 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, here we are—emergency legislation in three weeks, emergency press conferences and an emergency reshuffle. I ask the noble Lord, Lord Sharpe, if he is happy to be taking this legislation through your Lordships’ House. A Home Secretary has gone, saying the Bill does not go far enough; the noble Lord’s colleague—until 24 hours ago—resigned, saying it is doomed, describing it as

“a triumph of hope over experience”;

and the noble Lord, Lord Murray, is deafening with his silence. How on earth have we reached the situation where three Home Secretaries have gone to Rwanda but not a single asylum seeker? Which side of the open warfare in our governing party is the noble Lord on? Is it “too soft”, “too draconian”, “it won’t work” or even “who knows”, because I do not know and I do not think anyone else does? The way we are going, the former Home Secretary may be right that the Government are heading into an even more catastrophic situation.

This is the third Bill on channel crossings in two years. Why will this one work? How much have we spent so far on all of this, and how much is the budget? The Government refuse to say. It is apparently supposed to be published in an annual statement. Should we not be given some figures now on the anticipated budget?

Can the noble Lord confirm that the Government ended up being lectured by the Rwandan Government about not breaking international law, with the Prime Minister even telling the 1922 Committee last night that this is why he could not go further by not leaving the ECHR because the Rwandan Government would not have it? Can the noble Lord detail the exact legal position enshrined in the Bill with respect to the Human Rights Act and the ECHR? Can the noble Lord confirm that it is still the case under this legislation that an individual will still be able to challenge an asylum decision in the courts?

Given the central importance the Government have attached to Rwanda, can the noble Lord give us some numbers? Is all of this for a scheme that will likely cover less than 1% of the people who arrive here to claim asylum? How many people are going to be covered? The treaty itself says that capacity is limited in Rwanda, with the Court of Appeal saying it would be 100, and that talk of thousands was political hyperbole. Can the noble Lord inform your Lordships how many it is?

On the BBC this morning, no Minister could be found for the “Today” programme. I do not know whether they asked the noble Lord, Lord Sharpe, but certainly nobody was available for the 8.10 flagship interview. Perhaps it is a good job. The former Home Secretary was available, by the way, and appeared and gave her views very forcefully. On BBC TV, the Cabinet Minister, Chris Heaton-Harris, was asked if Britain could end up receiving Rwandan refugees before it deports anyone there. He answered, “I honestly do not know the answer to that question”. Perhaps the noble Lord will be able to tell us.

We need to clear the asylum backlog, go after criminal gangs, tackle problems at the source and come to new arrangements with our European neighbours. Does the noble Lord agree with me that, on this issue of the channel crossings that we all wish to see resolved, we have public policy chaos and a Government ripped apart by division? The current Home Secretary says that Rwanda is not the be-all and end-all. Well, that is not what the reality is for the noble Lord. He will be faced with arguments, including, I suggest, in your Lordships’ House, around whether we have a full-fat solution, a semi-skimmed solution or a skimmed solution. Perhaps the noble Lord can tell us which brand of milk he thinks the treaty should actually be.

The country deserves better than this from its Government. The people deserve better than this. Real problems deserve real solutions based on competence, human rights and respect for international law. The noble Lord has had to come today to defend a policy rubbished by his boss, as we know. We have utter chaos, and that is in no one’s interests. This morning, we had a Prime Minister pleading for understanding and support, coming up with the brilliant policy initiative that the way to solve this problem is not to have one Minister but two: one for legal migration and one for illegal migration. I wonder which member of the No. 10 Policy Unit came up with that idea, and whether the noble Lord himself was consulted about that as a solution to the problems.

The plain fact of the matter is that this is real chaos. We have a Rwanda policy that, in the words of their own former Ministers, is doomed and unworkable. Our nation needs and deserves better. There is no sign this Government will be able to deliver it.

[Lord German (LD)]

My Lords, there is no doubt that this is a mess. It is a mess in which the Government have written themselves a project so bad that we are ending up with an ineffective, expensive and unworkable policy which lacks in human decency. What we should be receiving is a Government that give us a workable solution which is speedy, effective and humane. Adding to that, and worse, it is now pitting the Government against our courts. This is a dangerous path to follow. It risks our freedoms and liberties under the law against excessive overreach from Government.

Disapplying legal protections to a specific group is a threat to anyone who may need the protection of a judge in future. Human Rights are universal: either you have them or you do not. If you take them away from one group of people, they are no longer human rights; they are rights for some humans. It is a dangerous, slippery slope when the Government seek to disapply them to asylum seekers. Which group of people out of favour with the Government will be next?

In effect, we are being asked to believe that the facts established by the Supreme Court are now wrong—in essence, that black is white. When the Supreme Court ruled unanimously that Rwanda was unsafe, based on a whole range of facts, but said that at some stage in future things might be different, there was no expectation that this could be achieved by last Monday. One simple line taken from the Government’s Statement proves just that:

“Rwanda will introduce a strengthened end-to-end asylum system”.


It does not say “has introduced” but “will introduce”. The fact will be demonstrated by seeing a new system in place, not simply by producing a statement of expectation. The Statement is simply incorrect in stating that these Supreme Court matters are “concerns”. They are not; they are facts. That is what our highest court ruled on: the facts. Will the Minister acknowledge that the Supreme Court ruled on the basis of facts?

Let us have some facts. By when, exactly, will Rwanda have introduced a strengthened end-to-end asylum system that meets all the international treaties, laws and rules to which the United Kingdom has signed up? What will be the cost of the creation of a new, specialist asylum appeals tribunal in Rwanda and who will meet it? What will be the ongoing annual costs of the running of the tribunal, including the salaries of judges from across the Commonwealth?

How much are the UK Government setting aside for paying for the provision of legal services to asylum seekers in Rwanda? How will the judges be selected? How can we be assured that the judges will be mindful and live to the protection rights of people with protected characteristics—for example, sexual orientation, women who have experienced gender-based violence, religion or race?

There is an alternative to this unworkable, expensive and inhumane policy. We need an effective asylum system where decisions are made swiftly and accurately. We need effective, humane removals of those whose asylum claim is refused. We need a range of workable safe routes so that people who need protection can get to the United Kingdom safely, including an enhanced resettlement scheme, a humanitarian visa and a more effective family reunion route. There is an alternative.

Strikes (Minimum Service Levels: Border Security) Regulations 2023

Lord Coaker Excerpts

Wednesday 6th December 2023 Lords Chamber

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

My Lords, maintaining services at our borders is essential to our security and prosperity as a nation. We depend on skilled professionals to ensure that, 24 hours a day, 365 days a year, our borders are strong and effective. The Government assess that, in the event of strike action by those charged with securing our borders, there are significant risks to the safety of our communities. Criminals may seek to take advantage of strike action to enter our country or to move illicit commodities through our ports and airports. People smugglers may seek to exploit gaps in our patrol activity to land illegal migrants on our shores.

We are focused on making the hard but necessary long-term decisions to deliver the change the country needs to put the United Kingdom on the right path for the future. It is for this reason that the Government have decided to include border security within the scope of the Strikes (Minimum Service Levels) Act 2023. These new regulations have two purposes: to make provision for minimum service levels in relation to strikes as respect to relevant border security services and to define those relevant border security services.

The regulations set out that border security should be provided at a level that means they are no less effective than if a strike were not taking place. The regulations also set out that passport services as are necessary in the interests of national security are provided as they would be if the strike were not taking place on that day. The relevant border services that must be provided are now defined as

“the examination of persons arriving in or leaving the UK; the examination of goods imported to or exported from the UK; the examination of goods entered for exportation or brought to any place in the UK for exportation; the patrol of … ports … the sea and other waters within the seaward limits of the territorial sea adjacent to the UK; the collection and dissemination of intelligence for these purposes; the direction and control of”

those engaged in providing those services; and such passport services as may be necessary for national security reasons.

As the employer for Border Force and HM Passport Office, it will be the Home Office that issues work notices to trade unions during strike action. A work notice is, to recap, a notice given in writing that identifies the members of the workforce who are required to work on a strike day and the work they are required to do to deliver the levels of service as set out in the minimum service regulations. It is important to note that the Act forbids an employer, when setting a work notice, from having regard to whether an employee is a member of a trade union or has taken part in trade union activities or used their services in the past. The trade union must then take reasonable steps to ensure that members of theirs who have been identified in a work notice do not take strike action. If the union fails to take reasonable steps, it may lose its legal protection from damages, claims and injunctions. I will return to that at the end of my speech.

The regulations stipulate that border security services can be provided only by employees of the Home Office, which will mean those who already provide border security services or the relevant passport services required in the interests of national security. This means that we will no longer need to rely on outside resource to provide cover. In the past, we have used other civil servants working elsewhere and members of the Armed Forces. We acknowledge and appreciate the efforts of those who have provided cover previously, but this cannot be a long-term solution.

We recognise that restricting the ability to strike, even in the way we are proposing, means that we need to ensure that compensatory measures are in place. The Government are therefore committing that they will agree to engage in conciliation for national disputes in relation to border security, where the relevant unions agree that this would be helpful. This is a significant and appropriate commitment that balances the ability of workers to strike with the safeguarding of our borders.

I note the amendment tabled by the noble Lord, Lord Coaker. I respectfully say that we have responded to the recommendations of the Delegated Powers and Regulatory Reform Committee. Its 27th Report of Session 2022-23, which was published on 2 March 2023, made two recommendations on what became the Strikes (Minimum Services Levels) Act. The first was that

“the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels … is likely to be exercised”.

The second was that

“the House may wish to press the Minister to provide an explanation of how the power to define ‘relevant services’ … is likely to be exercised”.

I respectfully submit that both recommendations have now been addressed through the regulations and in this debate.

I also respectfully disagree that the regulations are too prohibitive. This brings me to the Motion tabled by the noble Baroness, Lady Bennett, and to the findings of the Secondary Legislation Scrutiny Committee in its 3rd Report of the Session 2023-24, published on 23 November 2023. As I have set out, we are bringing forward these regulations to establish a fair balance between the ability to strike and enabling people to go about their daily life in the confidence that on a strike day our borders will still be secure.

Our recent experience of industrial action saw staffing levels of around 70% to 75% being delivered by Border Force. This enabled Border Force to carry out the essential functions listed in the regulations. Our estimate of the impact on HM Passport Office is that around a dozen or so personnel may be required to work. We none the less recognise that these new measures may mean that members of staff may not be able to strike. It is for that reason that we have made a commitment regarding conciliation, and I think this commitment is significant.

Turning to the question of trade unions’ liabilities, I would simply say that unions that continue to comply with trade union law are completely unaffected by this change, and therefore the issue of liability will not arise.

I call on Members of your Lordships’ House to reject the amendment tabled by the noble Lord, Lord Coaker, and the Motion tabled by the noble Baroness, Lady Bennett. I beg to move.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his introduction, although I disagree with much of it. We have heard in earlier debates from my noble friends Lady Merron and Lord Collins the general view that we have about these regulations. The law is not a substitute for proper negotiation. It is the failure of the Government to negotiate properly and reasonably with so many groups of workers that has led to this. Instead of addressing this failure of public policy, the Government have sought to undermine the right of people to take industrial action to protect their interests. Indeed, on the contrary, following the Act, regulations are put in place with huge consequences for unions and their members and workers if they fall foul of often ill-defined and ambiguous legislation. We will repeal them if we win the next election and will have no hesitation in doing so. The legislation that was outlined by the Minister to the Delegated Powers and Regulatory Reform Committee should properly have been in primary legislation, which is one of the points that the committee made and which the Minister did not answer or point out in his remarks.

I turn briefly to the regulations with respect to border security and the reasons we regret them. Can the Minister confirm that because the regulations involve employment law, they do not apply to Northern Ireland? It is important to understand what assessment the Government have made of a situation in which there was to be industrial action in Britain under these regulations but not in Northern Ireland, where, presumably, existing law applies.

Can the Minister also explain why the Explanatory Memorandum spoke—as the Minister did here—of the impacts on UK immigration, UK territorial waters and UK border security staff? He will know that the UK includes Northern Ireland but these regulations are about Britain and so do not include Northern Ireland. Can he explain why the Home Office cannot distinguish between the terminology of the UK and the terminology of Britain with respect to these regulations?

Can the Minister explain why the measures have been extended to cover HM Passport Office? This appears, whatever the Minister says, to be a last-minute addition to the legislation, going beyond the earlier indications and debates that were had with respect to the Act—hence the amendment that I have put. The impact assessment says that a small number of HM Passport Office staff—the Minister talked of 12—will be affected. Can he outline what roles that will be and whether the passport staff in Belfast, in Northern Ireland, will be affected? Presumably they will not, so what will happen? When was the decision made to extend the regulations to HM Passport Office? Why were the trade unions not consulted about that change?

The border security regulations allow an employer to serve a work notice that requires border services to be

“no less effective than they would be if the strike were not taking place on that day”.

—see Regulation 3(1). The very real question that results, as trade unions point out, is to what extent there is any reason for anyone to strike if it is not supposed to have any impact at all. How is that proportionate? That is why we regret these regulations before us.

The TUC points out how strict this short but powerful set of regulations with respect to border security is. The Government say that, to ensure the minimum service levels that they have outlined, this SI necessitates 70% to 75% of border staff working. How on earth is it proportionate to effectively deny three-quarters of the workforce the right to strike? How on earth is it reasonable or proportionate that, in many cases, only one in four workers in border security will have the right to strike? Hence, I tabled the regret amendment.

In many small ports, because of the minimum service levels, there will effectively be no right to strike at all. Can the Minister also explain, notwithstanding the points he has made about conciliation, what the conciliation process will involve? How will it actually work? Will there be frank and open discussions with the trade unions about it to ensure that a system is put in place that works?

The Government make considerable play of doing this in the interests of the public, but millions of trade union members are members of the public. Is the noble Lord sure that these regulations, interfering with the right to strike to such an extent, are consistent with our legal duties? Of course, we rightly praise our border staff and others for the important and crucial work that they do. However, in wage negotiations and conditions-of-service talks, they have been disappointed that this praise is not turned into acceptable offers when it comes to their pay and conditions. In those circumstances, and subject to a ballot, trade unions should have the right to strike. The proposed restrictions are not proportionate and can never replace fair and open negotiations based on mutual respect, even when that is difficult. It is for those reasons that I have tabled my amendment to the Motion.

Amendment to the Motion

Moved by

--- Later in debate ---

Moved by

[Lord Coaker]

As an amendment to the motion in the name of Lord Sharpe of Epsom, at end to insert “but that this House regrets that the draft Regulations contain policy detail that was not included in primary legislation, contrary to the recommendation of the Delegated Powers and Regulatory Reform Committee; and considers, given that the impact assessment acknowledges that some workers’ right to take industrial action will be affected or denied, that they are too prohibitive.”

[Lord Coaker (Lab)]

My Lords, the noble Lord, Lord Sharpe, says that it is not prohibitive to stop three-quarters of a workforce from taking strike action. I leave that on the table for others to judge and come to their own conclusions about, but I think it is too prohibitive and disproportionate.

The noble Lord, Lord McCrea, raised a serious point, and it is good that the noble Lord, Lord Caine, is here. The Explanatory Memorandum to these regulations talks about the United Kingdom all the way through, yet the Act talks about the regulations applying only to England, Scotland and Wales—Britain, not the UK. Even the Minister talked about UK territorial waters and UK immigration. As the noble Lord, Lord McCrea, others in Northern Ireland and the noble Lord, Lord Caine, will tell him, you get steeped in this—you cannot talk about Britain in legislation and then include Northern Ireland. That is not acceptable.

In partially responding to this, the Minister said that he would write a letter. This is a really serious point, as it means that we cannot have answers about the Passport Office in Belfast. He made all sorts of points about immigration, trafficking, drugs, et cetera; there may be very good reasons why this does not apply to Northern Ireland, but you cannot have an Explanatory Memorandum that talks about the UK and then say that it is applicable only to England, Scotland and Wales. That is a really big failing on the Government’s part. It should not happen and must not happen again. I beg leave to test the opinion of the House on my regret amendment.