Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Dubs Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

I am very grateful to the broad coalition of noble Lords who are clearly against the use of child spies. All the amendments are cross-party, which should give the Government some pause for thought. If there is so much feeling about this issue among a mixed bunch of Peers, I think they should go a little further than their attempt with Amendment 26. Therefore, I urge the noble Lord, Lord Young, to push his amendment to a vote, but I shall understand if he objects to doing that, in which case I shall support Amendment 24.

[Lord Dubs (Lab) [V]]

My Lords, it is a privilege to take part in the debate on this amendment, with the many excellent speeches that we have had so far.

First, I thank the Minister for having arranged for my noble friend Lady Massey and me to meet some of her officials and police officers, and for the opportunity to have a long debate about the issues concerning children.

In introducing Amendment 12, the noble Lord, Lord Young, referred to the fact that I changed my mind in Committee, as though that was a very eccentric thing to do. I thought that the point of debates was to persuade other people to change their minds. He is absolutely right: I did change my mind—from a relative position to an absolute position on children not being used as CHIS—so I thank him for referring to that.

My noble friend Lady Massey set out the ground extremely well, competently and coherently. She and I are both members of the Joint Committee on Human Rights and, in a way, she has spoken for me as well, so I shall make only a few brief comments in support. I also welcomed the very powerful speech of the noble Baroness, Lady Kidron, although her amendment does not go as far as I would like. My preference is to fully support the amendment of the noble Lord, Lord Young.

I have three points to make. The first concerns the safety and well-being of children, the second is to do with mental health and the third concerns informed consent, and I want to say a brief word about each.

First, it is slightly curious that public authorities whose job it is to protect the welfare, well-being and safety of children should also, in a sense, be complicit in authorising or encouraging them to commit criminal offences. I fear that involving children as CHIS can damage their welfare and safety, and cause them harm in their lives many years later. We are subjecting them to enormous pressures by doing this and I am not happy about it.

Secondly, as an extension of that argument, there is the question of mental health. We are talking about young people who must, in the main, be extremely vulnerable. Very often they have deprived backgrounds, they have not had much going for them and they have suffered physically and emotionally. The mental health considerations seem sufficiently serious for us to say that we do not want to use children in this way.

Thirdly, there is the question of informed consent. My understanding is that, before anybody can become a CHIS, they have to give their informed consent. I just wonder whether a young person who is vulnerable, already involved in criminality, not sure of themselves in life and possibly with mental health problems can give their informed consent to taking part in these activities. How can a young person understand the full implications of going along with this? It seems a crucial step and they could be damaged for many years; indeed, they might never recover. It is a dangerous thing to ask them to do and I would prefer that we did not do so.

That is why my first preference, if I may put it that way, is for the amendment in the name of the noble Lord, Lord Young. My second preference is for Amendment 14, in the name of my noble friend Lady Massey. My third preference is to support the noble Baroness, Lady Kidron. I do not think that we can leave the Bill as it is. It is unacceptable that we should subject young people to such a dangerous situation. It is not a healthy or proper thing to do, and I hope that we will agree to one of the amendments—preferably that of the noble Lord, Lord Young.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, this is a fascinating debate. I thank the Minister for bringing forward her Amendment 26 and for the opportunity that she gave me to speak to professionals, particularly the police, operating in this field.

My starting point is obviously the same as that of others: Article 3 of the United Nations Convention on the Rights of the Child and the protection of the interests of the child. I find myself in agreement with paragraph 63 of the report of the Joint Committee on Human Rights. It concludes:

“The Bill must be amended to exclude children or”—


I agree in particular with this part—

“to make clear that children can only be authorised to commit criminal offences in the most exceptional circumstances.”

Of course, it is entirely regrettable that we might have to rely on children—those below the age of 18 and sometimes, as we heard in Committee and today, over the age of 12—in any shape or form. However, I remember from the limited time I spent in practice at the Scottish Bar that it was impressed on me that there are such circumstances. For the purposes of today’s debate, there are two separate circumstances that we need to focus on.

One is where a child might be asked to put themselves in a situation of risk—a situation that would rely even more on their consent than might otherwise be the case. But the situation that I think we should especially cover is where a child might already be in a situation of great risk to themselves or to their near family, particularly if they are migrants and are at risk of exploitation through trafficking for whatever reason—for example, modern-day slavery and sexual exploitation. I do not believe that currently the voices of those children are always heard. If they seek out a situation where they are prepared to keep themselves in harm’s way for the purposes of bringing evidence to the police and other authorities to enable and facilitate a successful prosecution, it would be absolutely mad for them to extricate themselves from that situation, provided they are given protections. Therefore, reluctantly, I accept that there are situations where children under the age of 18, and sometimes as young as 12, are already at risk but are doing themselves, their immediate peers, who might also be in that position, and indeed the justice system a great service by empowering evidence to be brought forward and to bring a successful prosecution.

I know that my noble friend Lord Young has put an enormous amount of work into his amendments, but the problem that I have—I think he recognises this himself—is that Amendment 12 is simply too prescriptive both on age, as it would remove this cohort of children between 12 and 18 completely, and in that it does not enable them to be used as CHIS in limited circumstances, provided the protections are there. I do not believe that Amendments 12, 13 and 14 lend themselves to the situation that already exists and which I would like to see continue, provided the protections are in place.

That brings me to Amendments 24 and 26. Here, I am entirely in the hands of my noble friend the Minister, who will need to convince me that her Amendment 26 is as good as Amendment 24 in providing protections in the situation which I have set out and which I would like to see put in place in these circumstances. Normally, I would be minded to support Amendment 26, but I will be unable to do so unless she is unable to convince me that the protections clearly set out in Amendment 24 will be in place.

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[Lord Bruce of Bennachie (LD) [V]]

My Lords, I have not intervened on the Bill to date. It has been well-served by the wide range of expertise across the House. I am grateful to the noble Baroness, Lady Massey, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Rosser, for their coherent explanations of support for this amendment. My brief intervention now is in the light of the Scottish Government’s current withholding of consent to the Bill. I appreciate that the first response to that action might be to dismiss it, as it is consistent with the Scottish Government’s reaction to other consent issues.

However, while the Scottish Justice Minister Humza Yousaf accepts that there is a case for the law, he is concerned that the Bill is drawn too widely and lacks adequate safeguards. His views are entirely consistent with the concerns expressed across the House. He has explained his preference for prior approval by a judicial commissioner, which has been debated and raised responses, although that consideration is still being argued. This amendment, coupled with that which was carried on Monday inserting an expectation of reasonableness, would go some way to addressing these understandable concerns.

It is widely understood and accepted that undercover agents operate to protect the state and its citizens from hostile actions. This necessitates behaviour that, in normal circumstances, might be considered criminal. Both operatives and citizens need to be reassured that actions will be reasonable and proportionate, and that this is not a gratuitous licence. A number of cases where actions were not deemed appropriate have been mentioned in our debates, but so has an understanding that undercover agents carry out vital work that saves lives. The law needs to protect them in their duties—we are talking of the police and Prison Service, in Scotland—and people who might be directly affected by their actions.

It is also clear, as asserted in all contributions to the debate so far, that the Human Rights Act alone is not an adequate safeguard. As an aside, it does not apply to British sovereign bases in Cyprus, for example. The noble and learned Lord, Lord Hope, despite his reservations about some of this amendment’s wording, clearly recognised the need to have human rights issues summarised and incorporated in the legislation. The noble Lord, Lord Rosser, made the same case and the interesting comparison that, as the Human Rights Act is well known, there is no reason for not putting these specific exclusions in the Bill.

As was said by the noble Baroness, Lady Massey, this amendment’s terms are similar to those in the Canadian Security Intelligence Service Act 1985. Can the Minister indicate whether Canada has experienced any problems with this element of its law, which has been in place for some years? After all, to commit murder, to inflict serious injury deliberately or to perpetrate rape, sexual offences, torture or imprisonment is not what we could reasonably expect of our agents.

I understand that, as of today, the Scottish Minister does not yet consider that the Bill is ready for him to recommend, and this amendment alone will not do it. He is still looking for amendments to the Regulation of Investigatory Powers (Scotland) Act 2000. Can the Minister indicate whether the concerns of the Scottish Minister can be met and the Government’s view about those reservations? I do not believe the citizens of the United Kingdom would argue for a lower standard than that set by a close and valued ally and friend, such as Canada. I am sure that the Minister will want to give assurance that the safeguards are adequate and sufficient, and in so doing ensure that this law secures the consent of all parts of the UK.

In conclusion, I can say only that the balance that the Bill is striving for has raised legitimate questions and concerns about a whole range of issues, of which this is just one. The reservations of both the Government and Parliament of Scotland are, I am told in good faith, a desire to ensure that the Bill is structured in a way that meets the objectives of the Government but also the safeguards being sought by Members of this House and the Scottish Parliament. In those circumstances, I hope the Minister can assure us that it will be possible to bridge that gap, because it would surely be far better for the Bill to be passed with the consent of the Scottish Government and the Scottish Parliament than not.

[Lord Dubs (Lab) [V]]

My Lords, I welcome the opportunity to speak to the amendment. I speak, of course, as a member of the Joint Committee on Human Rights, a position I share with my noble friend Lady Massey, and her amendment reflects very effectively the concerns of the committee about this issue—although the committee was, of course, also concerned by a whole range of other aspects of the Bill.

I can be very brief, but it can surely never be right for the state to authorise the gravest of crimes: torture, murder or extremes of sexual violence. That is the basis of this amendment, which I therefore fully support.

The Government have said that if we set limits on the offences to be covered by the Bill, that will risk that agents could be tested by the groups that they have infiltrated—in other words, that they would then challenge the CHIS, if they suspect them to be a CHIS, to commit one of those offences and therefore he or she would be revealed. As has already been said, other countries have the same safeguards: the United States, Australia and Canada. They already place express limits on the crimes CHIS can commit. If that works for the security services in Australia, the United States and Canada, it can surely apply to us.

The Government have said that the limits can be safeguarded by the Human Rights Act. Frankly, that is not certain at all. The Government have been hesitant about the Human Rights Act anyway, and I believe—the Minister may confirm this—that the Human Rights Act does not apply to abuses committed by agents of the Government. There is concern that this aspect of the Bill may be relevant to criminal conduct authorised overseas. That is a very dangerous situation indeed, and again I would welcome the chance to hear from the Minister whether or not that is so.

The Government produced comments on the report of the Joint Committee on Human Rights, and in particular said that we cannot go down the path of Canada, the United States and Australia because they are not under the European Convention on Human Rights and we are. That is not a straightforward argument. Canada has its own version of the European Convention on Human Rights and the United States has its own Bill of Rights, so it would be wrong to say that they are not protected by a human rights convention such as covers us. That is not a very good argument. In any case, in the United States, the FBI, as we are learning from the events of last week, has thousands of agents each year operating within terrorist and mafia groups which pose grave threats to the public, yet the United States places express limits on what crimes the FBI’s covert agents can commit.

The amendment is a proper one; it is a proper safeguard; it is something that those of us who believe in human rights would say ought to be there. We need the extra protection of the amendment: the Human Rights Act itself is not sufficient.

[Lord Cormack (Con) [V]]

My Lords, like the noble and learned Lord, Lord Hope of Craighead, I believe the amendment could be improved; nevertheless, like him, I support it. I support its basic principle. I support what the noble Baroness, Lady Massey of Darwen, said.

I was very glad the noble Lord, Lord Rosser, began by paying tribute to the police and those who keep us safe, following that splendidly spirited speech from the noble Baroness, Lady Manningham-Buller, on Monday, when she talked about the bravery of many who serve in the Secret Service. All that I endorse, but it cannot be right for the state to connive at the committing of heinous crimes: rape, murder or torture. I tabled an amendment in Committee specifically citing those crimes. When I saw the amendment of the noble Baroness, Lady Massey, on the Order Paper, I decided not to resubmit mine because she seemed to have covered it.

The noble and learned Lord, Lord Hope, made a wonderful forensic demolition of the Government’s citing support for resisting amendments such as this from the Human Rights Act. That really does not wash. I am bound to say that, in the various conversations I had with officials in the Home Office—I again thank my noble friend for making them possible—the only area where I felt the defence was very weak was in the opposition to an amendment along these lines. We have heard colleagues cite Canada and Australia, and again surely we cannot say that what has worked for almost 40 years in Canada without any apparent obstacle could not work here.

We are a civilised country that always proclaims its belief in the rule of law, the prime requirement of which is to defend all our citizens—hence this unpleasant but necessary Bill—and I submit to your Lordships that it would be completely wrong not to have a brake on the powers that a CHIS can be given. We have seen in the rather unpleasant stories that have come out in the recent inquiry, where women have been seduced when organisations that do not place the state in danger have been infiltrated, that things can get out of hand. I do not want to be part of any endorsement of the commission of murder, rape or torture. That is why, although I believe the amendment can be improved during ping-pong, if it is put to the vote, I will support it.

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[Lord Cormack (Con) [V]]

My Lords, I first raised this issue at Second Reading and I tabled an amendment in Committee.

I very rarely disagree with my noble friend Lady McIntosh of Pickering, but the logic of her argument is that you cannot tackle crime without giving a multitude of bodies the opportunity to enlist people to commit crime. I just do not accept that. I have deleted the bottom five organisations in the list—the ones on which, as the noble Baroness, Lady Hamwee, said in her admirable introduction, people have focused most attention by asking, “Why are they there?”

I completely understand the argument about police forces and the National Crime Agency, et cetera. Having had conversations with officials in the Home Office and HMRC, I even understand the introduction of HMRC into the Bill, but, for the life of me, I just cannot see why, as the noble Baroness, Lady Chakrabarti, said a moment or two ago, police forces cannot deal with such bodies as the Environment Agency, the Food Standards Agency and the Gambling Commission.

Having a proliferation of bodies that are able to sanction people to commit crimes sends out a very bad signal. We take pride in our police forces and they should of course have the resources necessary to investigate all manner of crimes. People who commit crimes, whether within the orbit of the Environment Agency or the Food Standards Agency, should be brought to justice and punished if they are found guilty. But I just do not see a justification for this long list in the Bill. I very much hope that, when the Minister comes to reply, she will be able to convert and convince me, but I really do not think that she will. Whether I move my amendment to a vote will depend on what I hear, but I give notice that I might.

[Lord Dubs (Lab) [V]]

My Lords, it is a pleasure to follow the noble Lord, particularly as on this occasion, as quite often, I find myself in agreement with him.

When I listened to the noble Baroness, Lady McIntosh, I initially thought that there was something in her argument. Then I pondered again for a moment or two and decided that this was not an acceptable way of going forward, particularly as we could get into the position of mentioning a lot of other agencies and public bodies, all of which might have a similar claim to being included in the Bill as some of these have. It is going too far. When this issue got to the Joint Committee on Human Rights, we were quite puzzled by it all. I noticed that the media—certainly the national newspapers —had fun at the expense of the list.

I do not think that we can justify it. If we said that every public body had the right to be included in the list, that would be absurd. We should confine ourselves to bodies that deal with fighting serious crime and terrorism—major national and security issues. As I said, I think that this has gone too far. When I first heard about the list, I was not inclined to take it too seriously, but then I saw it on page 4 of the Bill. It does not seem to be a good idea, and I very much hope that we will pass one of the amendments that cleans up the list and makes it smaller and more sensible.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Dubs Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

This Bill is very dangerous in its current form. It could be improved today, on Report, without doing harm to its overall scheme or to the underlying intention that Ministers have explained time and again. Amendments 1 and 2 are a very easy and simple way in which to improve the Bill. If we allow it to pass unamended today, with this total advance impunity for agents of the state, a great many of them from all sorts of agencies listed in the Bill, we will open the door to countless abuses of power and scandals in relation to criminality, and abuses of human rights, potentially for many years into the future. That is not something that your Lordships’ House ever wants to do lightly.

[Lord Dubs (Lab) [V]]

My Lords, before I speak to the details of Amendment 3 in my name, I will comment briefly on the speech made by my noble friend Lady Chakrabarti. I am totally with her in saying that there are dangers in this Bill, and some of the amendments are very crucial indeed. I also agree with her that we must always be vigilant to protect the rule of law, human rights and civil liberties. Indeed, she has done that all her life, since the time she ran the organisation Liberty in such an effective manner. I have listened hard to what she has said, and I believe that the most effective safeguards would be some kind of prior oversight to check an organisation before it went ahead. I believe that is probably the most important safeguard. I look forward to debating the amendment to that effect in the next group.

In the meantime, I turn to Amendment 3. Its purpose is to amend the Bill so that victims of criminal conduct carried out under a CCA can access compensation. I speak as a member of the Joint Committee on Human Rights, and I am very much influenced in my contributions to this debate by the conclusions of the committee’s report, which has been widely praised across the House. The report noted that the Bill as introduced was potentially incompatible with human rights legislation, specifying:

“Article 1 ECHR requires the UK to secure the rights of all those within its jurisdiction, including the rights of victims of crime. Where a crime also amounts to a human rights violation, the victim has a right to an effective remedy under Article 13 ECHR. A victim also has an Article 6 right “to have any claim relating to his or her civil rights and obligations brought before a court or tribunal.’”


People may ask at that point about the criminal injuries compensation scheme. I put it this way: since the Bill would authorise criminal conduct lawful for all purposes, it would prevent a victim of authorised crime vindicating their rights by bringing a civil claim for compensation. Seemingly, this would also prevent a claim for compensation under the criminal injuries compensation scheme. This is not a novel proposal. The amendment is very close to the regime in Australia, which provides

“indemnification for any participant who incurs civil liability in the course of an undercover operation”.

The most usual and commonly quoted example, which my noble friend Lady Chakrabarti mentioned, is when a CHIS is driving a getaway car for a gang at high speed and has an accident. Under the Australian regime, the system would provide indemnification in the course of an undercover operation. In other words, in Australia, a civil claim can be brought against the perpetrator by the victim and compensation secured, but the state will then step in to indemnify the perpetrator against his or her losses. The amendment would ensure that the person authorised to carry out criminal conduct would not suffer the consequences of civil liability. It would also ensure that the victim of that conduct would obtain civil redress, while allowing secrecy to be maintained.

This amendment is fully in keeping with the overall intentions of the Bill, but it would provide an important safeguard. Otherwise, individuals will lose out badly through personal injury or by having their car damaged. At present, they are unable to obtain civil redress, and my amendment would put that right. It is an important but straightforward amendment. The principle is easy and I hope that the Government will find their way to accepting it. I beg to move.

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

My Lords, I shall speak to my Amendments 21 and 22, which are intended to elucidate and, if necessary, reinforce the provision for criminal responsibility and civil recourse that already exists under the scheme in the Bill. I will start with criminal responsibility, which is the subject of sub-paragraphs (a) and (b) of Amendment 21.

Sub-paragraph (a) seeks confirmation that if a public officer who authorises a criminal conduct authorisation wilfully neglects to perform his duty, or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust, he should be open to prosecution for misconduct in public office. The Bill team has kindly confirmed to me in correspondence that nothing in the statute rules out the prosecution of an authorising officer for, for example, misconduct in public office if the authorisation was corruptly granted. I hope the Minister can confirm this when she responds. The concept of corruption is not as narrow as it may sound. It was elucidated last month by the Law Commission, in its report on misconduct in public office, as applying to the circumstances

“where a public office holder knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a ‘reasonable person.’”

There is another purpose to sub-paragraph (a): to clarify that a prosecution for misconduct in public office can be brought without the considerable inconvenience of first needing the CCA that was authorised to be declared a nullity. I believe that this follows from the existing text of RIPA and from the Bill. Section 27 of RIPA states that conduct will be lawful if it is authorised and if it is in accordance with the authorisation, but it does not create an immunity for the authorisation of such conduct. Nor is such an immunity created by the new Section 29B(8), which by its own terms is limited to conduct

“authorised by a criminal conduct authorisation”,

not conduct authorising a criminal conduct authorisation. I hope very much that the Minister will be able to offer me this second assurance as well.

Moving on to sub-paragraph (b), I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy. If the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy. I believe, however, that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences if the CCA has first been declared to be a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or indeed a criminal court. The Minister and the Bill team have been extremely helpful in explaining—[Inaudible]— and I believe there is nothing between us on this. I should be grateful if the Minister could confirm, thirdly, that this is the Government’s understanding.

Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect, it seems to me, are the powers vested in judicial commissioners under the Investigatory Powers Act. [Inaudible.]

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Moved by

[Lord Dubs (Lab)]

5: Clause 1, page 2, line 8, at end insert—
“(1A) Authorisations granted under this section require judicial approval in accordance with section 29C.”Member’s explanatory statement
This amendment imposes a requirement for prior judicial approval of CCAs (with provision for urgent cases), and relates to the amendment to Clause 1, page 3, line 16 in the name of Lord Dubs.

[Lord Dubs (Lab) [V]]

My Lords, in moving Amendment 5, I shall speak also to Amendment 23, which is grouped with it. I intend to seek the opinion of the House, unless I get a dramatic concession from the Minister at the end of the debate.

These amendments impose a requirement for prior judicial approval of criminal conduct authorisations, with some provision for urgent cases. I speak as a member of the Joint Committee on Human Rights. Our report, which has been widely applauded in this and previous debates on the Bill, has obviously been very helpful, and I am using a lot of information from it. I am also grateful to Justice, which provided a comprehensive report, with proposals for amendments. I am grateful to the Minister, who arranged for my noble friend Lady Massey and myself to have a briefing with some of the officials and senior police officers. We had a detailed discussion, and although it was directed at amendments relating to children which will be discussed on Wednesday, some of it is nevertheless relevant to the amendments that I am proposing today. I think I may quote from that without pre-empting the discussion about children on Wednesday.

The Government claim that prior judicial authorisation is not necessary because:

“The use of CHIS requires deep expertise and close consideration of the personal qualities of that CHIS, which then enables very precise and safe tasking.”—[Official Report, Commons, 5/10/20; col. 662.]


As I understand it, the Government believe that authorisations are better left to public authorities’ delegated authorising officers, who are, supposedly, more equipped to deal with CHIS than judicial commissioners, who are one step away.

However, the noble Lord, Lord Macdonald, the former Director of Public Prosecutions, who has been quoted more than once in this debate, said:

“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other authority.”


That seems pretty clear.

The use of prior judicial authorisation has, of course, been discussed in the past in relation to RIPA. But in 2016, the European Court of Human Rights held that judicial authorisation

“offers the best guarantees of independence, impartiality and proper procedure.”

This is particularly pertinent to surveillance, which is,

“a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society”.

The court concluded that

“it is in principle desirable to entrust supervisory control to a judge”.

That is part of the basis of this amendment.

Concerns about whether this is feasible do not carry much weight. There is no reason why judicial commissioners could not review CCAs; they are already well-practised in making complex assessments of sensitive material in an independent, detached manner and at short notice, and they are always very senior judicial figures.

The Select Committee looked at all this. It is very clear that the Bill does not provide for any independent scrutiny of criminal conduct authorisations before they are made and acted upon. The report of the Joint Committee on Human Rights noted that, while the process of granting criminal conduct authorisations would be kept under review by the Investigatory Powers Commissioner, his

“role in the oversight of CCAs is entirely ‘after the event’ … nor does the Bill provide for the IPC to be informed of authorisations at the time they are made, so that prompt scrutiny can take place.”

The report further noted:

“The lack of prior independent scrutiny for CCAs under the Bill stands in marked contrast to the procedures in place for other investigatory functions”,


such as police search warrants and phone tapping. The former Director of Public Prosecutions, Sir Ken Macdonald—as he then was—has been quoted several times as saying that:

“Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”


This has been quoted so often it must go in the Oxford Dictionary of Quotations. The argument in favour of judicial approval is there.

I refer to the Pat Finucane case in Northern Ireland—one of a number of cases—which is also mentioned in the report of the Joint Committee on Human Rights. There was a real abuse of powers which under my amendment would, I am pretty sure, have been prevented by a judicial commissioner. That case is very much unfinished business. Indeed, there is a plea, which I fully support, for a full independent review of what happened when Patrick Finucane was murdered by, or with the knowledge of, British agents. That is business for another day but, in the meantime, we have this amendment.

Some of these amendments are so crucial to the working of the Bill that it is difficult not to tread from one into the area of another, but this amendment is fundamental. Prior judicial approval for a CCA is absolutely essential to providing the safeguards which were referred to in the previous debate and which we need before we can allow such a Bill to become law in this country. I beg to move.

[Lord Hain (Lab) [V]]

My Lords, I will speak to Amendment 16 in my name and those of my noble friend Lord Blunkett, a former Home Secretary, the noble Lord, Lord Cormack, and the noble Baroness, Lady Wheatcroft, to each of whom I am grateful. It is a very straightforward amendment that would add confidence to the deployment of state-employed undercover officers by ensuring that each had to be authorised by a Secretary of State in exactly the same way as existing legislation requires for surveillance operations.

My noble friend Lord Blunkett and I both signed hundreds of warrants for surveillance operations under the Regulation of Investigatory Powers Act 2000, which was updated by this Conservative Government in the Investigatory Powers Act 2016, at a time when the noble Baroness, Lady Williams, was a government Minister, even if not in her current role. In other words, she and her Conservative Government re-enacted legislation requiring Secretary of State authorisation for surveillance, and so it is a puzzle to me why Ministers have not accepted this amendment.

The amendment endorses the identical principle for CHIS or undercover officer deployment in a way that would add to public confidence, which has been badly damaged by evidence that led to the current inquiry on undercover officers established by Prime Minister Theresa May and chaired by Sir John Mitting, a former High Court judge. It was established because the Conservative Government—in which the noble Baroness was a Home Office Minister at the time—felt undercover policing had got out of control and needed to be made more accountable.

The abuses so far revealed in the inquiry’s proceedings fully justify the Conservative Government’s decision to launch it. I will mention only several. We have learned that the campaign by the noble Baroness, Lady Lawrence, and her family to discover the truth about her son Stephen’s brutal racist murder was outrageously infiltrated by undercover officers. Why were they not instead targeting the racist criminals responsible for Stephen’s murder? If that deployment had been subject to authorisation by the Home Secretary, would it have happened? I very much doubt it, because surely a question would have been asked of the operational police decision as to why the innocent victims of a vicious racist murder were being targeted and not the criminals responsible.

There are many other examples, including my own personal experience. As confirmed by evidence given to the Mitting inquiry, from 1969 to 1970, a British police or security service officer was at almost every anti-apartheid and anti-racist meeting that I attended, private or public, innocuous and routine, or serious and strategic, such as stopping all white apartheid sports tours and combatting pro-Nazi activity. Why were they not targeting Nazi groups responsible for attacks on black people, Jewish citizens and Muslims?

Why were they not targeting the criminal actions of the apartheid state responsible for, among other things, fire-bombing the London offices of Nelson Mandela’s African National Congress in March 1982 and, in 1970, murdering South African journalist Keith Wallace, who had threatened to expose the apartheid security service operations in the UK? In June 1972, why did they show no interest whatever in discovering who in South Africa’s Bureau of State Security sent me a letter bomb capable of killing me, similar to those that had killed anti-apartheid leaders across the world?

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[Lord Dubs (Lab) [V]]

My Lords, the Minister has already been congratulated on her mastery of the detail. I congratulate her also on her physical and intellectual stamina. It has been quite a tour de force, particularly as I know what other business she has this week and on most days.

As someone who has had no security experience, I have found this a fascinating debate. I had very limited experience when I was a Minister in Northern Ireland. When I first got there, we had to sign extensions to hold people in detention under the terrorism legislation, although that was quickly handed over to judges. That was my primary direct experience, but it gave me an understanding of the security situation in Northern Ireland before and after the ceasefire. However, I bow to the greater experience of those who have strong security experience and indeed those who have strong experience of having—[Inaudible.].

I still believe that there is quite a strong thread of support in the debate for prior judicial authorisation. The “prior” bit has not really been hit on the head, despite the merits of some of the other arguments relating to other amendments. In the circumstances, and without my going through all the arguments—it is much too late for that—I would like to test the opinion of the House.

Immigration Rules: Supported Accommodation

Lord Dubs Excerpts

Thursday 17th December 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I know that my right honourable friend the Home Secretary will take note of, and reflect on, the judgment before making a decision, and I am sure that I will update the House in due course.

[Lord Dubs (Lab) [V]]

My Lords, the Minister will be aware that, under the Dublin III regulations, which come to an end at the end of this month, no child can be returned to the country they came from because that would not be in their best interests. What is to be the position from 1 January?

[Baroness Williams of Trafford (Con)]

My Lords, any cases which are live—as we term them—before 31 December will be dealt with in the ensuing period. As I have said to the noble Lord before, there will be a statement on my right honourable friend the Home Secretary’s ambition for a firm and fair immigration system for the future within three months of Royal Assent to the immigration Bill.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Dubs Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The next speaker on the list, the Lord Bishop of Carlisle, has, sadly, withdrawn, so I call the noble Lord, Lord Dubs.

[Lord Dubs (Lab) [V]]

My Lords, I was originally not going to be present for this debate, and I left the main thrust of the argument to my noble friend Lady Massey. I simply say that I endorse what the Joint Committee on Human Rights has said, and this has set the pattern for many of the debates this evening. I am fully in support of the arguments put forth by my noble friend Lady Massey.

[Baroness Chakrabarti (Lab) [V]]

My Lords, like my noble friend Lord Dubs, I can be short in the light of some outstanding contributions that we have heard from Members of your Lordships’ House. The more I listened to those arguments, the more I was convinced that there needs to be some kind of limit on the nature of criminal conduct that can be authorised with—and I repeat—total advance immunity from criminal liability or civil suit. If in Canada, why not here? It was the noble Lord, Lord Anderson of Ipswich, who dealt with the so-called Sopranos argument on testing with particular dexterity.

--- Later in debate ---

Moved by

[Lord Dubs]

39: Clause 1, page 2, leave out lines 45 to 47 and insert—
“(b) consists in conduct—(i) by the person who is so specified or described as the covert human intelligence source to whom the authorisation relates, or(ii) by another person holding an office, rank or position within the public authority making the criminal conduct authorisation, which assists or encourages criminal conduct by the covert human intelligence source to whom the authorisation relates; and”Member’s explanatory statement
This amendment clarifies who can be authorised to commit criminal offences.

[Lord Dubs (Lab) [V]]

My Lords, so far we have been debating the nature of the criminal offences that may or may not be authorised. Amendment 39 would clarify who can be authorised to commit criminal offences. As I made clear on earlier amendments, I am a member of the Joint Committee on Human Rights, and my contribution to the debate on this amendment stems from the report by that committee. That report has been referred to by many noble Lords and indeed has almost served as the text for some of the debates. That is a credit to the work of the committee, which I think is very positive and influential.

The committee found the Bill’s definition of what amounts to criminal conduct for the purpose of a CCA “unhelpfully obscure”. It noted, in particular, that it includes conduct in relation to a CHIS. The expression “in relation to” is one of those phrases that can mean almost anything and is capable of all sorts of interpretation, narrow and wide. My noble friend Lord Rosser used a similar phrase which was a bit vague in an earlier debate. I repeat that the expression “in relation to” can mean almost anything.

Why are the Government doing this? I will use an American expression that we all know and which I learned many years ago: mission creep. One sets out to do something but inevitably, in trying to get the powers to do that, one expands what one wants to be able to do, sometimes beyond what is reasonable or could have been envisaged at the outset. This amendment relates to what I would call mission creep on the part of those who drafted the Bill.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I say again that each situation will be different, but I understand the noble Lord’s point that if the CHIS is acting as instructed, but the handler has gone beyond where they should have gone, it would be the handler’s authorising officer who would be liable for that activity. There would be an investigation, but at that point, we are talking about a theoretical case. If it was the handler who had acted beyond their purview, the handler would be liable for that handling activity, or the authorising officer. It is late, I am tired, and I have suddenly forgotten my thread.

[Lord Dubs (Lab) [V]]

My Lords, I am grateful to all noble Lords who contributed to the debate. I have to lead with what the Minister said. I feel that her interpretation of the part of the Bill we are talking about was nearer to the spirit of the amendment than the wording of the clause itself. That is why I want to have a look at it. As for what my noble friend Lord Sikka said, I was not aware that a person in the Bill could be a corporate body. I fear he has an important point, but maybe it is not quite in the scope of the Bill. I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

--- Later in debate ---

[Baroness Massey of Darwen (Lab) [V]]

My Lords, I agree with so many of the remarks made today by noble Lords following the powerful and moving opening speech by the noble Lord, Lord Young. I declare my interests as being involved with several voluntary sector organisations and all-party groups for children, and as a rapporteur on children’s rights issues in the Council of Europe.

Amendment 51, in my name and that of my noble friend Lord Dubs, is based on the findings reflected in Chapter 5 of the Joint Committee on Human Rights report on the Bill. The amendment would prohibit the authorisation of criminal conduct by children without specific prior judicial approval. The Bill provides only for the authorisation of criminal conduct by a CHIS and does not make a distinction between adults and children, nor is any distinction drawn between adults and children for the purposes of CCAs within the revised CHIS code of practice. The JCHR report found that:

“It is hard to see how the involvement of children in criminal activity, and certainly serious criminal activity, could comply with the State’s obligations under the HRA and under the UN Convention on the Rights of the Child … in anything other than the most exceptional circumstances. Article 3 UNCRC”,


which has already been quoted by the noble Lord, Lord Young,

“provides that: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’”

The best interests of the child must be at the core of all our concerns.

The JCHR report concludes:

“Deliberately involving children in the commission of criminal offences could only comply with Article 3 UNCRC or Article 8 ECHR in the most exceptional cases.”


The amendment provides protection against the authorisation of criminal conduct by children in unexceptional cases. It would require prior judicial approval before the granting of a CCA in respect of the conduct of a child in the limited circumstances in which judicial approval would be forthcoming—that is, only where the undercover operation is for the purpose of saving lives or preventing serious physical or mental harm.

I want to add some remarks based on my own experiences and interests that extend the issues expressed in the JCHR report. Children are often characterised as “young” under 16, but the UNCRC and the World Health Organization stipulate that anyone under 18 is a child. That puts an extra dimension on things. We also know that children are not a homogeneous group. Some will be vulnerable. As has been said, they may be subject to having been used for all manner of purposes. They are at significant risk already. This is a very important issue.

The UNCRC is clear about the rights of the child in its 42 articles. For example, Article 36 says that children shall be protected from any activities that could harm their development. Article 12 says that the child’s right to a voice when adults are making decisions is paramount. Child refugees have the same rights as children born in that country. Children have the right to get and share information, as long as that information is not damaging to them or others. That applies to all children. I ask the Minister to convince me that sufficient care is given to the stipulation that the best interests of the child are paramount and to provide some examples of how that care works in practice—for example, about who is consulted as to the appropriateness of a child being involved.

I want to repeat the reference that the noble Lord, Lord Young, made to the Children’s Commissioner; he made a very powerful statement. As she recently said, she suggests that she remains to be convinced that there is ever an appropriate situation in which a child should be used as a CHIS. She has called for a full investigation to take place into the use of children in such circumstances and believes that the current legislative framework should be amended to protect children’s rights. I agree totally. Child impact assessments are always useful. Many of us in this House, and in Parliament generally, have been calling for that for some time. Wales has integrated the UNCRC into its legislation and Scotland is discussing a Bill to do so. When will England do the same?

Before Report, will the Minister meet those of us concerned about child rights, including protection, in relation to the Bill? Can she produce reassuring evidence that children are not being exploited? If that evidence is not forthcoming, the amendment will certainly need strengthening.

[Lord Dubs (Lab) [V]]

My Lords, when I originally looked at this Bill and thought about it in relation to children, I felt that there might be some justification for using children as CHIS in the most exceptional circumstances. I am now doing something that is not very fashionable. I am changing my mind in the light of what I have heard in the debate so far, especially from my noble friend Lady Massey and the noble Lord, Lord Young. I now believe that there should be no circumstances in which children should be part of this process. It is wrong and cannot be justified. The highest standards of human rights would be fully met if we said that children should be totally exempt. There should never be any circumstances in which the end would justify the means. I have been persuaded by the argument. Maybe one does not often admit this publicly, but I am prepared to do so here and now.

[Baroness Doocey (LD) [V]]

My Lords, I wish to speak in favour of Amendment 52. I too support the comments made about children by previous speakers.

This amendment seeks to place in law safeguards for young people, for those who have been trafficked and for other vulnerable individuals. There is a real risk to vulnerable adults, as well as to children, because victims of modern slavery and trafficking are not always recognised as such. This amendment puts safeguards in place for them, as well as for minors.

I share the same fundamental concern as the noble Lord, Lord Dubs. Children should not be placed in harm’s way by the state or in the pursuit of any other alleged greater good. It is the job of the state to protect children, not to deploy them as spies.

I want to address directly the argument made on this point by the Minister at Second Reading. She said that, in practice, juveniles are not asked to participate in criminality in which they are not already involved. Surely the fact that children are already involved in crime does not make them any less worthy of protection. We like to say that with rights come responsibilities, but that maxim misunderstands rights. Rights are absolute and children should expect the absolute right to basic protection from this country. That protection should not be contingent on some invented responsibility to help the police by acting as a spy. Children seldom choose to become involved in gangs. Many are vulnerable. Many have been abused. Some are victims of trafficking. Others have been appallingly neglected both by their families and then by the state. It is not right to view them as having chosen a lifestyle of criminality and thereby complicit in their own fate.

Just as the Modern Slavery Act acknowledges that children cannot consent to their own slavery, we should recognise in the Bill that children do not put themselves into these dangerous situations. They should not be asked to take advantage of danger in the interests of police investigations. These young people are at very high risk of long-term physical and emotional harm from the experiences they have already had. Being designated a CHIS puts them at hugely increased risk. I find it indefensible that 16 and 17 year-olds can be brought into this highly dangerous territory of spying for the state with no appropriate adult to help and support them. The age of majority in this country is 18: 16 and 17 year-olds are children and these particular 16 and 17 year-olds are very vulnerable children. It is completely unacceptable for them to be co-opted by the police for spying without the same representation that they would enjoy if they were arrested for some minor offence, such as theft.

The police do a very difficult job. We are all in their debt for protecting us as individuals and as a society. The need to get a result can sometimes blur boundaries in the pursuit of solving a crime or bringing a prosecution. The genre of police drama would scarcely be so rich without the reality that rules can sometimes be bent and occasionally broken.

Security Co-operation

Lord Dubs Excerpts

Wednesday 2nd December 2020 Lords Chamber

Asked by

[Lord Dubs]

To ask Her Majesty’s Government what assessment they have made of the future of security cooperation across Europe from January 2021.

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

My Lords, we will continue to work closely with our European partners to tackle shared security threats, promoting the safety and security of all our citizens. We also continue to work closely with operational partners to ensure that we are ready for a range of possible outcomes at the end of the year. The UK will continue to be a global leader on security and one of the safest countries in the world.

[Lord Dubs (Lab) [V]]

My Lords, does the Minister agree that we are threatened by cybercrime, other forms of serious crime, violent extremism and terrorism and that, if we leave the EU without a sensible deal on security co-operation, we will lose access to data, the European arrest warrant and Europol? On access to data, will she confirm that we use the Schengen Information System 600 million times a year? Surely our membership of the European Court of Justice, which is a government red line, is trivial compared to the need to keep our people safe and save lives in this country.

[Baroness Williams of Trafford (Con)]

We have always said that there would be a mutual loss of capability in the event that the UK no longer had access to SIS II. That is why we have offered to reach an agreement with the EU that delivers a similar capability. The Commission has stated its view that it is not legally possible for a non-Schengen third country to co-operate through SIS II and that a future agreement between the UK and the EU need not provide similar capabilities. We regret this and have maintained our offer to the EU.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Dubs Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[Lord Dubs (Lab) [V]]

My Lords, I am grateful for the way in which the Minister so helpfully explained the Government’s position and made a concession on one of the amendments. Like everyone else, I regret that the debate was split over two days. It gave me the slight advantage that I could read the whole transcript of the first day’s discussion on this amendment, but I am not sure that it has helped me very much in the short contribution I want to make.

We have heard some very impressive contributions indeed to this debate, and I cannot match for a second the enormous legal experience or the experience of our security services, as evidenced by my noble friend Lord Hain, former Secretary of State, and other senior Ministers. All I can do is say that my Amendment 11 stems from the Joint Committee on Human Rights report, which I still believe is a very helpful background to this debate and points the way forward, in ways that are not entirely in line with the speech that the Minister just made.

It seems to me that the nub of the issue in this group of amendments is still whether approval should be prior or after the event, or in real time, as has been said. I cannot help feeling that the argument for prior approval has not been put forward as widely as I would have hoped. We are told that prior approval would prejudice an effective operation. I am really not convinced by that argument—or at least I do not have the experience to understand it fully.

My noble friend Lord Rooker said we are not talking about history. There is a reason some of us mentioned the investigation by the police into the Lawrence family after the racist murder of their son Stephen, and why we are concerned, as my noble friend Lady Chakrabarti said, about the lack of an inquiry into the Finucane case, as announced by the Northern Ireland Secretary yesterday. The reason we cite those two is because they are the two that are in the public domain and that we know about. Other Members of this House have experience of a wider range of cases that, for obvious reasons, they cannot talk about in any detail. I make no apology for saying that, if any one of us in this House had had prior oversight of the investigation into the Lawrence family following the murder of their son, we would all have said, “No, that is unacceptable”. After all, the only point of prior oversight is that it can stop something in its tracks; otherwise, it is no better than after the event. Everybody would have said that that was wrong, and yet it happened.

We all owe a great debt to the security services—they have saved many lives—but now and again, something goes wrong and things are not right. It is because that might happen—very rarely, but it might just happen—that we are concerned about the method of approving this type of activity. That is the argument.

Similarly, with the Pat Finucane case, clearly any of us would have said no. The way that appears to have happened was wrong, and it would not have been allowed. Now we are told that there cannot even be an inquiry into it, for reasons which we will have to look into on another occasion. So I am still worried.

We are dealing with incredibly serious powers: powers to permit criminal activity, which we do not do with any other legislation, as far as I am aware. We are told that this prior approval cannot be given by judges, because judges do not have the insight into human nature that some of the more experienced people would. I do not know very much about judges, although I have had the pleasure of meeting some as colleagues in the House, but I think that, particularly those in criminal law, they have had a great deal of experience of human nature. I would have thought they would be in a good position to make the judgment, as indeed could Secretaries of State, as evidenced by the amendment put forward by my noble friend Lord Hain.

I am not convinced by the arguments against what the human rights committee proposed. I am not convinced that prior approval is not a good idea, whether it is done on the Lord Hain model, the Joint Committee’s model or the Joint Committee’s model as amended by my noble friend Lady Kennedy. All of these are ways of doing it, and I am not convinced that these are not better alternatives than having approval only retrospectively. However, we have had a long debate, and I want to reflect on what has been said before we get to Report. I beg leave to withdraw my amendment.

Amendment 11 withdrawn.

Child Trafficking

Lord Dubs Excerpts

Monday 16th November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I agree that certainty is crucial for anyone who has undergone such a trauma. A discretionary leave to remain provision is already in place. On the question of when a conclusive grant decision is made, this Government are committed to supporting people who have undergone that trauma, but the two do not necessarily go together. Sometimes they do, but we should not conflate immigration with the support needed for victims of modern slavery. They do not necessarily go hand in glove. However, I understand my noble friend’s premise—that people need support when they are most vulnerable.

[Lord Dubs (Lab) [V]]

My Lords, the Minister referred on more than one occasion to the generosity of the British Government in that 75% of unaccompanied child refugees are given a status to remain here, usually asylum status. Does she not agree that the majority of them have been trafficked, and that it would be far better to give them safe and legal routes to the UK rather than having them become victims of traffickers, with all the risks of the dangerous journey across the channel?

[Baroness Williams of Trafford (Con)]

The noble Lord goes to the heart of the problem: traffickers are at the heart of all these awful crimes, some of which result in the deaths of people crossing the channel and suchlike. Safe and legal routes are at the heart of our philosophy, as my right honourable friend the Home Secretary has laid out.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Dubs Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord Dubs (Lab) [V]]

My Lords, I very much agree with the comments about torture that the noble and learned Lord, Lord Hope, just made. I am a member of the Joint Committee on Human Rights, which has just published its report on the Bill, and my comments are based largely on the evidence sessions and the final report.

I say at the outset that it is clearly welcome that the authorisation of criminal conduct by covert human intelligence sources should be put on a statutory footing. The justification is that through covert sources terrorist attempts have been prevented and lives have been saved, class A drugs, firearms and ammunition have been seized, and child sexual exploitation has been thwarted. All that is important, and that is the benefit of this Bill.

On the other hand, there have been some shocking instances of undercover activity in the past which should never be allowed to happen again. For example, there was the murder of Pat Finucane in Northern Ireland with the apparent complicity of undercover agents and, more recently, the surveillance of the Lawrence family after the racist murder of their son Stephen. It is quite unacceptable that a family such as that, victims of a most horrible crime, should be put under police surveillance. There are other incidents in the past, such as during the miners’ strike at the Orgreave coking plant.

As it stands, the Bill leaves open the possibility of serious crimes being committed through the granting of powers to authorise crimes more widely. That risks violating human rights, which surely means we have a responsibility to add many safeguards to the Bill. It should indicate a list of certain types of offences that should simply not be authorised. I am told that, if we had that list—as the Minister said at the outset—it would alert criminals to the way in which they can identify whether there is an undercover person working in their organisation. I think the safeguards can be built in; it has been done elsewhere, such as in the Canadian Security Intelligence Service Act. If it can be done there, we can surely adopt it as well.

I share the concerns about children. Children must surely be part of this covert process only in exceptional circumstances.

Extending authorisations to situations where there are no criminal threats risks unjustified interference in the activities of trade unions and other legitimate activists, and can affect the right to free expression and free assembly. In passing, I mention the criticism that senior members of the Government have made of “activist lawyers”; are they to be put under this sort of surveillance? I hope not.

The Bill will go way beyond the authorisation of criminal conduct by the security and intelligence services and the police. The power to authorise conduct should be restricted to public authorities whose core function is protecting national security and fighting serious crime. That should not include the Environment Agency, HMRC, the DHSC, the FSA, the Gambling Commission and others. It is also unacceptable for the Bill to provide authorisation of crime with fewer safeguards than exist at the moment for phone-tapping or the authorisation of search warrants. Those require a preliminary process, which is surely a safeguard which should be applied to the authorisation of crime. There should be prior judicial approval, except for urgent cases.

Finally, I am concerned about the victims and civil liability. I appreciate why this is a difficult area, but we should at least include provision for the indemnification of victims, who should be able to obtain compensation for losses suffered as a result of authorised crime.

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

Lord Dubs Excerpts

Consideration of Commons amendments
Monday 9th November 2020 Lords Chamber

Motion A1 (as an amendment to Motion A)

[Lord Dubs]

Moved by

At end insert, “and do propose the following amendments to Amendment 4C—

4F: After subsection (5) insert—
“(5A) Until such a time as the report under subsection (5) has been published and either any included recommendations on the position of unaccompanied children under subsection (3)(a) have been implemented or a reason has been given for non-implementation, the Secretary of State must make arrangements for protection claimants who are in a member State after 1 January 2021, and who would have been eligible to enter the United Kingdom under a relevant provision of Regulation (EU) No. 604/2013 if the United Kingdom remained a party to that regulation, to enter the United Kingdom.”

4G: In subsection (6) insert—
““Regulation (EU) No. 604/2013” means Regulation (EU) No. 604/ 2013 of the European Parliament and of the Council including the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast);
“relevant provision” means any of the following articles of Regulation (EU) No. 604/2013— (a) Article 8; (b) Article 9; (c) Article 10; (d) Article 16; (e) Article 17;””

[Lord Dubs (Lab) [V]]

My Lords, I welcome the Minister’s statement and I am grateful for the civil conversations I had with her over the weekend about it. I very much welcome the review that the Government have initiated, and I obviously look forward to seeing the outcome.

I appreciate what the Minister said about the anniversary of Kristallnacht; she also talked about Kindertransport children arriving here. All I would say is that, as one of them, I have always been enormously grateful to this country for the safety and the opportunities it has given me. I only want to achieve for other children coming here in similar circumstances the same sort of opportunities I have had in the United Kingdom.

The purpose of the amendment was to seek assurances that the ending of the family reunion provisions under the Dublin treaty on 31 December would not disadvantage refugee children who were seeking a route to this country. The amendment simply seeks to put in place interim arrangements for refugees seeking to reunite with family members in the UK after the transitional period is over, until the government review is completed, so that there should not be a gap in the provision for refugees seeking to reunite with their families.

Clearly the Minister’s wish was to make it unnecessary for me to pursue my amendment, so let me deal with that in a little detail, although, as I have said, I welcome the Government’s plans to review the whole issue. I remind the House that we are talking about children, many of them in Calais, Dunkirk or on the Greek islands, sleeping rough and at the mercy of traffickers. We have seen the tragic consequences of what the traffickers do to make money while risking the lives of very vulnerable people. It is my belief that the British people are essentially humanitarian, and that the majority of people in this country support our being generous to child refugees—not all, but the majority —so we are not flying in the face of the majority of public opinion in what we do for child refugees.

I listened very hard to t the Minister and I welcome many of the things that she mentioned. Let me put three questions to her. If there are to be changes in the Immigration Rules—maybe there are not, but if there are—could the Minister arrange for these first to be published in draft form, so that we have the ability to suggest possible changes? My understanding is that normally Immigration Rules are like subordinate legislation, and we cannot simply amend them—we can either reject or accept them.

Therefore, the possibility of influencing changes in the Immigration Rules by having them first published in draft form would be a sensible measure, and I hope the Minister will agree. I believe it has been done before on occasion. We do not want to be in the position of having to either accept or reject them without having first had the chance to debate and, possibly, influence them. If these changes to the Immigration Rules are to happen, I imagine they have to happen by 1 January 202, to give effect to the policies that the Minister just described.

Secondly, the Minister referred to policy guidance to give effect to the Immigration Rules. Obviously, I welcome that, but can it be published in due course—that is, before the end of December—so that we can see the nature of the guidance? The difficulty is that the Immigration Rules are more restrictive than the Dublin treaty provisions. The problem is whether what the Minister said will enable an element of flexibility in the interpretation of the Immigration Rules by officials to be achieved. If that can be done, all well and good.

I hope the Minister will indicate that the Government’s aim is that no child should be disadvantaged by any restrictions in the Immigration Rules tighter than those contained in the Dublin treaty. If the Minister can do that by the end of December, we have a positive way forward for the interim, until the Government’s review is completed, when some of these discussions can happen again. I beg to move.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The following Members in the Chamber have indicated that they wish to speak: the noble Baroness, Lady Neville-Rolfe, and the right reverend Prelate the Bishop of Southwark.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. The gap was mentioned. I hope that I outlined in my speech the substantial number of routes available, whatever people’s circumstances, to apply to come here and seek our refuge and asylum.

The noble Lord, Lord Dubs, asked me three specific questions. The first was whether, if there are changes to the Immigration Rules, we can publish them in draft form. The answer is yes. He asked whether we could publish the guidance before 31 December. I said in my speech and will reiterate that I will ensure that the guidance reflects the position and update it if necessary. I would be happy to update it if changes are needed by 31 December. I am also happy to take his views on the review process on board. I think that was it from him so, in a nutshell, I am happy to do all those things.

My noble friend Lady Neville-Rolfe stressed the importance of safe and legal routes, not the child trafficking that we see at the moment. She talked about the cost of these things being important. Of course it is; it will be considered in due course.

The right reverend Prelate the Bishop of Southwark talked about Dublin ending and routes closing down. I have explained that, as we are leaving the European Union, Dublin will come to an end, but we will not close any of our existing routes. Just to illustrate some of the numbers, as I mentioned in my speech, we issued 6,320 family reunion visas in the year ending June 2020, which contrasts with 532 family reunion transfers under Articles 8, 9 and 10 of Dublin. All the routes that I set out earlier are and will continue to be in force.

The noble Lord, Lord Alton, talked about children who are dying, trafficked and missing, and the criminal gangs who exploit them. I could not agree with him more, but this exists as Dublin does, so the safe and legal routes are absolutely essential. My right honourable friend the Home Secretary is completely focused on this. I can also confirm this afternoon that the vulnerable persons resettlement scheme will restart as soon as possible. It has to be safe to do so, but it will restart. I have some lines on it but I cannot find them.

The noble Baroness, Lady Hamwee, talked about the review being linked to safe mechanisms. That is why we are doing it: for safe and legal routes. We could not be clearer. She made an interesting point, asking why we are mentioning lives lost and criminals together. We are mentioning them because that is why people die—because criminals encourage them to take dangerous routes across the very dangerous English Channel and other seas. That is why they die. She also asked about the wider timetable, which we will include in the Statement that we are committed to. She asked whether the consultation is wider than just UASCs and, yes, it is. Family reunions for unaccompanied asylum-seeking children is just part of the wider issue. She also talked about getting people to visa application centres. This morning I talked about that issue to my right honourable friend the Immigration Minister, who is looking at it.

I hope that I have demonstrated how the gap will be filled, and have demonstrated my commitment to all the things that the noble Lord, Lord Dubs, has asked of me, and that he can withdraw his amendment.

[Lord Dubs (Lab) [V]]

My Lords, I am grateful to all noble Lords who have contributed to this debate, giving evidence to support the point made by the noble Lord, Lord Alton, that parliamentary debate is a good thing, which clarifies issues and highlights our concerns, and is therefore an essential part of our democratic process.

I will make a few brief comments before getting to the nub of what the Minister said. I believe firmly that, if there are safe and legal routes, fewer people are trafficked, and fewer people want to be trafficked. I heard of a refugee child, I think near Calais, who apparently said: “Does it mean that there will be no safe of getting to the UK after Brexit to join my family?” As Brexit has happened, he probably meant the transition period. Clearly he was concerned that, if there was no way of getting to join his family, he would be forced to do the dangerous thing of crossing the channel. I appreciate that the Minister quoted some numbers, but many of those have come as the result of trafficking. We want a safe and legal route so that children can come without the awful risk to their lives, a proper way of bringing them over without everybody arriving in Kent, which is a burden on the local authorities. However, I am sure that we will scrutinise the Minister’s words very carefully. They will be subject to forensic analysis, to see what the Government are saying.

The Minister did not say that she would publish the guidance but that it would be updated. One argument in favour of publishing it is that the Immigration Rules give officials a lot of discretion, and a concern underlying my amendment is that this discretion has in the past been used against the interests of refugee children. If the guidance ensures what I believe is the main aim of this debate—that no child should be disadvantaged through the ending of the Dublin regulation—then we are there. If the Minister can only assure me that the guidance will be published and that, while it cannot guarantee it in every case, it will aim to ensure that no child will be disadvantaged, I would be persuaded. Can the Minister comment in the middle of my speech?

[Baroness Williams of Trafford (Con)]

I am quite happy to speak now if the noble Lord will take the intervention. He and I spoke last night, when he asked me for that commitment that no child be disadvantaged. Clearly, I cannot speak on every single case that may or may not happen. As I told him last night, I would be lying if I said that I could make a judgment on every case. I hope that I have outlined clearly—although I start to doubt myself, given that some noble Lords have come back on it—that there are clear routes and humanitarian grounds on which we can accept children. Therefore, I hope that through the commitments that I have made to him today, any person who has applied under Dublin will have a route open to them, as long as the sponsor has the relevant status. I hope that that comforts the noble Lord.

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[Lord Dubs (Lab) [V]]

I am grateful to the Minister. We had three conversations yesterday, and I recall her saying that. I take the point, but my niggle or concern is that the interpretation of Immigration Rules will still be with officials, who may not be as generous in their attitude as the Minister is. That is why I am keen to see the guidance. If the officials are going to interpret the Immigration Rules for this interim period in the same spirit as the Minister has addressed the House today, I can rest content.

I am delighted that the Minister said that the vulnerable persons refugee scheme will be revived, as that was a very good scheme as well. If the Minister’s assurance is to be accepted by me—and I think I will accept it—I do so on the understanding that the House will carefully scrutinise what happens, that we shall raise individual cases where we feel that the assurances have not been acted upon, and that we will look to the review and the future legislation—there is another Bill coming next year—to have further scrutiny of the arrangements for unaccompanied child refugees. On that basis, I beg leave to withdraw my amendment.

Motion A1 (as an amendment to Motion A) withdrawn.

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

Lord Dubs Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 21st October 2020 Lords Chamber

Moved by

[Lord Dubs]

At end insert “but do propose Amendment 4B in lieu—

4B: Insert the following new Clause—
“Leave to enter: family unity and claims for asylum
(1) For at least such time as a relevant agreement has not been concluded and implemented, a person to whom this section applies must be granted leave to enter the United Kingdom for the purpose of making a claim for asylum.
(2) This section applies to a person who—
(a) is on the territory of any relevant Member State;
(b) makes an application for leave to enter for the purpose of making a claim for asylum; and
(c) would, had that person made an application for international protection in that Member State, have been eligible for transfer to the United Kingdom under Regulation (EU) No. 604/2013 by reason of a relevant provision if the United Kingdom remained a party to that Regulation.
(3) The Secretary of State shall make arrangements to ensure that applicants receive a decision regarding their application under subsection (2)(b) no later than two months from the date of submission of the application.
(4) A claim for asylum made under subsection (2)(b) must remain pending throughout such time as no decision has been made on it or during which an appeal could be brought within such time as may be prescribed for the bringing of any appeal against a decision made on a claim or during which any such appeal remains pending for the purposes of section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal); and a claim for asylum remains one on which no decision has been made during such time as the claim has been made to the Secretary of State and has not been granted, refused, abandoned or withdrawn.
(5) The Secretary of State must, within six months of the day on which this Act is passed, lay before both Houses of Parliament a strategy for ensuring that unaccompanied children on the territory of a relevant Member State continue to be relocated to the United Kingdom, if it is in the child’s best interests.
(6) For the purposes of this section—
“applicant” means a person who makes an application for leave to enter under this section;
“claim for asylum” means a claim for leave to enter or remain as a refugee or as a person eligible for a grant of humanitarian protection;
“Regulation (EU) No. 604/2013” means Regulation (EU) No. 604/2013 of the European Parliament and of the Council including the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast);
“relevant agreement” means an agreement negotiated by a Minister of the Crown, on behalf of the United Kingdom, with the European Union in accordance with which there is provision for the transfer of a person who has made an application for asylum in a Member State of the European Union to the United Kingdom which is no less extensive than Regulation (EU) No. 604/2013 insofar as that regulation operated to enable the transfer of a person to join a child, sibling, parent or other family member or relative in the United Kingdom before exit day;
“relevant Member State” means a Member State for the purposes of Regulation (EU) No. 604/2013;
“relevant provision” means any of the following articles of Regulation (EU) No. 604/2013—
(a) Article 8;
(b) Article 9;
(c) Article 10;
(d) Article 16;
(e) Article 17.””

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[Lord Dubs (Lab) [V]]

My Lords, in moving the amendment in my name, I shall comment on the Commons reason for rejecting an amendment from this House, which states:

“Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.”


Given the time we spent on the issue and its importance, to say that the technicality of financial privilege is sufficient to dispose of it in the eyes of the Commons, I think falls short of being humanitarian and falls short of respecting the opinions of this House.

When I was in the Commons, there were some colleagues who made themselves experts on parliamentary procedure and were virtually walking Erskine Mays. I have no wish to follow them down that path, but I note the issue of financial privilege seems to occur only when the Government do not like something to do with child refugees. If I can take the House back to 2016, we passed an amendment to the then Immigration Bill; when it got to the Commons the Government used financial privilege as a technical reason, so when it came back to this House we changed the wording and eventually it passed again and the Government accepted it.

--- Later in debate ---

As I was leaving the Home Office today, the Greek Minister for Immigration and Asylum was in the Home Secretary’s office, and I hope that is a clear demonstration of our commitment to these issues. I will also commit, on the back of that, to report back to the House in good time regarding our intentions to make progress in this area. I hope the noble Lord, Lord Dubs, and other noble Lords who have heard my words just now will feel that, at this point, he can withdraw his amendment.

[Lord Dubs (Lab) [V]]

My Lords, I am grateful to the Minister for her explanation and to other noble Lords who supported the amendment.

The Minister referred to the Home Secretary’s commitment that she wants safe and legal routes for family reunion of children. Of course, that is an aspiration, but it has to be made effective, and I am not convinced that anything the Government are doing will actually give effect to the Home Secretary’s commitment. The Minister also said that even after 31 December, the Government will continue to talk to achieve bilateral arrangements. That is well and good, but that is a long way ahead, and the Government have, in the past, given undertakings, and, frankly, nothing much has come of them.

This issue tests our humanity; it tests whether we are willing to do something now, not at some point in the future. It is a test of whether we are a decent, humanitarian country. We are talking about a small number of highly vulnerable people, the majority of whom are children who want to join family here. What could be more humanitarian or more in our traditions than allowing young people to join members of their family who are here and find safety down that path. I beg to test the opinion of the House.