Immigration Bill

Lord Foulkes of Cumnock Excerpts

Thursday 3rd April 2014 Lords Chamber

[Lord Taylor of Holbeach]

That the Bill be now considered further on Report.

[Lord Foulkes of Cumnock (Lab)]

My Lords, before we consider this legislation, perhaps the noble Lord the Leader of the House or the government Chief Whip can explain why we are taking government legislation on a Thursday when we have been given four weeks for Easter and we will not be sitting for a week in which the House of Commons is sitting. Will she confirm that Prorogation will not take place until 21 May, as already announced, and not earlier as rumoured? This House is not here just to consider government legislation; it is here to debate the issues of the day and to hold the Government to account.

[Baroness Anelay of St Johns (Con)]

My Lords, the noble Lord, Lord Foulkes—I will get the pronunciation of his name right in the end. I beg his pardon; as he knows, I have been very punctilious in persuading others of the difference between Faulks, Foulkes and Fookes. The noble Lord raises several questions. First of all, he has been a Member of the House for a very long while. He will therefore know that the Companion sets out very clearly that, from the end of January, Thursdays are used for government business.

[Lord Foulkes of Cumnock]

If necessary.

[Baroness Anelay of St Johns]

So it is of course a time when the Thursday debates come to an end. I have been extremely generous, as the House knows, in giving up government time on Thursdays to have debates. We have had more debates this Session than in any other in living memory. That has been welcomed by this House. On this occasion, we have legislation today at the express request of the opposition Front Bench and it is to accommodate that request that I have enabled legislation today and ensured that there will be no legislation next Wednesday, when debates will take place.

The noble Lord, Lord Foulkes, referred to Prorogation. He will also know that it is a long-standing practice in Parliament that the Prorogation date is not announced until government business has been secured. Therefore, I am afraid that I have to say gently to him that he is wrong to say that the Prorogation date has been announced by anyone—certainly not by me. I am always most cautious to keep to the conventions and the rules of this House. I ask the noble Lord to exercise his patience a little bit longer until I am able to give him accurate information.

Anti-social Behaviour, Crime and Policing Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 14th January 2014 Lords Chamber

Moved by

[Lord Foulkes of Cumnock]

87: After Clause 104, insert the following new Clause—
“Assault on workers in public facing roles
(1) A person, being a member of the public, who assaults a worker—
(a) in the course of that worker’s employment, or(b) by reason of that worker’s employment, commits an offence.(2) No offence is committed—
(a) under subsection (1)(a) unless the person who assaults knows or ought to know that the worker is acting in the course of the worker’s employment;(b) under subsection (1)(b) unless the assault is motivated, in whole or in part, by malice towards the worker by reason of the worker’s employment.(3) In this section—
“worker” means a person whose employment involves dealing with members of the public, to any extent, but only if that employment involves—
(a) being physically present in the same place and at the same time as one or more members of the public; and(b) interacting with those members of the public for the purposes of the employment; or providing a service to either particular members of the public or the public generally,“employment” in this context means any paid or unpaid work whether under a contract, apprenticeship, or otherwise.
(4) Evidence from a single source is sufficient evidence to establish for the purpose of subsection (1) whether a person is a worker.
(5) A person guilty of an offence under this Act is liable, on summary conviction, to imprisonment for a period not exceeding 12 months or to a fine not exceeding level 5 on the standard scale.”

[Lord Foulkes of Cumnock (Lab)]

My Lords, having dealt with important amendments regarding dangerous dogs and even more dangerous firearms, we now come to deal with an equally important matter: assaults on workers who deal with the public. It is in the spirit of the shared basic values and the common sense of this House that I am again tabling the amendment that I tabled in Committee, which I hope will command the support of all Peers, regardless of party.

The amendment sets out to tackle the shocking rate at which our shopkeepers, bus drivers, teachers, nurses and catering staff, to name but a few, are assaulted at work—in their workplace—every year. In 2012, there were 120,000 attacks against retail staff across the United Kingdom, with 51% of retailers reporting being victims of verbal or physical abuse in the past three months. Incidentally, one in five Asians work in shops, so a particular community faces these kinds of assaults.

These assaults are perpetrated against ordinary workers, who are often paid the minimum wage and are carrying out extraordinarily important tasks, such as looking after our old people, transporting our workforce or teaching our children. Such assaults can be particularly traumatic, as victims have no choice but to return to the workplace, unlike the general public. They return to the precise location and to the circumstances of the ordeal they faced. That results in increased anxiety and the understandable fear of such attacks and assaults recurring.

I shall give one example. Kim, a store manager, was attacked by a prolific shoplifter. After her attack, she described how she had,

“no end of sickness because of the stress. I have worked for five years and never had a day off, but now I am asking myself whether it is worth carrying on”.

Our current legal system, however, does not do enough to provide people like Kim with the protection they deserve. Too often, instead—the noble Lord, Lord Hunt, raised this in the previous debate—offenders go virtually unpunished, either receiving a small fine or a suspended sentence.

In order to remedy this, my amendment creates a specific offence of assaulting someone who works with the public in the course of their employment. At present, doing so is simply one of 19 aggravating factors. Currently, the Code for Crown Prosecutors states:

“A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public”.

The Government insist that that helps to ensure that most of these cases are brought to court. Unfortunately, that simply is not the case.

Instead, in far too many instances, because of the laws currently governing assault in the workplace, the police and the CPS seem to be deciding in advance that it is not worth proceeding with these cases of common assault, which is how they are usually categorised, because assailants could end up with as little as a £50 fine. What is the point in pursuing a case if that is the result? Even then, when the CPS does decide to prosecute, it is very rare, in the reported cases that we have, for the aggravating factor that I described earlier of assault on a public-facing worker even to be mentioned in the proceedings.

My amendment would increase prosecutions and help to ensure that sentencing reflects the seriousness of the crime. It would do so by making the assault of a public-facing worker a separate offence, which would consequently elevate the seriousness of the crime in the sentencing guidelines above that of common assault. This in turn would make the range of penalties for offenders higher, thus encouraging a higher number of prosecutions.

I should now like to deal with the criticisms that were levelled by the noble Lord, Lord Taylor, in Committee, although I gather that there has been a change of Ministers—I am not sure whether this is good or bad news, whether I have a softer or harder Minister on this occasion, and only time will tell. First, it was claimed that, due to the existing range of offences relating to criminally violent behaviour, my amendment would further complicate the law and make prosecutions more complex. I must say, in making this argument, the Government totally ignore the existing complexity of the laws governing common assault, an offence which has three categories of harm and culpability and—I do not have 11 fingers—11 factors reducing seriousness. In contrast, my amendment would simplify matters, as a separate offence for assaulting public-faced workers would be easier to determine.

Secondly, in our previous debate, the noble Lord, Lord Taylor, stated:

“I do not consider the proposed changes would mean more prosecutions”.

In making this claim, the noble Lord, Lord Taylor and the Government ignored—I know that the noble and learned Lord, Lord Hope, and others who are interested in Scots law will be particularly interested in this—the impact of similar protective measures for emergency workers in Scotland, which have led both to a decline in such incidents and to more than 1,000 prosecutions. Scotland has shown the way, not on such a wide range as the offence there deals particularly with emergency workers, and has shown that introducing this kind of provision actually works.

Thirdly, the noble Lord, Lord Taylor, asked why such workers should be afforded special protection as opposed to members of the general public. He went on to argue in relation to the special protections rightly given to police officers by the criminal justice system:

“We do not ask of people in their normal employment that they place themselves in positions of danger in dealing with potentially violent incidents. We do ask that of the police”.—[Official Report, 4/12/2013; cols. 259-260.]

That is wrong. For a start, public-facing employees are placed in danger. That is the whole point. They are legally obliged to be there. We expect shopkeepers to challenge under-age purchasers of cigarettes and alcohol—an instruction which, when implemented, results in 30% of all violent and abusive incidents faced by retailers. We make the law saying that under-age people should not be given alcohol and tobacco. Shopkeepers have to implement it, and many of them get assaulted when they are doing so. You can imagine the 15 year-old thugs going into those shops. They may be under age as far as the law is concerned, but they can certainly be very violent towards the retailers.

A further 15% of such incidents occur when shoplifters are challenged—again, when enforcing a law that we have implemented, and a law which the police would enforce if they were there but they are not, so the shopkeeper has to do it. Transport staff are expected to place themselves in harm’s way by challenging all manner of anti-social and illegal behaviour. Noble Lords who travel on London buses, as we do, will know that this happens from time to time.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

The noble Lord is being somewhat disingenuous with the comments I made. The parallel I was drawing was with victims of crime. Of course, there are aggravating circumstances and the Government take them into account. But I was trying to highlight to the noble Lord and to the House that if you ask any victim of crime they will tell you that in the circumstances that he was painting about somebody having to go back to their place of work that the same is true of someone who has been assaulted in the street or at the bus stop. It is our belief that people should be treated according to the law in a fair and just system. I believe that the current law does just that.

[Lord Foulkes of Cumnock]

My Lords, I am genuinely grateful to the Minister for his eloquent and comprehensive reply. It was equally as good as that of the noble Lord, Lord Taylor, on the previous occasion—and very consistent, as the Minister said it would be. I am not questioning his sympathy or the sympathy of the noble Lord, Lord Taylor, in relation to this, but what I am questioning is his unwillingness to act. I suspect that it is because of the bureaucrats rather than because of Ministers. They do not want the bother of all the change that would be necessary.

Perhaps I may deal with the point raised previously by the noble Lord, Lord Condon, which the Minister mentioned. The police are treated separately when dealing with criminals. In education we use the phrase “in loco parentis”, but in this case teachers are acting “in loco custodia”; that is, in place of the police in that they are acting on behalf of the police, and so they should be treated in the same way. I would also say to the noble Baroness, Lady Hamwee, that the question of who is the worker is absolutely clear. The only point in relation to the single source is that the single source is needed to describe a worker. I do not think that we need corrobation in terms of who is a worker in these circumstances.

I have been really encouraged by the support that I have received from the Labour Front Bench. My noble friend Lord Rosser, who has tremendous experience in the transport field, knows and understands the kind of problems that transport workers face. My noble friend Lord Davies of Coity has huge experience as General Secretary of the Union of Shop, Distributive and Allied Workers, and he knows exactly what people face. I welcome particularly the support of the noble and learned Lord, Lord Hope of Craighead, who pointed out that the introduction in Scotland of a special offence in relation to workers in the emergency services has increased the prosecution rate and resulted in a decrease in such offences. Those are powerful arguments from people who have worked in the field and from a former judge in Scotland. I hope that if I have not convinced the Minister, I might have convinced other Members of this House and Members opposite.

The key and most important thing of all is that while of course the general public face dangers—that is incontrovertible—they do not have to return day in and day out to the scene of the crime. These workers do. They have to go back to where the offence took place. That is why they are a special case and it is why we as a House should give them special treatment. It is also why I am moving this amendment today.

Anti-social Behaviour, Crime and Policing Bill

Lord Foulkes of Cumnock Excerpts

Wednesday 4th December 2013 Lords Chamber

Moved by

[Lord Foulkes of Cumnock]

56N: After Clause 103, insert the following new Clause—
“Assault on workers in public facing roles
(1) A person, being a member of the public, who assaults a worker—
(a) in the course of that worker’s employment, or(b) by reason of that worker’s employment,commits an offence.(2) No offence is committed—
(a) under subsection (1)(a) unless the person who assaults knows, or ought to know, that the worker is acting in the course of the worker’s employment;(b) under subsection (1)(b) unless the assault is motivated, in whole or in part, by malice towards the worker by reason of the worker’s employment.(3) In this section—
“worker” means a person whose employment involves dealing with members of the public, to any extent, but only if that employment involves—
(a) being physically present in the same place and at the same time as one or more members of the public; and(b) interacting with those members of the public for the purposes of the employment; or(c) providing a service to either particular members of the public or the public generally, “employment” in this context means any paid or unpaid work whether under contract, apprenticeship, or otherwise.
(4) Evidence from a single source is sufficient evidence to establish for the purpose of subsection (1) whether a person is a worker.
(5) A person guilty of an offence under this Act is liable, on summary conviction, to imprisonment for a period not exceeding 12 months or to a fine not exceeding level 5 on the standard scale.”

[Lord Foulkes of Cumnock (Lab)]

My Lords, Amendment 56N would create a new clause in the Bill. I think it is a key amendment. Since tabling it, I have received expressions of support from all sides of the House. I am glad to see the noble Lord, Lord Bradshaw, and the noble Baroness, Lady Coussins, in their places. They and others have expressed to me support for this amendment. I have not yet had the support of the Minister. I know that he is a listening Minister—I think it is the noble Lord, Lord Taylor, who is going to reply. I know him very well. I bump into him at airports and other places. I know he listens to logical argument and is concerned about these issues. I am sure that with a little persuasion we will get some sympathy, if not today then at some later stage.

I am sure that other Members of this House have been motivated as I have been by stories of shop workers who have been attacked when trying to apprehend shoplifters and effectively doing the work of a policeman. They are surrogate policemen in those instances, yet they get attacked as a result. There have been stories, too, of licensees set upon by teenage thugs for refusing to sell them liquor because they are underage. They may be underage for buying liquor but many of them are big, strapping lads and can inflict serious injuries on shopkeepers. That was the motivation behind the amendment and I will give a few examples and arguments later.

First, I acknowledge with sincere gratitude the help and support that I have received from the Union of Shop, Distributive and Allied Workers—USDAW—in drafting the amendment and advising on it. Unions sometimes come under attack and receive criticism of one sort or another, which is sometimes apposite, but they really look after their workers in so many ways. When legislation is being considered, our concern is to see what can be done to improve the lot of those workers. I particularly thank Karen Whitefield, a former Member of the Scottish Parliament, who helped with this, and Ruth George, one of the USDAW staff, who helped me greatly.

This amendment would cover more than just shop workers. It would cover health workers, public transport staff—about whom the noble Lord, Lord Bradshaw, is particularly concerned—local government staff, government agency staff, postal workers, teachers and catering staff; so the coverage is widely spread. In our privileged position in this House, it is sometimes easy for us to be divorced from the problems experienced daily by those on whom we rely for basic goods and services, so I will give some statistics that the union has provided. In 2012 alone, there were 120,000 violent attacks against retail staff throughout the United Kingdom; it is a very widespread problem. The Association of Convenience Stores has also expressed concern about this. In a briefing earlier today, it said that in the past three months more than half of retailers reported being victims of verbal or physical abuse during the course of their work. These are ordinary working people, often earning the minimum wage or little more, who are being attacked for simply doing their jobs and upholding the law of the land.

Consider for a moment the fact that 30%—nearly a third—of such violent and abusive incidents occur, as I said earlier, when customers are challenged on restricted items such as alcohol or cigarettes; that is, when staff are upholding the laws that we passed. Other such incidents occur when staff confront shoplifters, again when those staff are upholding the laws that we passed.

The assaults suffered by these workers are especially traumatic. People then have to go back and continue to work each day in the same situation in which they were attacked. Many retail staff report anxiety, panic attacks and a pervasive fear that such an incident will happen again. Such are the conditions under which they work.

I was given one example of a man in Sunderland out celebrating his lenient sentence—ironically, for a previous assault on someone with learning disabilities—who tried to steal some pork scratchings. He was challenged by a shop worker. First, he racially abused her in front of children and then tore out chunks of her hair. The shopkeeper was left shaking and crying, with her hair on the ground. The offender received as a punishment only a 12-month suspended sentence, effectively getting off. Such decisions do not acknowledge the physical and mental anguish suffered by the victim and do not inspire public faith in the criminal justice system. To make matters worse, there are so many cases that go unprosecuted. Perhaps it comes as no surprise that an USDAW survey showed that 17% of retail staff who had suffered a physical assault at work had not reported it as they believed that nothing would be done.

--- Later in debate ---

[Lord Condon (CB)]

My Lords, I declare my registered interest in policing. I am sympathetic to the reason why the noble Lord, Lord Foulkes, has moved the amendment and why it has been supported by the noble Lord, Lord Bradshaw, and the noble Baroness, Lady Coussins. However, I fear the real mischief they and we might seek to address is not the absence of suitable offences but the absence of action by, perhaps, police, prosecutors and sentencers. There is a range of assault offences already on the statute book that is more than adequate to cover the challenges that noble Lords have raised, such as common assault, assault occasioning actual bodily harm, grievous bodily harm and aggravated assault if there is a racial element. There are more than adequate offences on the statute book to deal with this challenge. The real mischief is the absence of action, the overuse of cautioning or the overly lenient sentencing around these offences—

[Lord Foulkes of Cumnock]

I understand what the noble Lord is saying but will he accept that there is a specific offence of assault of a police officer, which has higher penalties than ordinary assault? When a shopkeeper is doing effectively the work of a police officer in arresting someone who is shoplifting, should that not be considered in exactly the same way as an attack on a police officer?

[Lord Condon]

I hear what the noble Lord says but I do not find myself in total agreement with his arguments. He mentioned the experience of Scotland. That was a very laser-like, focused new offence on emergency workers only. I am genuinely sympathetic to the motivation behind this amendment but it is such a broad category of workers, across such a huge range of situations. Apart from the important symbolism of saying, “Here is a new offence”, I fear it would not add practically to improving the situation overall, and I say that with hesitation. The example the noble Lord, Lord Foulkes, gave of a licensed worker having their hair pulled out is clearly at least an assault occasioning actual, if not grievous, bodily harm. If there was no action, it is a dire condemnation of the police involved in that particular offence. I am very sympathetic to the motivation but the real mischief is in getting more action carried out, rather than adding more offences.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, the one point on which I totally agree with the Minister is that it has been a useful debate. I am really grateful for the eloquent and powerful support that the amendment has received from the noble Lord, Lord Bradshaw, my noble friends Lord Rosser and Lord Faulkner—before he was elevated to his position as Deputy Chairman—and the noble Baroness, Lady Coussins.

I am deeply disappointed that the noble Lord, Lord Condon, who eloquently argued the case that there should be a special offence of assault of a police officer, does not agree that that should also apply to shop workers who are effectively apprehending criminals on behalf of the police. They are doing the same job as the police are doing and ought to have the same kind of treatment.

[Lord Taylor of Holbeach]

May I explain that particular discrepancy? We do not ask of people in their normal employment that they place themselves in positions of danger in dealing with potentially violent incidents. We do ask that of the police. That is why all Governments through time have conceded that a special task is imposed on serving officers of the police in the conduct of their duty. That is the reason for that special offence.

--- Later in debate ---

[Lord Foulkes of Cumnock]

But shopkeepers and others are put in the position where they are not able to get away, as my noble friend Lord Rosser said. They are doing this in the course of their duty and their employment. They are apprehending shoplifters. That is what some shop workers are trained to do. They know they have to do that as part of their responsibility. They are doing the work, effectively, of a police officer. We can come back to that.

The Minister said that this has not been agreed on two occasions in the House of Commons so there should be no surprise that he will not accept it here. But this is a revising Chamber. What are we here for if not to consider what comes from the Commons and make suggestions, proposals and amendments? I hope that that argument will not be used completely as a barrier, otherwise we might as well all go home.

My noble friend Lord Rosser underlined this issue when he said again and again that we are talking about people who, in the course of their work, cannot walk away. The noble Baroness, Lady Hamwee, said that she avoided the trains back from Manchester on which there were football supporters because she did not want to be assaulted. With respect, she can avoid those trains, but the workers on those trains cannot avoid them. They have to be there to run the trains and collect the tickets. That is the difference, and I hope that the noble Baroness, Lady Hamwee, who has tabled a lot of amendments to the Bill, will consider that carefully.

[Lord Taylor of Holbeach]

Would the noble Lord consider an assault on the noble Baroness, Lady Hamwee, on a train to be less severe than an assault on someone employed to work on the train? In effect, the noble Lord seeks to introduce a special measure for someone who is assaulted in the course of their work. My argument is that assault is wrong; it is a crime whoever is the victim. Let us keep it simple and not complicate this with what people are doing at the particular time they are assaulted.

[Lord Foulkes of Cumnock]

I am not saying that. It would probably be even more heinous if the noble Baroness, Lady Hamwee, was attacked. However, as she has told us, she can avoid those trains on a Saturday afternoon: the workers on the trains cannot. I do not want to prolong the debate as there are other important amendments.

Having heard the arguments, I am happy, between now and a later stage, to consider, with my noble friends on the Front Bench, the unions and others, what the Minister has said, particularly his helpful point about drawing this debate to the attention of the police and Crown Prosecution Service. The amendment might be revised or, as the noble Lord, Lord Condon, suggested, we might look at narrowing it down to deal with people in particular circumstances. I hope I will have the opportunity to bring it back on Report and test the view of the whole House. Meanwhile, I beg leave to withdraw the amendment.

Amendment 56N withdrawn.

Anti-social Behaviour, Crime and Policing Bill

Lord Foulkes of Cumnock Excerpts

Monday 2nd December 2013 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I, too, am a member of the Joint Committee on Human Rights and wish to speak to Clause 91. I sympathise with the Government’s reasoning and motivation for this additional ground for possession being included in the Bill and appreciate the strong signals that are needed for people involved in rioting. I was in London in the summer of 2011 so I can directly share the concern of the Government and the general public about the serious nature of the offences of those who participate in riots, especially on that scale. However, as my noble friend Lord Faulks outlined, the criminal courts have sufficient powers to deal with those matters. If I recall correctly, some courts even sat through the night, and many offenders were clearly extremely shocked to be sentenced to a period of imprisonment. The criminal courts were not found wanting and sentences reflected the gravity with which the judiciary viewed this behaviour.

It is important to note the distinctive nature of the power in Clause 91. Unlike the powers in Clauses 86 to 90, this power is exercised in relation to behaviour that is not necessarily either of any impact on the landlord or in relation to the premises themselves or connected to the dwelling house. I also share the concern of the noble and learned Lord, Lord Lloyd. When speaking of the old ASBO regime, he stated that we are,

“using the civil law to do the work of the criminal law”.—[Official Report, 18/11/13; col. 750.]

Repossessing premises is a civil law matter, but this provision is akin to bringing criminal penalties for riot into our civil courts. As my noble friend Lord Faulks has outlined, the courts have to be satisfied that it is reasonable to grant possession. However, the fact that the offence can be committed not only by the tenant but by someone residing in the dwelling house means that a tenant wholly innocent of involvement in rioting could lose their home. That is unjust.

Such a tenant could argue that Article 8 of the European Convention on Human Rights protects their right to a family life and home. However, such arguments can often be lengthy and expensive. Many of these arguments will end up being funded by the taxpayer. Although I share the Government’s concern that rioting should have potentially serious consequences, I am left wondering why if rioting is a ground for repossessing premises, other serious offences, such as paedophilia, are not. I maintain the view recorded in the report of the Joint Committee on Human Rights. This clause will be an unhelpful precedent.

[Lord Foulkes of Cumnock (Lab)]

My Lords, a few weeks ago I was quite taken aback when I received from a Conservative Peer a message of glowing tribute for the two speeches I had made in the Chamber that day. Since I had not been anywhere near the Chamber that day I was somewhat mystified, and that is why I want to make it clear that the speech before last was not made by me, but by someone with a similar name. The noble Baroness currently in the chair and I also have the same sort of problem from time to time, except that there is one big difference between her and me which is fairly obvious. I do not mean politics, I mean gender. So I want to make it clear that the speech before last was made by the noble Lord, Lord Faulks: F-A-U-L-K-S. I say that because if I just pronounced it, Hansard would not know what on earth to do.

I have a further point. Had I been making these points in another place with the noble Baroness, Lady Fookes, in the chair, she would have ruled me out of order long before now, but that does not happen here. My point is that that the numbering and lettering of these amendments is even more confusing than the confusion between our three names. I hope the clerks will look at some more logical way of numbering and lettering amendments. After all, 56 is not the only number that you can use for an amendment. There is 57 for example, and so on. These As, Bs, Cs, Ds and so on are most confusing. However, I am going on too long, taking up time now when I am looking forward to speaking in order, substantially and importantly, on attacks on shopkeepers and public service workers later in the Bill.

Security Services: Supervision

Lord Foulkes of Cumnock Excerpts

Thursday 7th November 2013 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, I, too, congratulate my noble friend Lord Soley on obtaining this debate. Like him and my noble friend Lord Reid of Cardowan, I admire the work of the intelligence and security services. They have averted substantial terrorist threats and, unlike the noble Lord, Lord Blencathra, I think that is of national interest. I also understand and agree with what my noble friends Lord Reid and Lord Soley said about the challenges of new technology. However, I will follow what the noble Lord, Lord Strasburger, has just. Some recent reports have shown the inadequacy of the scrutiny of those services by the Intelligence and Security Committee as currently comprised. That is what I want to concentrate on in my few remarks today.

I am not surprised, frankly, at what has happened. For four years, I served as the only representative of this House on the nine-person committee and experienced some of the difficulties of scrutinising the intelligence and security services. I had some radical ideas and some changes to propose and managed, along with others, to persuade the Government to increase the number of committee members from this House to two. I was surprised, although maybe I should not have been, that I was summarily removed from the committee by the coalition. What was even more disturbing was that no Labour Peer was appointed by the Prime Minister in my place—no Labour Peer served on that committee. I have great admiration for the many qualities of the two Peers appointed. However, I doubt if my old friend, the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler, a former head of the Civil Service, have at the top of the list of their qualities a reputation for radical and challenging questioning. In fact, two more stalwart pillars of the establishment would be very hard to find.

The ISC is, as I understand it, being reconstituted and is to become a joint parliamentary committee rather than a committee appointed by the Prime Minister. However, I must say, with respect to the Minister, that the secrecy surrounding the way in which this committee is to be constituted would do MI6 proud. It is not the open procedure that Parliament ought to have. Can the Minister, in replying, clarify exactly what the composition of the committee will be, how it will be appointed and how it will operate? My view is that, like any other Joint Committee, the House of Lords should have roughly half of the members, especially as we are going to be bearing half of the cost. I suggest that the size of the committee might be increased to 11 members, with five from the Lords and six from the Commons. The latter would include the chair, who should be a member of the opposition party, like the chair of the Public Accounts Committee, to give the committee greater credibility. I have great respect for the current chair, Sir Malcolm Rifkind—I have known him for 50 years, since he was young man—but, to be honest, it does not instil confidence among the public and in Parliament that the committee will undertake radical and effective scrutiny when you have someone in the chair who has so recently been Foreign Secretary and had those kind of responsibilities himself.

In order to ensure that the committee is seen as effective and impartial, the members of the committee need to be chosen by as democratic a procedure as we can possibly devise. We are not the most democratic House, but at least we can try to work on some kind of democratic procedure so that the members are accountable to both Houses. I am asking the Minister to cover this in his reply, but suggest that if we had five Peers, two might be chosen by the Labour group, two by the government parties and one by the Cross-Benchers. They would have an opportunity to report back to the groups on what is happening and what their experience has been. Of course, it is up to the Commons to decide how its members are chosen, but I hope there would be some degree of accountability.

Further changes are of course needed in the operation of the committee. For example, when I was on the committee, we had no staff to carry out investigations. We were not allowed to appoint staff to go into the departments and carry out investigations on our behalf. Previously, the committee had an investigations officer, but that was stopped by the Government because, no doubt, he was investigating too much. The committee needs some capacity in that respect.

The changes in membership should be made first. For the committee to have some credibility, it needs to have some accountability. I hope that the Minister will give noble Lords a clear indication in his reply that there are going to be changes in the constitution, composition and operation of the Intelligence and Security Committee. If we do not get those kinds of assurances, some in the media and among the public will continue to take that view that somehow, in some ways, the Government have got something to hide.

--- Later in debate ---

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

My Lords, I join other noble Lords in thanking the noble Lord, Lord Soley, for presenting this topic for debate, and I am grateful to all noble Lords who spoke so eloquently in this debate. I think that noble Lords will understand that, in line with the practice of successive Governments, I shall not comment on specific issues relating to the work of the intelligence agencies. I shall focus on the breadth and depth of supervision of the UK’s intelligence agencies, and the fact that they are second to none and—given recent reforms extending parliamentary oversight, of which this House is very much aware—fit for purpose.

Secret intelligence helps protect national security, tackle terrorists and stop criminals. But this does not mean the activities of the intelligence services go unchecked. Successive Governments have rightly introduced measures to ensure that the use of intrusive powers needed to obtain intelligence are governed by a strict legal and policy framework compatible with the Human Rights Act. This ensures that intelligence activities are authorised, necessary and proportionate, and provides robust statutory oversight.

Oversight starts within the intelligence agencies themselves, which enforce rigorous internal controls. Their recruitment and training procedures are designed to ensure that those operating within them can be trusted to do so lawfully and ethically. A culture of compliance with the letter and spirit of the law pervades everything they do. Noble Lords have rightly paid tribute to the work of those in the intelligence agencies. In their most recent reports, both the Intelligence Services Commissioner and the Interception of Communications Commissioner commended the integrity and professionalism of the agencies’ staff.

In addition, of course, Secretaries of State are accountable to Parliament and the public for the agencies’ actions. They take decisions on whether to authorise the use of intrusive powers by the intelligence agencies. Senior members of the judiciary are appointed as Interception of Communications and Intelligence Services Commissioners to oversee the process of authorisation of intelligence activity, which includes reviewing the decisions of Secretaries of State and reporting to the Prime Minister on their work.

Several honourable Members in the other place recently urged the commissioners to play a more visible role. I agree. Oversight must be seen to be effective. That is why, as noble Lords mentioned—indeed, the noble Lord, Lord Reid of Cardowan, gave us an up-to-date briefing on what was going on down the other end—the Intelligence and Security Committee is, for the first time, holding an open evidence session with the three heads of the intelligence agencies. It is because of this landmark occasion that the noble Lord, Lord Butler of Brockwell, as a member of the ISC, told me that, contrary to his wish, he would not be able to participate in today’s debate. However, we should remember that so much of the commissioners’ work—and, of course, that of the ISC—involves extremely sensitive information and that there will be limits to what they can responsibly report on publicly.

Separately, the Intelligence and Security Committee examines the policy, administration, past operations and expenditure of the intelligence agencies. Noble Lords will remember that earlier this year the Justice and Security Act significantly reformed and strengthened the committee’s powers. As a result of that Act the intelligence agencies are more accountable to Parliament and no longer have the ability to withhold information from the ISC. The new ISC has a broader remit, extra powers to consider past operational activity, and twice the resources. Those reforms were not conjured from thin air but followed public consultation on the best way to modernise judicial, independent and parliamentary scrutiny of the intelligence agencies, while allowing them to get on with keeping us safe.

The noble Lord, Lord Foulkes of Cumnock, asked what the composition of the ISC will be and how it will be brought together. I can say that with the new appointments process, although the PM nominates the members after consultation with the Leader of the Opposition, Parliament will appoint the ISC. The reforms in the Justice and Security Act mean that the ISC will itself select its chair. Should the committee wish to nominate a member of the Opposition as the chair, it will be free to do so. I hope that that will reassure the noble Lord.

[Lord Foulkes of Cumnock]

I am grateful to the Minister for that. However, can he clear up the point I raised about the balance of membership between the two Houses? As I understand it, we are being required to provide 50% of the running costs. We are also used to Joint Committees of both Houses having roughly equal membership. Can he assure us that that will be the case with this committee?

[Lord Taylor of Holbeach]

If I sought to reassure the noble Lord, I might make a mistake. However, I will check that out and write to him. The noble Lord makes a very good point as a loyal Member of this House, and I hope that I will be able to give him a positive answer.

We have to give these new arrangements time to bed down and to prove their effectiveness. I am certain that the committee will succeed in giving Parliament and the public confidence that the Executive and the agencies are properly held to account. As the noble Lord, Lord Soley, said, the whole business of keeping legislation up to date is a matter for the House authorities, and he made an interesting suggestion about how we can keep pace with technical change. However, that is a matter not only for the Government but for the House authorities as well.

Supervision does not stop with the ISC. The courts provide an independent avenue for anyone who wishes to complain about intelligence activity. Anyone who feels that they have been subject to improper use of intrusive powers by the intelligence agencies can complain to the Investigatory Powers Tribunal, which provides independent judicial oversight. If it decides that legislation has been breached or human rights infringed, it can quash warrants, order the destruction of records and award financial compensation.

One need only look at the range of activity this year alone to see that the system works. The ISC has published reports on foreign involvement in UK critical national infrastructure, communications data, and GCHQ’s alleged activity in relation to PRISM. It is now reviewing the tragic killing in Woolwich in May and will begin another review next year into intelligence legislation, which may assist with the point made by the noble Lord, Lord Soley. The Interception Commissioner is investigating reports related to interception following the Snowden leaks. A judicial review of the police’s decision to stop David Miranda in August is currently being heard by the courts, and the independent reviewer of terrorism legislation—David Anderson QC—will then report on the police’s use of terrorism powers in that case.

The Investigatory Powers Tribunal is considering several cases arising from the Snowden leaks that have been brought by parties including Liberty and Privacy International. If these investigations and legal cases lead to criticisms, recommendations for change, or adverse judgments, the Government will listen, reflect and respond. This is how effective oversight works, and this is how we can best ensure that Parliament and the public can have confidence in the work of intelligence agencies while protecting the secrets that need to remain secret.

I will now comment on some of the points made by noble Lords in the course of the debate. I welcomed all the contributions, which were good. I do not necessarily share the views of my noble friend Lord Blencathra on the proportionality of different levels of terrorism. I thank the pre-legislative Joint Committee on the draft Communications Data Bill, which did Parliament great justice in its scrutiny. The ISC undertook similar scrutiny of that Bill; it took evidence from the intelligence agencies and was briefed on GCHQ capabilities in this area. From its informed position, it considered there was still a communications gap requiring legislation. The noble Lord, Lord Reid of Cardowan, paid right and proper tribute—

EU: Police and Criminal Justice Measures

Lord Foulkes of Cumnock Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords, my old friend the Minister was right on one thing, anyway—the European Union Select Committee’s report is an excellent one. That is why it was deeply disappointing not only that we did not get the Government reply until around lunchtime today but that it is such a flimsy response. It is 22 and a half pages long, most of it just repeating the recommendations of our Select Committee and making inadequate responses to them. In apologising for the delay, the Government have said that it arose to ensure as comprehensive and as detailed a response as possible. Comprehensive and detailed—that is an unbelievable description of this reply. Perhaps the Minister who is to reply could tell the House what detail we had to wait for. What detail could not have been provided many weeks ago?

This is a serious matter. We are talking about the threats of terrorism and organised crime. The Government, in moving in this direction, are putting back the fight against terrorism and organised crime and thus putting citizens in danger in a vain attempt to appease anti-European Tory MPs and particularly the UKIP-ers, as my noble friend Lord Tomlinson said. It is a vain attempt. The Guardian today reported that the first report of the balance of competences review has been published, which is supposed to help to appease the anti-Europeans and UKIP. It has failed to satisfy Mr Farage, the Alf Garnett of British politics, who described it as a,

“futile and cynical PR exercise”.

Perhaps I can say this to my friend the noble Lord, Lord McNally: Mr Farage will never be satisfied. One of my colleagues likened him to Oliver. He will continually ask for more and more, so it is no use trying to appease him.

Over the past five or six hours I have been able to look at the reply to the report. On the balance of competences review, of which we have had the first part today, the Government claim that they are two separate exercises. That is complete nonsense. Of course the balance of competences review has a much wider remit, but reviewing justice and home affairs and not completing that until 2014 means that these two exercises are related to each other. Surely there must be some follow-through or cross-over between one and the other.

The response to the report refers to the devolved Administrations and gives a list of all the meetings. In fact, almost a page is taken up by a list of the meetings that have taken place, but what the response omits to say is that as far as Scotland—just one of them—is concerned, the Lord Advocate and the Cabinet Secretary for Justice have grave concerns about opting out of the European arrest warrant without any guarantee of being able to opt back in. The crucial point is that lack of a guarantee of the ability to opt back in. They point out that the European arrest warrant is an important tool to combat cross-border crime; I think that we would all agree with that. So why opt out of the warrant? In its report, the Select Committee said that,

“there are compelling reasons of national interest for the United Kingdom to remain full participants”,

and that,

“we have identified no persuasive reason for the United Kingdom to withdraw”.

The noble Lord, Lord Hodgson, has just said that all these defunct measures clutter up the scene, but given his background I would ask him to take a look at some of the defunct measures that we have in our United Kingdom legislation. There are 10 or even 100 times as many, but we are not spending time clearing them up or repealing them. If they are doing no harm, why are we going through this huge exercise just to get rid of things that are not causing any harm to anyone when we do not know whether we will be able to opt back in to things that are absolutely vital to everyone? The Government say that they are “seeking” to rejoin. The word “seeking” is the important one. The European institutions may “seek” to impose conditions, as the Government have conceded.

The delay also means that we are wasting valuable time, as a huge number of officials are involved in these kinds of debates. The cost is enormous as well. The noble Lord, Lord Maclennan, asked a serious question: if we opt out and then we opt back in, are we then subject to the terms of the European Union Act 2011? Do we have to go through the referendum procedure? The noble Lord, Lord McNally, did not have time to consider it so I do not blame him for not replying, but the noble Lord, Lord Taylor, has had a few hours to do so. He has officials, around five of them, who no doubt are on the telephone to lots of others. I hope that they will come back so that he is able to answer that question.

I do not want to go on for too long so I shall make two last points. I must say that I think that this is a very sad day for the Minister. As I said, the noble Lord, Lord McNally, is a good friend of mine. I ask him to remember the 1970s and early 1980s when he and I were members together of the Labour Movement for Europe, arguing for greater competence and more powers for the European Union. Indeed, he went much further than I did; he went so far as to leave the Labour Party and set up a new party with the noble Baroness, Lady Williams, and others so that he could fight for Europe. Where is he today? Where is that Lord McNally now? Where is the Tom of those days? He comes in and reads out verbatim something handed to him by the Tories—his master’s voice.

Finally, I must say that the one person who disappoints me even more than the noble Lord, Lord McNally, is the noble Lord, Lord Hannay. The noble Lord, Lord Hannay, knows more about this than anyone else. It reminds me of the Schleswig-Holstein question. There were three people who knew about it: one had subsequently died, one went mad and the other one was the noble Lord, Lord Hannay of Chiswick, in this case. The noble Lord, Lord Hannay, knows more about this issue than anyone else. He knows—I have heard him say it in the committee—better than anyone the dangers of opting out without any guarantee of being able to opt back in on these vital issues. That is why I am very disappointed that he has been conned by the Government. In all the machinations that have taken place, the noble Lord, Lord Hannay, and his supporters have been conned. The opt-out is bristling with problems. The only way to express concern about it is to vote against the Government today. I urge any Member—not just on this side and on the Cross Benches but on the other side—who has real worries about opting out to take that course of action.

--- Later in debate ---

[Lord Taylor of Holbeach]

There will be a deadline of 31 May. The Government will make the decision but it will be up to Parliament to endorse it in a vote after 31 May. This is a matter where the Government and Parliament will be in constant dialogue. As I have said, there will be a debate in this House, I hope, in November. I hope that noble Lords will be furnished with arguments by the committee of this House that will enable us to discuss this issue properly at that time.

This has been a good debate. This Government are not frightened of criticism and are prepared to seek to answer it. The choice before us is whether we exercise the opt-out and rejoin measures, where it is in the national interest to do so, or we do nothing. I am firmly of the view that we should opt out, but it is most certainly in the national interest to seek to rejoin measures that help to combat cross-border crime and keep our country safe. I hope that the House will also endorse the measures in Command Paper 8671 and strengthen the Government’s negotiating hand. I know that the European Union Committee can further help the Government and this House by further scrutinising the measures that it feels the Government should rejoin. This can only enhance the debate. I am very pleased that the terms of today’s Motion have encouraged the noble Lord, Lord Hannay, not to press his amendment. I hope that I have also shown that the Government are prepared to listen to these concerns.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Taylor of Holbeach]

I am sorry; I am not going to give way. I have some important information for the House. The brief I had that said that the vote would be after 31 May was incorrect. It has now been corrected. The vote will be before 31 May, which I am sure reassures noble Lords. It certainly makes my life a little easier, if I may say so.

I hope that the noble Lord will forgive me. It is late and I am coming to the end of my remarks. There will be another vote before we formally apply to rejoin these measures. Today is not the end of the process but just a step along the road. I hope that noble Lords will support the position set out by the Government. It gives us a chance to be involved in a continuing discussion on this issue. I commend the Motion in the name of my noble friend to the House.

Europol Regulation: European Union Opt-In

Lord Foulkes of Cumnock Excerpts

Monday 1st July 2013 Lords Chamber

We need Europol. The Government’s reservations are eminently addressable in negotiations. We can do that effectively only if we opt in, and I hope that is what the Government decide to do. I support the Motion.

[Lord Foulkes of Cumnock]

My Lords, as a member of your Lordships’ European Union Select Committee, I rise to support the Motion of my noble friend Lord Hannay and to follow the eloquent and powerful arguments put forward by him and the noble Lord, Lord Sharkey. They are experts in this area.

I wish to start by reading one of the committee’s recommendations on page 10, which states:

“If the Government were to opt in to the draft Europol Regulation and also exercise the block opt-out we urge them to opt back in to the Council Decisions which fall within the scope of the opt-out and which are connected with Europol’s continued operations, should this prove necessary”.

I do not quote that to criticise the committee, quite the reverse. However, this process of opting in, opting out and opting in again is like hokey-cokey politics in which the Government are indulging. They are dancing to the tune of UKIP and the Eurosceptic right in their party and putting our national security and the fight against crime in jeopardy as a result.

The Europol matter that we are discussing is complicated by the threatened block opt-out, as I said at Question Time today and as the noble Lord, Lord Hannay, mentioned. The noble Lord, Lord McNally, was rather coy earlier when speaking about the differences of view between the two sides of the coalition in the discussions on this matter. We have a Conservative Minister replying to this debate and it will be interesting to hear his response. However, we get a very clear view of the position from the documents that were leaked to the Daily Telegraph, and I wish to quote briefly from one or two of them. A number of measures were binned, where we agreed not to seek to rejoin, which must cause concern.

I say to the noble Lord, Lord Sharkey, that one of the documents refers to,

“37 measures identified by DPM”—

that is, the Deputy Prime Minister—

“as being of less importance”.

One of the measures that Mr Clegg identified as being of less importance was:

“Joint Action … on cooperation between customs authorities and business organizations in combating drug trafficking”.

How can that be identified as being of less importance? Then we come to measures that are undecided. The document states:

“48 measures for Immediate Discussion (Differing Views in the Coalition on Rejoining)”.

There were differing views on whether it should rejoin those measures, having exercised a block opt-out on 133. Should we rejoin the measure on combating child pornography on the internet? Is there any doubt about that? Why is there any discussion about it? Why does one side of the coalition think that we should opt in and another that we should opt out?

Another measure mentioned by the noble Lord, Lord Sharkey, concerns,

“security in connection with football matches with an international dimension”,

where we have seen that police forces acting together have been very effective in passing on information about known troublemakers so that they can be dealt with on the spot. British police officers can go out to matches abroad and offer their help and police officers from other countries can come here and help with identifying troublemakers. However, all this is being put in jeopardy by what the coalition is considering doing because of the pressure of the 133 opt-outs. It is dancing to the tune of UKIP and the Eurosceptic right, which I know the Minister is not part of. I hope that he will take the opportunity to make that clear again today.

I now wish to consider the measures in detail. We are told—the noble Lord, Lord McNally, used this excuse earlier today—that each of them is being looked at and the reason the Government have taken so long to consider the other report of our Select Committee on the opt-out is that the measures are all very complicated. He also said that each one has to be looked at in the national interest. I always get a wee bit worried when the coalition talks about the national interest. It seems to me that it is often a case of what is in the best interests of keeping the coalition in power rather than what is in the national interest. When pressed to explain their thinking, Ministers have said that they look at the measures on a case-by-case basis as far as the national interest is concerned.

There are two key problems with the Government’s plan of action. The first is the cost to the United Kingdom of permanently opting out of some of the measures, with Europol a particular concern, as the report rightly says. The report expresses the view that,

“none of the concerns expressed by the Government … outweigh the benefits to the UK of Europol’s assistance to national police and law enforcement agencies in the fight against cross-border threats (including terrorism) and serious organised crime”.

Therefore, we are putting the fight against terrorism and serious organised crime in jeopardy through this opt-out. Rarely has an all-party report, unanimously agreed by all the members of the sub-committee and the committee, been so damning of the government line.

The second problem is the cost of what the Government hope to retain. Opting back in is not a straightforward process. The noble Lord, Lord Williamson, having been secretary of the European Commission, will know only too well exactly what has to be done. There is no guarantee that negotiations to opt back in would be successful. We might find ourselves locked out permanently of key crime-fighting tools. Ensuring that this does not happen will require a large and wholly avoidable expenditure of diplomatic capital. Our experienced diplomats would have to spend their time persuading the other 27 countries of Europe, now that Croatia has joined, that we should be allowed back in.

The rewards that the Government hope to win by such a policy are largely intangible. The measures they hope to scrap are mostly technical points relating to the definition of certain crimes. What is really driving this agenda is the streak of destructive Euroscepticism that runs through some of the Tory Back Benches. In this instance, it is clear what they mean by the national interest. As I said, the national interest is the interest of a small, bullying minority. David Cameron is trying to paint himself as a national champion, but in fact he is having his arm twisted. It is a clever piece of political spin but it is a disastrous piece of policy that could leave all of us in the United Kingdom dangerously exposed to crime and terror. I hope that the Minister will indicate that the Government will have second thoughts in light of the unanimous report from our Select Committee.

[Lord Judd]

My Lords, I am very glad indeed to follow the noble Lord, Lord Foulkes, as I find myself in a great deal of sympathy with the argument that he has put forward.

It always seems to me that if one set out to design a nation that was dependent on its relationships with the world in almost every sphere of our significant life in Britain, it would be difficult to think of a better example than the United Kingdom. We live in a totally interdependent world. I believe strongly that the test of political leadership in our country is to demonstrate that we are determined to look to the well-being of the people of these islands of the United Kingdom, but that that can best be done only if we are in a network of international co-operative relationships, of which the European Union is one. It is not a romantic debate about whether one is a European or a Briton; it is hard-headed practical common sense about how we look to the well-being of the British people. Certainly, as far as I am concerned, any thought that we should retreat into being a sort of free-floating raft off the mainland of Europe in the turbulent world in which we live, and that we will somehow then look better to the interests of our people, is a betrayal of the British people and should be dismissed as such.

These matters of security and international crime and the rest are paramount examples of this. We all know that crime is now internationalised on an almost unimaginable scale. We all know that security and terrorism and threats of this kind operate on an international basis. All the new technology at the disposal of the human race makes all this more acute. There is no way in which we can look to the security of the British people without the maximum co-operation of those who are seeking the same objectives for their people in Europe as a whole. Indeed, that should always be a stepping stone to maximum international global co-operation, because that is ultimately the indispensible solution that we must find.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I am grateful to the noble Lord, Lord Hannay, and the European Union Committee for calling this debate. I am pleased that we have had such a wide-ranging discussion, although some noble Lords have made a little bit of fun with expressions such as “hokey-cokey”. At bottom, the debate has been firmly rooted in the issues that the Government are having to consider and deliberate on. I think that noble Lords have taken their cue from the report and I am therefore extremely grateful to the noble Lord, Lord Hannay, and his committee for the clarity with which the report presents the issues before the Government.

I must say right now that the Government have not decided whether to opt in to the measure at this stage. The arguments are finely balanced. I do not feel that this decision has been overshadowed by any other decision which is also before the Government at this time. The point made in the committee’s report is that Europol and its future is an entirely separate issue. The noble Lords, Lord Judd and Lord Foulkes, referred to the importance of Europol in the fight against cross-border crime.

We also need to protect the independence of our own law enforcement agencies and there are elements in the draft measure which cause us concern. We therefore need to decide whether it would be better to opt in at this stage and use our vote in the negotiations to try to improve the proposal or to stay out for now and reconsider our position once the final text is agreed. Both options are open to us.

In saying that, I want to be clear that we strongly support Europol as it currently operates. As noble Lords have pointed out, we work very closely with it in tackling many serious offences, such as people smuggling and online child abuse. My noble friend Lord Sharkey gave some detailed examples of where Europol has been important in tackling cross-border crime affecting this country. Indeed, the noble Baroness, Lady Smith, also recognised that point of view. Europol provides real benefits to our law enforcement agencies. It is an effective and well run organisation with strong leadership. Indeed, as noble Lords have pointed out, with a Briton as its director, the UK plays an important part.

However, we are worried that some aspects of the new proposals may risk making our law enforcement agencies accountable to Europol, which would be a different thing. Policing is a core function of a sovereign country and must remain a member state responsibility. Perhaps I may illustrate this with an example. I refer to the proposals on police training. I am pleased that the European Union Committee shares our concerns about the proposed merger between the European Police College and Europol. The noble Lord, Lord Hannay, confirmed that in his opening speech. However, the Commission’s proposals go beyond the merger. They would give the Europol academy a much broader role than CEPOL currently has in police training, significantly expanding the EU’s responsibilities in an area that really should be left to member states.

We also have concerns about the stronger obligation to give Europol data, to which I shall perhaps return later in response to contributions. We accept of course that Europol needs good-quality intelligence from member states if it is to do its job properly. This country has a good record in that respect. But the new regulation goes far beyond specifying exactly what must be shared and in what circumstances. It does not allow us to withhold information that would threaten national security or harm an ongoing investigation. That worries us because it seems to undermine the control of member states over their law enforcement intelligence. Another factor we perhaps need to bear in mind is that it also risks overwhelming Europol with data provided by member states without regard to its quality simply to avoid being taken to the European Court of Justice.

Another concern is the provision that allows Europol to ask member states’ law enforcement agencies to carry out investigations. Europol already has some powers in this area but the new regulations strengthen them, which suggests a presumption that a member state will comply with Europol’s request. Any reason for not complying could be subject to challenge before the ECJ. Indeed, my noble friend Lord Sharkey acknowledged that this was a risk. We would have real concerns if that led to the European courts judging our policing priorities.

The committee has argued that we should opt into the text and negotiate out these provisions. That is an option, especially as opting in before 30 July would give us a vote in the negotiations. However, the proposal is subject to qualified majority voting, so if we did opt in we could still be out-voted. We would then be bound by the outcome even if we did not get the changes we were seeking.

It is right to bear in mind that the decision to stay out at this stage will not necessarily exclude us from Europol for ever. We would remain involved in the negotiations and would have another chance to take part once the measure had been adopted. That would give us the advantage of knowing exactly what the regulation would require of us before we signed up to it but with the offset of having no vote in the negotiations.

[Lord Foulkes of Cumnock]

My Lords, while the Minister is going through these arguments, perhaps he could explain why he has had no support from his own Back-Benchers and why none of the people who gave evidence to the sub-committee supported his point of view? Why has he not been able to persuade anyone inside or outside this House?

[Lord Taylor of Holbeach]

I am seeking to explain this particular case solely to those who are listening to me at the moment. As I have said, we are not coming to this debate with a set point of view. We are here to listen. We have had the opportunity of considering the report and we will continue to do so. The noble Lord will know that this debate will be looked at and the points made in it will be considered as part and parcel of the Government’s decision on whether to opt-in to the proposal or leave the decision and let the negotiations take their course. That is the Government’s position at this stage: that is what we are considering. This debate is very important because it will help to inform the Government’s decision. I have not come here with a point of view that will determine the outcome of those considerations.

--- Later in debate ---

[Lord Taylor of Holbeach]

I imagine that I will be able to tell noble Lords that it is highly probable that a decision will be made before the other place rises, rather than before 30 July. The business of this House is a matter for the usual channels and I place myself in their hands. However, I would want to communicate any decision of this importance to the House and, indeed, to Parliament. I am sure that that will be acknowledged by my noble friends who occupy the usual channels.

My noble friend Lord Sharkey is correct to say that there are numerous examples of good co-operation. He illustrated the virtues of Europol and why, notwithstanding the discussions on whether to opt in or to let it run and then negotiate, it is such an important institution and we support it. I am aware that we share common ground with other member states on some issues, but there are no guarantees. The issues are subject to qualified majority voting and there have not been any detailed negotiations that have allowed us to gain a clear idea of how much support we have for our concerns. Should we not succeed in amending it, we would be bound by the final text, and that is a matter of concern to the Government.

Perhaps I may respond to the noble Lord, Lord Foulkes. I should like to highlight that there are two separate issues here: the block opt-out and the Europol negotiations. The two issues are not being confused and this debate is about the Europol regulation, not the opt-out.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Taylor of Holbeach]

If the noble Lord will forgive me, I am going to run out of time.

[Lord Foulkes of Cumnock]

My notice said that the House would rise at 10 pm, so we have an hour and a half. I wonder if the Minister will think again because the two issues are related. The recommendation I read out indicates that they are related. If you opt in and there is a block opt-out, and then you have to opt in again, there must be a relationship between the two.

The Minister and I know a little about another member state of the European Union, la belle France. The French are just as concerned about their national interest, their policing and the other concerns that he has expressed. Why does he think that they do not have the same anxiety that this Government seem to be expressing?

[Lord Taylor of Holbeach]

That is exactly the point that I have been trying to lay before the House and why the Government are deliberating carefully on this. It is a matter of common interest across European countries and of measuring that common interest. This is all a worthwhile endeavour but it requires the national interest to be taken into account. That is the background against which the Government are making this decision. Of course, there is a big issue about the general opt-out but this decision stands alone and is being considered by the committee and by the Government on its own merits. I have tried to demonstrate that this is an even-handed consideration of the issue.

I say to the noble Baroness that, whatever our decision, negotiations are important for us in ensuring the operational independence of law enforcement agencies and the security of our citizens. We expect there to be some common ground among member states, such as la belle France, if the noble Lord, Lord Foulkes, was referring to the interests that a number of noble Lords in the Chamber at the moment have. We are committed to ensuring the best possible outcome from these negotiations. We will need to consider the proposals in detail as the negotiations progress but we agree that strong data protection, for example, is important. The regulations here will need to reflect the data protection provisions being negotiated elsewhere. None is likely to change during the negotiating position. The noble Baroness asked how many other measures are awaiting an opt-in. I know of no others but will seek to find out and let her know if there are any.

This good-natured and deep-thinking debate, despite the hokey-cokey allusions, has considered the seriousness of this issue. As the noble Lord, Lord Judd, said, the security of the country requires us to make sure that law enforcement agencies have the co-operation they need from other European countries. I stress that the Government still have an open mind on the issue. We will of course consider the view of your Lordships’ House and the arguments made by noble Lords here tonight very carefully before we make our decision. I assure the House that the Government will ensure that this House, and Parliament are kept informed about that decision.

Crime: Stalking

Lord Foulkes of Cumnock Excerpts

Tuesday 12th March 2013 Lords Chamber

[Lord Taylor of Holbeach]

I do not want to move on to the question of sentencing policy, but I want to emphasise that the Government take the offence of stalking seriously; so does my noble friend, who I know is a member of the Justice Unions’ Parliamentary Group, which published a very helpful report on the subject. I note what she said, but I ask her to remember that the Home Office is in continual dialogue with the Crown Prosecution Service on the way these new offences are being implemented.

[Lord Foulkes of Cumnock]

My Lords, the Minister said that a lot of talking was taking place but he did not indicate what action was taking place. Did he answer the question of how many prosecutions there have been to date under this new law regarding stalking offences? If he did not, why not?

[Lord Taylor of Holbeach]

Those data are not available.

[Lord Foulkes of Cumnock]

Why not?

[Lord Taylor of Holbeach]

I am sorry, but they are not collected and compiled until some time after the incidents have occurred. As I have said, the data will be available in May 2012—

Citizenship Test

Lord Foulkes of Cumnock Excerpts

Tuesday 26th February 2013 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I am always very happy to learn and would be delighted to meet my noble friend. However, I do not agree with his summary of the new handbook. I think that it contains relevant British history and culture, which is the whole purpose of the exercise: that is, to provide facts on which people can base a life of settlement and, indeed, citizenship in this country. Therefore, I disagree with the premise of my noble friend’s supplementary question but I am very happy to meet him.

[Lord Foulkes of Cumnock]

My Lords, has the Minister tried to take the test himself and, if so, did he pass?

[Lord Taylor of Holbeach]

I have a sample test here and it is very fortunate that the correct answers are given in bold type.

Justice and Security Bill [HL]

Lord Foulkes of Cumnock Excerpts

Monday 19th November 2012 Lords Chamber

I support Amendment 11 in the name of the noble Baroness, Lady Smith of Basildon, which proposes annual hearings. In Committee, it seemed clear that there was quite a concern around the House to consider in public what can be considered in public without danger to national security. I sensed an underlying view that this would enhance the reputation of the ISC.

[Lord Foulkes of Cumnock]

My Lords, is the noble Baroness aware that every year there is a debate, usually in the Moses Room, about the annual report? Has she been able to attend any of those?

[Baroness Hamwee]

My Lords, no, but I am aware of that. I am seeking to push the boundaries a little further. The noble Lord tuts quietly that I have not been there. Last year, I read the Hansard report when I began to take an interest in these matters. I sense a feeling that this would enhance the reputation of the Intelligence and Security Committee. Amendment 11 would be a broader arrangement than could take place in a debate in either House, whatever its venue, given that it provides for giving evidence before the ISC in a session open to the public. Therefore, it is more extensive.

I am very much alive to the danger to which some noble Lords pointed that questions asked in public can be so feeble, as can the answers, that it can have the opposite effect of just appearing to be completely stage managed and uninformative. I believe that we should give the ISC the scope to do the job that it is doing, and is capable of doing, in private to take it as far as it can go.

I have tabled Amendment 12 about access to meetings and I am aware that I take a different view on this from a number of other noble Lords. That is not because I want all or very many meetings with the ISC to be held in public. My point is that it should direct its mind to the issue. At the previous stage, from those with experience of the current arrangements, we heard ideas of what might be considered in public. Those ideas included recruitment to the agencies, issues of diversity, language, and recruitment from all sections of society. I would add to that retention, which generally goes along with recruitment, and a number of human resources matters, such as sickness rates and diversity at different levels of seniority. The noble Lord, Lord Butler of Brockwell, told us that today the ISC had been considering certain of these amendments. It might have been quite interesting to hear some of that debate in public. As regards financial matters, the cost of the GCHQ facility was mentioned.

All those issues quite properly can be debated, with care that the mark into dangerous territory is not overstepped. I have confidence that that would be possible and that those debating the issues would be very alert to that. However, it also would be proper that issues of that sort—I am sure that there are others—should be heard and dealt with in public to add to the credibility of the committee. I beg to move.

[Lord Butler of Brockwell]

My Lords, commenting on what the noble Baroness, Lady Hamwee, said at the end of her remarks, perhaps I may say that it was not today that the Intelligence and Security Committee considered amendments. The committee has not had the opportunity to consider the amendments she has put down. Therefore, in offering a comment, it will be personal rather than on behalf of the committee.

I have no objection to Amendment 9 because it is a permissive amendment. However, Amendment 11 states:

“The ISC shall each year call the heads of the Agencies and the Secretary of State to give evidence before them in a session open to the public”.

In principle, there is no objection to that. Indeed, the chairman of the Intelligence and Security Committee says that it is the committee’s intention to have a public hearing. The arrangements for that are being considered at the moment. However, one would not want this to be a public hearing that is too staged, which would be worse than useless. I would counsel against passing an amendment which makes it compulsory for the Intelligence and Security Committee to have a public meeting each year. That may well be the outcome but there may be times when the work programme simply is not consistent with it. That is my only cavil against that.

I would not be in favour of Amendment 12, which states that the committee,

“shall conduct its proceedings in public, save when it determines that members of the public shall be excluded”.

There would be so many meetings for which that resolution would have to be moved that it would be a matter of public comment and derision, which would reduce confidence in the ISC rather than increase it.

[Lord Foulkes of Cumnock]

My Lords, I have made a mental note never to tut tut silently in future, especially since that silent tut tutting can be observed by noble Baronesses even about 10 yards away. So I will be careful. The reason why I asked whether the noble Baroness, Lady Hamwee, had been able to attend the debates that we have had in the Moses Room is because, when I served, as I did for four years, on the Intelligence and Security Committee, I had the privilege of introducing and replying to those debates. We had great difficulty in encouraging people to attend and participate. If more Members of the House had attended and participated, it might have added to the information available in the debates that we have had at different stages.

A few years ago, when we had a Labour Government, before the Conservative Government came in, the Intelligence and Security Committee reported to the House on almost all, if not all, the issues that the noble Baroness, Lady Hamwee, has raised—on diversity and all the other points that she raised. We had indications and reports about it, and people raised it during the course of the debate. Even all those years ago, we discussed holding hearings in public; we discussed that in the debate in the Moses Room, along with the problems and opportunities that might be available if we held them in public. I hope that I am not giving any secrets away in saying this, but I was in favour of moving towards holding a meeting or two in public if we could do that. It is the right thing to do.

It would help and inform the debates that we have on legislation if Members came along to the annual debate. I presume that either the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler, will introduce the report and reply to the debate. Noble Lords would find it a very interesting and educational experience.

[Lord Reid of Cardowan]

My Lords, there are two issues covered in this group of amendments. The first is the process of appointment of the heads of the intelligence services and agencies and, secondly, the degree to which their proceedings are held in public. Amendment 9 refers to the possibility of the ISC—enshrined in the word “may”—considering,

“the proposed appointment of the following, including … the Head of the Security Service … the Head of the Secret Intelligence Service”,

and so on. I find that an attractive idea; I see no reason why it should impede, and many reasons why it might enhance, the appointment. It would be useful for the Prime Minister, before final ratification, to know the views of the ISC. It would be useful for Parliament to know that the proposed appointee had the endorsement, as it were, of the ISC, given that it will be elected on a wider franchise than Parliament and it contributes towards the ownership by Parliament itself.

The vagueness as to what happens with regard to the committee’s deliberations when such a discussion or questioning of the prospective appointee has taken place is an advantage and a serious disadvantage. I am not quite sure whether the proposal is permissive of communicating negative views on any appointment to the Prime Minister. Does it amount in effect to a de facto veto? It is delightfully vague on those issues.

There is another issue to consider. At the moment there is a relative independence of the heads of the security service and the ISC. If the ISC is being sought as an endorser of the appointment of a particular head of a particular service, in future it may feel more inclined to defend the action of the person that it has appointed. That is not a major concern; it would certainly not undermine the perceived benefits of such a system, which is used elsewhere in the democratic world to no apparent disadvantage—and to advantage with regard to the solidity of the appointment.

--- Later in debate ---

[Lord Taylor of Holbeach]

I do not wish to prevent the noble Lord intervening but we are on Report. Therefore, I remind noble Lords—

[Lord Foulkes of Cumnock]

I agree with the Minister, who I think has made a good case, and disagree with my noble friend Lord Reid of Cardowan. Members of the Joint Committee on National Security Strategy have already had a report that the line management of the heads of the various intelligence and security services is the responsibility of the Permanent Secretary. That has been made absolutely clear to us. We raised some concerns about that point and I am sure that the noble Baroness, Lady Manningham-Buller, will comment on it. If the Permanent Secretary has that line management responsibility, it would seem strange if these post holders were considered for appointment by a committee rather than by the procedure that the Minister has described. I know that my noble friend on the Front Bench is a bit irritated at what I have said, but I am glad to say that on this side of the House we have the freedom to say what we think.

[Lord Taylor of Holbeach]

Although I am encouraged by what the noble Lord had to say, I should remind noble Lords that we are on Report and it would probably be as well if I was allowed to finish what I was saying. The key thing is that the coalition agreement expressly says that we want to strengthen the role of committees in scrutinising public appointments. The Government are committed to doing that. However, the coalition agreement does not refer to Civil Service appointments. The pre-appointment scrutiny process, which we have in place for public appointments, is not the same as appointments to the Civil Service. Therefore, although the Government have made important progress in meeting the commitment on public appointments, that is not relevant to these appointments if they are Civil Service appointments.

I know that the roles that the agency heads play are very important and the appointments must be right. That is why I hope that I have given the noble Baroness and the noble Lord the reassurance that the process that presently exists for appointing the heads of these agencies is appropriate to the nature of the posts. It would not be appropriate to adopt the pre-appointment process that exists for posts in public bodies. On that basis, I hope that the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and my noble friends Lady Hamwee and Lord Marks will respectively see fit to withdraw their amendments.

I now address Amendments 11 and 12 which concern the ISC holding an annual hearing with the agency heads and the Secretary of State giving evidence before the committee in public. I can appreciate the intention behind the amendment but I have a number of concerns about the idea of creating a duty to hold annual public hearings. As noble Lords will know, The Governance of Britain Green Paper in 2007 made a series of reform proposals aimed at bringing the ISC as far as possible into line with other Select Committees. One of those proposals was for some hearings of the ISC to be structured to allow unclassified evidence to be heard in open session. Those sessions did not subsequently happen. Building on this, the Justice and Security Green Paper noted that while the ISC’s meetings will still have to take place, as a rule, in private, both the Government and the committee were committed to the concept of public evidence sessions where they can be held without compromising national security or the safety of individuals.

The noble Baroness, Lady Smith, spoke powerfully in Committee on the issue of public hearings and she has done so again today. We fully agree that they can be valuable but she noted that public hearings should never be automatic for the ISC but argued that they should become more routine as public confidence is taken into account. We fully agree that public hearings may improve public confidence in the ISC and its work.

The Bill does not need a specific provision for this; the existing ISC, created by the Intelligence Services Act 1994, has power enough to determine its own procedures and that is sufficient for its purposes—the ISC is provided for in the Bill. In that way, there is actually very little difference between the position that we take on the Bill and the position proposed by the noble Baroness. However, there are significant practical issues that have to be addressed before public evidence sessions can take place. I am sure that noble Lords will appreciate introducing public evidence sessions for a committee whose work is mostly concerned with sensitive and highly classified information. That will be challenging.

The Government remain committed to making public hearings work better in practice, and are currently in discussions with the committee about how to do so—for instance, on issues such as appropriate subject matter, timing and having appropriate safeguards against unauthorised disclosure of sensitive information. In Committee, my noble friend Lord Lothian, a current member of the ISC, made the valuable point that public hearings would be counter-productive so far as public confidence in the committee is concerned. If either the majority of the questions posed are met with a response, “I cannot answer that”, or the subject matter for the hearing is anodyne and the process completely rehearsed, I am sure that noble Lords will feel that the process has not been worth while. The ISC will already have the power to hold public hearings with agency heads and with relevant Secretaries of State without any of these amendments. Leaving it to the ISC’s discretion to determine when and how frequently to hold such meetings will enable it to make the best use of its available resources. I hope that I have convinced noble Lords that that is the right approach. I hope, on the basis of this information, that my noble friend Lady Hamwee will withdraw her amendment, and that the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and my noble friend Lord Marks will not move theirs.