Retail Crime: Effects

Lord Hacking Excerpts

Thursday 5th December 2024 Lords Chamber

[The Minister of State, Home Office (Lord Hanson of Flint) (Lab)]

I am grateful to all noble Lords who have contributed to this debate. As the noble Lord, Lord Razzall, said, there is unanimity on the approach to the issue of shop theft, as has been eloquently outlined by my noble friend Lord Hannett. I thank him for securing this timely debate, and all who have spoken in it. My noble friend brings to his role in your Lordships’ House a wealth of experience in standing up for shop workers in his work for USDAW. He is continuing that work in conjunction with his colleague Paddy Lillis, who is the general secretary of USDAW. Most importantly, my noble friend brings the life experience of thousands of members in shops and stores across the United Kingdom, who have contributed to developing USDAW’s policy and, in doing so, the policy of the Labour Party and this Labour Government. They contributed too to the pressure that was put on the previous Conservative Government to take action.

I declare an interest: I have been a member of the Union of Shop, Distributive and Allied Workers for 44 years. I have stacked shelves, worked the tills and delivered to people’s doors, so I know the pressures in retail. The noble Baroness may be interested to know that I did this for Tesco, and later the Co-op.

The important thing is that there is unanimity here today. We need to change the tenor of the debate on shop theft and the protection of shop workers. We have seen today that there is unanimity in this debate: it is not acceptable in our society to steal from shops; it is not acceptable to attack shop workers in the course of their duty; and it is not acceptable to undertake ram raids or organise crime raids on shops and outlets. This is not a victimless crime; it adds money to everybody’s bills and to the cost of strengthening security for staff, and this Government are committed to taking action on it.

We do so for the reasons that have been mentioned by the noble Lord, Lord Hannett, the noble Lord, Lord Kirkham, in a very powerful speech, and my noble friends Lord Monks and Lady Crawley and many others, who indicated that there is an unacceptable rise in the level of shop theft.

I particularly welcome the committee report that was produced. The noble Lord, Lord Tope, was a key member of the committee, along with my noble friend Lord Dubs—who, I must say, on his 92nd birthday is arguing in this Chamber for protection for shop staff and against shop theft. That shows the commitment that he has to his party and his cause but also to the good of the country at large. I wish him a very happy birthday.

Shop theft is up 29% in the year to June 2024 compared with the previous year. The British Retail Consortium crime survey has shown that around 475,000 incidents of violence occur each year. My noble friends Lord Monks, Lady Crawley and Lady Hazarika all mentioned the importance of tackling that crime. Whether it is on Lambeth High Street, in Brixton or in north Wales, where I am heading back this evening, there will be a concerted effort to ensure that we reduce the number of crimes that occur in shops. However, it is not just about the shoplifting; it is unacceptable to have 1,300 incidents of violence against staff in our communities at large.

It is not easy for this Government, and it will never be easy. But the points that the noble Lord, Lord Godson, and other Members of this House made today are extremely important. That is why the Government have a plan for action to both mirror some of the recommendations made by the Home Affairs Committee and Justice Committee of this House, and to commit to a range of things.

On a personal basis, having campaigned for some of these things for the best part of 20 years, I am absolutely delighted to stand at this Dispatch Box and to be able to put action in place, because we have a Government who have committed to do that. Among the actions that we will bring forward and put in place is a specific offence of attacking shop workers, which USDAW—which I am a proud member of—has campaigned for since 2003. Freedom from fear is an absolutely important issue. Shop staff are not just serving us but are upholding the law on alcohol, knife, solvent and tobacco sales. When they find themselves facing threats because of that, they deserve our support and our encouragement. That is why the Government will in due course, as a manifesto commitment, bring forward a specific offence of assaulting shop workers.

I say to the noble Lord, Lord Davies, that the £200 threshold did not change the law but it sent a signal to the police that shoplifting under £200 was not an important issue. I recognised that in 2014 and I led the opposition to that. We forced a vote on that clause then because we thought it would downgrade the importance of shop theft, which, as a whole, it did. We will repeal that in due course and will make sure that the police have proper guidance on those issues.

We will, as a number of my noble friends mentioned, increase the number of neighbourhood police and PCSOs to 13,000, to have a named officer in each community who will work with the local community and look at the very issues that the noble Baroness, Lady Neville-Rolfe, mentioned as well—community intelligence-gathering and community support. Through work we are doing now, which is a continuation of the previous Government’s work, we will look at Opal and Project Pegasus to co-ordinate action on gangs, tackling crime across borders and across police authorities.

There were points made in the debate which I will certainly reflect on, as well as the issue of drug and alcohol treatment orders and on technology, ensuring that we look at facial technology issues as a whole. We will reflect on those issues in due course, and when legislation on these issues comes before this House, which it will in relatively short order, we will be able to deal with those issues as a whole. We keep new technologies under review, and we will keep those technologies under review in the future.

I noticed a small frisson of concern from the noble Baroness, Lady Neville-Rolfe, about the Labour Government’s Budget, which I will return to briefly in a moment. As my noble friend Lord Hannett said, it provided £100,000 for the National Police Chiefs’ Council, £5 million over the next three years to develop Operation Opal and £2 million over the next three years to build the National Business Crime Centre. If the noble Baroness looks at the detail in the Budget, she will see that there are proposals on business rates and on strengthening and revitalising the high street. I have campaigned for these issues over the last 10 to 20 years and I am more than proud to stand here today and say that this Government will take action on shop theft and assaults on retail workers in due course.

The facial recognition technology mentioned by the noble Lords, Lord Kirkham and Lord Davies, is a very powerful tool and has huge potential to keep our streets safe. This gives us an opportunity to look at how we operate it. We particularly want to look at how we can put that on a firm footing to make our streets safe. In answer to their specific point, we want to ensure that we look at the legal framework and discuss that issue with the public over the coming months.

I am acutely aware that this House has been united today. There are no political differences. There may be differences over pressure, time and the things we have done, but there is unanimity that Parliament and Government should take action on these issues. A number of detailed issues were mentioned. I could go through them, but that would take time. I hope that the emphasis I have put on the measures the Government intend to bring forward give reassurance to all Members of this House that this Government are committed to the issue of shop theft.

The noble Baroness, Lady Donaghy, summed up the importance of this issue and how we need to focus on the staff. Shop workers will be on the train with me tonight. They will be on the bus going home. They will be walking the streets around you. They are the people who serve you and they deserve our support. The customers are there to support the staff and we need to make a stand to say that, although we will never eradicate shop theft or violence, it is a priority for the Government, the police and Parliament that, between us, we will help reduce crime, shoplifting and violence over the course of this Parliament.

I commend the measures that my noble friend Lord Hannett has proposed. We will hopefully find widespread support in due course for the measures that this Parliament will face when the Government bring them forward.

[Lord Hacking (Lab)]

Does my noble friend agree that the most shocking account in this debate was given by our noble friend Lady Hazarika who was in a shop when a rogue came in and stole two bottles of alcohol? He was known as a repeat offender and his identity was known. Would my noble friend agree that that is a most shocking account for this framework to improve the law?

[Lord Hanson of Flint (Lab)]

I am grateful to my noble friend for his intervention after I thought I had finished. Repeat offenders are part of a vicious cycle that needs to be broken. Part of that is due to alcohol or drug dependence and part of it is due to interventions in alcohol and drug dependence. That is part of the focus of the Ministry of Justice. The MoJ will look at many measures in relation to how we better tag, control and monitor offenders and what interventions we make to reduce their dependence on alcohol and drugs.

It is important that the revolving door of prison sentences—the cycle of people going into prison for six months, coming out, committing the offences that my noble friend Lady Hazarika mentioned, going back to prison, coming out again and then finding themselves homeless—needs to be broken. I know that my noble friend Lord Timpson, who is accountable to this House, is very exercised by those issues and will bring forward a number of measures to try to improve how we deal with offenders who have a persistent offending behaviour. Overall, the issues of tolerance are still there. We should not tolerate shoplifting, attacks on shop staff or organised crime gangs, and we should look collectively at what measures we can bring. I hope that I have given some indication to the House of how we can do that.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Hacking Excerpts

2nd reading
Monday 29th January 2024 Lords Chamber

[Lord Hacking (Lab)]

My Lords, there are not many advantages to speaking so late in the debate, but one is that you can experience the feeling of the House. I have listened to all 55 speakers who have preceded me—except for four or five of them, when I was out of the House. Of those, 37 Members of your Lordships’ House have spoken against the Bill, including five Members on the Conservative Benches, who made very powerful speeches. We all remember the powerful speeches of the noble Viscount, Lord Hailsham, and the noble Lord, Lord Clarke of Nottingham. Against that, only 10 speakers have spoken in favour of the Bill.

At this time of night, I think it best that I go straight to giving your Lordships my reasons for being strongly opposed to this Bill. Let us work with the facts. In the official statistics issued for 2022, it is recorded that 8,756 Afghan migrants arriving here applied for asylum status. Of those, 97% were granted asylum. This is hardly surprising given the reports that we still regularly receive of breaches of human rights by the Taliban. On the radio only a few days ago, I heard a report that women were not only banned from education but banned from going out to work, creating serious problems for supporting their families.

I turn to the statistics for 2023. We do not have the official statistics yet, but we have been told that there has been a drop in the overall migration figures in relation to the boat people; that has gone down from about 45,000 to 30,000. It is therefore reasonable to conclude that there are now about 5,000 Afghan migrants eligible for deportation to Rwanda.

Let us look at the journey that those migrants have made. The distance from Kabul to Calais is 4,168 miles, nearly double the journey from one coast of the United States of America to the other. I cannot tell your Lordships their exact route, but the assumption is that they took the land route, and that they would have had to go through Pakistan, Iran, Iraq and Syria, then decide whether to go north-east, to enter Europe via Greece, or west, to enter Europe via Italy. They would not have travelled in any air-conditioned coaches, let alone aeroplanes. Their only means of undertaking this colossally long journey must have been by hitchhiking on lorries.

What will happen to those 5,000 Afghans if they are deported to Rwanda—which will follow from the implementation of this Bill if the Illegal Migration Act is held to be lawful? They will lose their UK asylum rights and will be branded as illegal migrants. If they try to get back here, they will be rejected. Therefore, I ask the whole House, looking around to all Benches and those of us still here: is this remotely fair or right? Can we possibly allow this to happen when we have the constitutional right to stop it by refusing to allow the Bill to pass through this House? The question is whether we attempt to do so now, at Second Reading, or later, at Third Reading.

Rwanda Treaty

Lord Hacking Excerpts

Friday 8th December 2023 Lords Chamber

[Lord Hacking (Lab)]

My Lords, if I can just come back again on the issue of money, I have a figure in front of me of £240 million and then £60 million, and that is the Rwanda policy. The Minister rightly draws attention to the daily cost of those kept in various facilities, including hotels—I think he said it was £8 million per day—but the execution of the Rwanda policy will not remove that. There will still be indigenous costs of looking after the migrants who remain here. One has to be worried that so much money is being spent in the direction of the Rwanda policy; there is so much need for money to be used elsewhere—in the National Health Service, in schools and so forth. Therefore, it must be a great worry to all of us that so much money is going in the direction of the Rwanda policy.

[Lord Sharpe of Epsom (Con)]

What is a great worry to the Government is that the costs of the migration system, as I mentioned earlier in answer to my noble friend, have doubled to £4 billion this year. As the noble Lord has just rightly referenced, we are spending £8 million a day on hotels. That is clearly unsustainable and I do not think it represents value for money.

Illegal Migration Bill

Lord Hacking Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I speak to Amendment 76 which, in my view, sets out in the clearest possible terms the principles that should be applied to the power of detention presently under discussion. Indeed, if I have correctly understood the law—of which the noble Lord, Lord Carlile, reminded us—Amendment 76’s principles are principles that are currently being applied by the courts, and will be applied unless this Bill is enacted in its present form.

It is perhaps worth reminding the House of the strategic purpose of the Bill: to deter would-be migrants by the prospect of deportation to their country of origin or to a safe country. In my view, that is a perfectly legitimate objective; nation states are entitled to regulate the flow of migration. However, I also think that, in the modern world, that can be done only by the collective action of countries working together. That may require—I think it probably will—the substantive amendment of existing international agreements and conventions. I think there is very little prospect of unilateral action succeeding, save on the margins of the problem. The policy that underpins this Bill will fail because it will not be possible to deport migrants in sufficient numbers to constitute an effective deterrent.

Given that, I am extremely concerned about the ability of a Secretary of State to use a power of detention to reinforce, rather than to implement, the policy of deterrence. That would be an improper use of the power of detention. I am also deeply concerned that the power of detention as contemplated by the Bill will be used as an administrative convenience: detention without obvious limits of time in the hope that some possible prospect of deportation in respect of an individual will turn up. In my view, that would be highly objectionable.

I come to the four detailed provisions in Amendment 76. They should be considered individually. I will not repeat each one, because the noble Lord, Lord Carlile, has read them out, but just take the first and ask a sensible question:

“the Secretary of State must intend to remove the person being detained and can only use the power to detain for that purpose”.

That seems to be a very fair statement of the law, and we are entitled to know from my noble friend the Minister what the principled objection to such a statement is. The same question applies to each of the remaining three provisions. I will not read them out because the noble Lord already has. Each one of them seems to me to be wholly right as a statement of principle, and this House is entitled to know the principled objection to them if there is one.

As it happens, I think I know the principled objections—at least I know the objections—because they are set out in paragraph 95 of the Explanatory Notes. The Government wish to give the Secretary of State, rather than the courts, the right to determine the length of time deemed to be reasonable for a period of detention. Moreover, when early deportation is not practicable, the Bill will give the Secretary of State the power to detain for such a period that the Secretary of State deems reasonable. That is a huge enlargement in the discretionary powers of a Secretary of State, and I do not want to give any Secretary of State, least of all the present Home Secretary or her immediate predecessor, such additional powers. In my view, the judgment of the legality of detention should be left to the judges and the courts, in applying the principles that are so well set out in Amendment 76.

[Lord Hacking (Lab)]

My Lords, I have been asked by my Front Bench not to speak at all and, if I break that, to speak in the shortest possible terms. I can do that, because I completely support the noble Lord, Lord Carlile, in the speech that he just gave and most particularly in his admonishing the Government for not withdrawing this Bill. I have read the two court judgments and can say only that, until or unless the Supreme Court takes a different view, Clause 2 is a nullity, and that is the heart of the Bill.

Illegal Migration Bill

Lord Hacking Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Hacking (Lab)]

My Lords, I rise—when I get my papers in proper order—to support my noble friend Lady Lister of Burtersett in her Amendment 128A. As she explained, the purpose of this amendment is to remove Albania from the list of safe states in new Section 80AA on page 59 of the Bill.

As I rise, I am looking at the clock at 5.40 am—or rather 1.40 am; happily, we have not got as bad as 5.40 am, and it is certainly better than 4.20 am. I do regret that we are having to debate these important matters so late in the night. My sympathy, first of all, goes to the Ministers: they have had to work so hard on this matter. My sympathy extends to all those friends of the Minister sitting behind him. They seem to have left him now, but earlier there were hordes of them here. But this has happened and it is all part of a purge to get this Bill through in the summer—

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am sure we are all grateful for his sympathy. I am delighted to be here, but we would move forward a great deal faster if we had not had so many repetitious speeches.

[Lord Hacking (Lab)]

Well, my Lords, I do not know whether the noble Lord thought my speech about sympathy was repetitious. I have not heard it yet today, and I give those words of sympathy with great sincerity.

The important thing is to look at the state of Albania. Albania was a communist state under a particularly vicious dictator, Hoxha, until the mid-1980s. Great steps have been made since then, and when the USSR broke its ranks many Albanians worked very hard in democracy. But things have not always gone right. For example, in 1997 the Government of Berisha, who was then the president of the country, collapsed in the wake of pyramid schemes and widespread corruption. More recently, in February last year the president was subject to impeachment proceedings which were stopped only by the Albanian constitutional court.

I mention that because in the number of years that I acted as an international arbitrator and conducted arbitrations arising out of activities in the former countries of the USSR, time and again one came across very serious corruption which led to feuds and sometimes to heinous blood feuds. Corruption is a matter of great concern, and one wonders exactly how the list of safe states was drawn up; in that list are other countries of similar background to Albania—Bulgaria and Romania to name two. One looks at the Nationality, Immigration and Asylum Act to see what the test is, according to that Act, for the Secretary of State to take their decision. In new Section 80AA(3) it says:

“The Secretary of State may add a State to the list only if satisfied that … there is in general in that State no serious risk of persecution of nationals of that State”.


How strictly has that been applied, if it has been applied at all?

As my noble friend Lady Lister said, there is a lot of evidence of significant and outstanding issues in Albania relating to corruption, trafficking, blood feuds, discrimination and violence against the LGBT community, and stigma and discrimination against ethnic Roma and Egyptian communities and so forth. There are real grounds to be concerned whether, on any definition, Albania is properly placed as a safe country. That view is supported in our own Home Office’s work in 2022 when the UK granted protection status to 700 Albanian nationals, including 60 unaccompanied children.

For all those reasons, I hope your Lordships will feel that they should be on the safe side and remove Albania from the list of safe states.

[Baroness Ludford (LD)]

My Lords, I will speak to the proposition that Clause 57 should not stand part of the Bill. Before I do, let me say that there are various myths arising around this Bill, one of which is that the Government are going to deport vast numbers of people, and another is that speeches from this side of the Committee are repetitious. I think it is regrettable that that sort of claim is being made. I referred at the beginning of proceedings today to the fact that this Bill got almost no scrutiny in the other place. As Dr Hannah White, the director of the Institute for Government, said last night on the radio, it has just come to expect that we will do that job.

Illegal Migration Bill

Lord Hacking Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I would like to speak to Amendment 2, which is in my name and those of my noble friend Lord Paddick, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Coaker. I will take just a little while. We had only six minutes at Second Reading and this group is key to the whole Bill. My remarks will follow on almost seamlessly, if I may say so, from those of the noble and learned Lord, Lord Hope.

[Lord Hacking (Lab)]

Did the noble Baroness refer to Amendment 32 just now?

[Baroness Ludford (LD)]

No, I referred to Amendment 2, which is the second one in this group.

Before I move to human rights issues, I want to make a couple of preliminary points. First, it is incumbent on this Committee to subject this Bill to very detailed scrutiny. It proposes to strip human rights protections from a group of people excluded from the democratic process. It is a core part of our justification, as an unelected revising second Chamber, that we do this kind of detailed scrutiny.

In the other place, there was quite a compressed timetable—that is an understatement. Second Reading there was expedited, only a few days after the Bill’s introduction. Instead of the usual detailed consideration and evidence-gathering in Committee, the Bill had only two days on the Floor of the House, during which its provisions were considered out of sequence. On Report, the Government published more than 100 amendments at late notice, dealing with both substantive and highly technical issues, many of major constitutional importance. Particularly in the case of this Bill, it behoves us to carry out intense scrutiny.

My second preliminary point was made in a briefing from the Law Society. It stressed the importance of the UK’s reputation for its commitment to the rule of law and international obligations, including human rights obligations, to our attractiveness as a place to do business. It says:

“Senior representatives of the UK’s biggest law firms have told us they are concerned about the damage non-compliance”


with our legal commitments

“could do to the UK’s economic competitiveness, by undermining the confidence of businesses looking to invest in the UK”.

I think we recently saw a reported drop in UK inward direct investment, and Germany has shot up the list. It is not just for us human rights nerds that international legal commitments are important. Global business places great importance on these issues too.

This is a perilous moment for human rights protections in Europe, as the war on Ukraine by Russia continues and Russia has been expelled from the Council of Europe. The UK’s reputation is strengthened by being not only a founding party to the European Convention on Human Rights but an active, leading member of the Council of Europe. It was therefore good news that the Prime Minister went to the recent Council of Europe summit of Heads of State and Government.

Now is precisely the moment for the UK to lead on the world stage in reinforcing basic human rights norms and international law, including the ECHR. Pushing this Bill through this Chamber when the Government cannot confirm that in their view, multiple provisions in it are compatible with the European Convention on Human Rights, threatens our reputation as a country that upholds international law.

As has been noted by the noble and learned Lord, Lord Hope, the Home Secretary has been unable to make a statement under Section 19(1)(a) of the Human Rights Act that the Bill is compatible with convention rights. This is an extremely unusual step, and it means there is a high risk that the Bill will violate rights under the ECHR. Then, we have a bit of snakes and ladders. We have the Section 19(1)(b) statement, but in a Home Office Oral Statement delivered in the Commons on 29 March—which the Minister repeated here—entitled “Illegal Migration Update”, the Minister for Immigration said:

“Of course, as we reform the asylum system, we will continue to honour our country-specific and global safe and legal commitments.” —[Official Report, Commons, 29/3/23; col. 1017.]

In his letter to us on 27 April, the Minister said:

“As the Minister made clear in the House of Commons, the Government takes our international treaty obligations incredibly seriously”.


We have the statement with the Bill, but when the Home Secretary introduced the Bill, she expressed confidence that it was compatible with international law, as the Minister’s statements have said. However, her justification for being unable to make a statement of compatibility with the convention was that the Government’s approach was “robust and novel”. We are getting considerably mixed messages: on the one hand, the Government cannot confirm that the Bill is compatible; on the other, there are statements from the Home Secretary that she is “confident” and certain that the Bill’s measures are compatible.

How she can have that stated confidence—when she had to make a Section 19(1)(b) statement that she cannot confirm that it is compatible—is a mystery. We have a juxtaposition of different measures. If the Government cannot confirm that the provisions are compatible with the ECHR, it threatens our reputation as a country that upholds international law. I am sorry that I have taken a bit of time on this amendment, but it seems crucial to the whole passage of the Bill through the House.

Finally, I turn specifically to Amendment 2. As the noble and learned Lord, Lord Hope, mentioned, it would remove Clause 1(5) of the Bill, which disapplies Section 3 of the Human Rights Act 1998. I remind noble colleagues that Section 3 places a duty on a judiciary to interpret, so far as it is possible to do so, all legislation

“in a way which is compatible with the … rights”

under the ECHR, which are incorporated into domestic law through the HRA. The effect of the provision in the Illegal Migration Bill is that judges will be unable to reconcile its provisions with our human rights obligations under the HRA and the ECHR. The only option available to the courts would be to issue a declaration of incompatibility under Section 4 of the HRA. However, that merely flags incompatibility to the Executive. The court cannot do anything about it; it just has to flag it, which puts the ball back to the Government to have responsibility to initiate measures to rectify the incompatibility.

The possible likely outcome of all this is that these cases will go to the Strasbourg court. Given that the UK court has already found that there is a violation, because it had to issue a declaration of incompatibility, it is likely that Strasbourg will find a violation, thereby putting the UK on a collision course with the European Court of Human Rights. It would be a serious breach of international law if the UK refused to comply with a binding judgment issued by the Strasbourg court.

All in all, I put it to the Committee that the Government have got themselves in quite a mess with the HRA and the ECHR. Removing the scope of Section 3 of the Human Rights Act suggests that the Government are in fact worried about the provisions of this Bill being incompatible with our international law obligations under the ECHR. Otherwise, what would there be to worry about? If the Home Secretary is “confident” et cetera, leave it to the courts to interpret the Bill’s compatibility with convention rights. If human rights compliance is truly sought by this Government, why is it necessary to oust the duty to do nothing more than interpret the Bill in accordance with the Human Rights Act—if the Bill’s wording can provide for that?

Removing this provision, Clause 1(5), from the Bill, as Amendment 2 requests, would go some way to resolving anxieties about the impact of the ministerial statement under Section 19 of the HRA, whereas retaining the application of Section 3 would help to uphold the UK’s reputation as a jurisdiction which upholds the rule of law and respect for human rights. That is what I suggest should happen.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

My Lords, I largely made at Second Reading all the points I would have wished to make in this debate, and they were admirably made earlier by the noble Lord, Lord Hannay. I look forward to the Minister’s response to the challenge from the noble Lord, Lord Carlile of Berriew, to construe for us the meaning of the Section 19(1)(b) statement. The Minister made a sporting shot at it at Second Reading when he said:

“I think it is fair to say that there has been a misunderstanding of the effect of such a statement. We have designed a scheme that is novel and ambitious”.


One can say that again. He continued:

“as a result, we have made a Section 19(1)(b) statement under that Act. This simply makes it clear that we cannot say definitively that we will win a challenge in Strasbourg. However, we are confident that Strasbourg will respect the will of Parliament and our domestic court processes. We make no apologies for taking this approach. This is what the situation demands and what the British public expect”.—[Official Report, 10/5/23; col. 1921.]

I find that a slightly sinister statement. It seems to carry the ring of, “And the court had better find for us, or else”—and we all know what the “or else” is that is talked about in some quarters. To be fair to the Minister, he did not try to argue that, in a dualist state like us, breaching international law is a legitimate action, but some he cited in his speech are so arguing.

I say to the noble Lord, Lord Hodgson of Astley Abbotts, that if one thinks that these conventions are a bit old and wants to change them, the way to go about that is to call for an international conference and put down proposals for amendments to the conventions. The refugee situation and the problems of asylum are not less now than they were when the conventions were created, so the need to defend and perhaps develop them—there is a case for trying to develop them—is more important now than it was even when they were first set up.

I strongly support Amendment 4. I also support Amendment 2.

[Lord Hacking (Lab)]

My Lords, I support Amendment 4 for all the reasons that almost every Member of the Committee has expressed in the debate, but I will not repeat any of those arguments. I am a little disappointed that we have not heard from the noble Lords, Lord Sandhurst and Lord Wolfson, both of whom are sitting on the Government Benches. As a fellow lawyer, I would be interested to know their position on Amendment 4. I think that I saw the noble Lord, Lord Sandhurst, attempt to stand up, so I may get an answer to that question.

I am going to read to your Lordships a short quotation from the brief I have just received from Justice. I should tell your Lordships that I am on the council of Justice and have been a member for many years. It reads as follows:

“This is a perilous moment for human rights protections in continental Europe, as the war in Ukraine continues and Russia is expelled from the Council of Europe (the leading human rights organisation on the continent). The UK’s reputation is strengthened not only by being a party to the European Convention on Human Rights but an active leading member of the Council of Europe. Now is the moment for the UK to take the lead”.

--- Later in debate ---

To conclude, I simply remind the Committee of the speech just now from my noble friend Lord Hodgson. He explained the growth in numbers. If we do nothing, it may be only 50,000, not the 500,000 or 700,000 this year, but that is the size of a decent-sized town. We simply cannot go on allowing that number to come in without any discouragement to those who want to follow behind. We all know, if we are honest with ourselves, that in the last few years, the numbers coming in seeking asylum, claiming that they are genuine refugees, have rocketed, and I am afraid that that is likely to become a larger number, not smaller, if we do not adopt the measures in the Bill. It contains a carefully interlinked package of provisions—

[Lord Hacking (Lab)]

If the noble Lord looked at the national statistics on immigration for 2022, he would see that the figure is about 47,500 immigrants coming in by boat, but of those, there was a large portion of Albanians, and none of them were permitted to stay; they were shipped back to Albania.

[Lord Sandhurst (Con)]

That may be so, but the numbers are on a rising plane, and it is not simply Albanians now, they are coming from elsewhere. All I say is this. This is a carefully interlinked package of provisions. It may not be attractive or how we have done things in the past, but we face very different circumstances, and I suggest we should not seek to unpick its structure.

Public Order Bill

Lord Hacking Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I support Amendments 46 and 47. I say a very loud, “Hear, hear” to the impassioned intervention of the noble Baroness, Lady Meacher, which was spot on. I want to answer the question of the noble Lord, Lord Deben—on behalf of the Government, noble Lords will all be surprised to know. I thought I would quote what the Home Office Minister said the last time we dealt with this. The noble Baroness, Lady Williams, explained why these new powers were necessary:

“it is not always possible for the police to form suspicions that certain individuals have particular items with them.”—[Official Report, 24/11/22; col. 978.]

That is true, but if that is the basis on which we are legislating—that it is not always possible to know if someone has suspicious items on them—then even though you do not know what the suspicions are, it will be all right to stop and search them. This seems to me to bring arbitrariness into the law in a way that can only be dangerous and will not make any logical sense to anybody outside this House.

Think of the consequences of some of this. The Government keep telling us that this is not about stopping the right to protest, and I will take them at face value on that. But let us consider someone who is not doing anything suspicious or carrying anything suspicious, but who is going on a demonstration. The police have the right to stop them, which means that what is suspicious is that they are going on a demonstration: it implies that. Going on a demonstration is pre-emptively seen as something dodgy, and I therefore become sceptical when the Government assure me that this will not have a chilling effect on people going on demonstrations.

I draw attention to a clause that has not been mentioned in these amendments but is related: Clause 14, which we will not need if we vote down Clauses 10 and 11. It contains a new offence of obstructing a police officer in a police-related suspicionless stop and search—for which, by the way, you can go to prison for 51 weeks or get a substantial fine. This clause indicates why Clause 10 and even Clause 11 are so dangerous: they will destroy any feasible community relations with the police.

The noble Baroness, Lady Chakrabarti, referred to the fact that many women might well be nervous if they are approached for a suspicionless stop and search. In all the briefings we have received, people have drawn attention to what happened, tragically, to Sarah Everard. If the police say they have no suspicions but they are stopping and searching you, you might say, as a woman, “Excuse me, I am not having that; I don’t want that to happen.” In fact, a lot of advice was given to young women that they should not just take it on face value if a police officer approaches them and says he wants to interfere with them in some way. But I want to use a more everyday example.

During lockdown, two care workers I know were walking home from work and sat down on a bench in a park to have a coffee. They worked together in a bubble, giving intimate care to people in the care home they worked in throughout the pandemic. They were approached by a number of police officers, who asked them if they lived in the same home. When they said no, the police officers said they were breaking their bubble—if noble Lords can remember those mad days, that is what it was like. They said, rather jokingly, “We’re taking people to the toilet and working intimately with them day in, day out.” The police officers became quite aggressive, threatening to arrest them and all sorts of things. We know those stories from lockdown. The reason I share this story is that the woman who told it to me had never been in trouble with the police before. She had never been approached by the police in that way; she is a law-abiding citizen who would, generally speaking, support the kind of law and order measures being brought in by this Government. However, because this police officer treated her as though she was behaving suspiciously for having her coffee on a bench, having done a long 12-hour shift in a care home, she said that she will never trust the police again. She argued back and they threatened to arrest her.

I fear that, if we give arbitrary powers to the police to use suspicionless stop and search, this Government might unintentionally and inadvertently build a new movement of people who do not trust the police and are not suspicionless but suspicious, with good reason in this instance, that the police are stopping them arbitrarily and that we are no longer a free society. We should all vote against Clauses 10 and 11 and, through that, destroy Clause 14 as well.

[Lord Hacking (Lab)]

My Lords, I will carry through a bit further the citation from my noble friend Lady Fox of the noble Baroness, Lady Williams, a much-respected Minister at the Home Office. More fully, she said that these powers were necessary:

“To ensure that the police have the ability to proactively prevent protesters causing harm … it is not always possible for the police to form suspicions that certain individuals have particular items with them.” —[Official Report, 24/11/21; cols. 977-78.]


That leaves me with a sense of nervousness, for the same reason as the noble Lord, Lord Debden, who unfortunately seems to have left the Chamber—

[Baroness Jones of Moulsecoomb (GP)]

He is called the noble Lord, Lord Deben.

[Lord Hacking (Lab)]

I have never been very good on the rivers of Essex.

[A noble Lord]

It is in Suffolk.

[Lord Hacking (Lab)]

For the reasons that the noble Lord gave in his short speech, these statements by the noble Baroness, Lady Williams, who is greatly respected in this House, make me nervous.

[Lord Wolfson of Tredegar (Con)]

My Lords, as we are on Report and not in Committee, I will make three short points.

First, the noble Baroness, Lady Jones of Moulsecoomb, is quite right to refer to our freedoms. I am sure that she intentionally used the plural and not the singular, because there are two freedoms here that we need to have regard to: the undoubted freedom to protest and demonstrate, and the freedom to go about your business unhindered and not be harassed. Ultimately, in a democratic society we seek to balance those two freedoms. We need to have regard to both sides of that coin.

Secondly, on the objects that could be caught by these clauses as drafted, a number of references have been made to John Lewis—I do not know whether its publicity department is grateful for that. It would be a misconception to proceed on the basis that, merely because an object has been or could be bought in John Lewis, it is therefore inoffensive and should not be caught by the criminal law. The last time I was in John Lewis, which I accept was some time ago, it sold very large knives, hammers, ropes and other implements. Let us put the John Lewis point to one side; it is a good old-fashioned red herring.

Thirdly, I turn to what the clause provides. The noble Lord, Lord Deben, and the noble and learned Baroness, Lady Butler-Sloss, focused on the powers of the constable in Clause 11(7). The important thing about Clause 11(7), I would suggest, is that you have to read the clause as a whole. Clause 11(1) starts with an officer at

“or above the rank of inspector”

believing, first, that some offences are going to be committed and, secondly, that people will be carrying prohibited objects, which are defined in the clause. Next, that officer has to reach three conclusions under subsection (4). I invite noble Lords to look at subsection (4), because “necessary” appears there three times. He has to believe reasonably, first, that

“the authorisation is necessary to prevent the commission of offences”;

that the “specified locality”—it has to be a specified locality—

“is no greater than is necessary to prevent such activity”;

and that the period of time, which cannot be more than 24 hours, is no more than is necessary. What can the superintendent do under subsection (5)? All they can do is to continue that authorisation—not start it, but continue it. For how long? No more than a further 24 hours. It is in that context that the constable can apprehend and do a stop and search.

National Security Bill

Lord Hacking Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

My final point was raised by the Constitution Committee. Can the Minister explain why there is such a significant difference between the maximum sentences proposed for offences created by this Bill and those in the Official Secrets Act 1989, which will remain in force when the Bill is enacted? As the Constitution Committee report says, this may lead to different sentences being available for offences applied to the same conduct, depending on which Act is used with respect to a particular individual. That will give rise to legal uncertainty. Can the Minister explain why there are different sentences, including life imprisonment, in this Bill, soon to be an Act, and the Official Secrets Act? Does the Minister agree that this is yet another reason to bring forward reform of the Official Secrets Act 1989? The Government need to get on with reforming that Act. They seem to have said that they will do it; it would be helpful if they categorically confirmed to the Committee that that is their intention.

[Lord Hacking (Lab)]

My Lords, I again find myself the only Back-Bencher of my party in the Chamber. This time I cannot claim to be speaking on their behalf, although last time I intervened I felt that I had sufficient support from Labour Members who were not here to be able to speak at large on behalf of the Back-Benchers.

I have an entirely technical point. My noble friend Lord Coaker has tabled an amendment which he described to the House and in the Marshalled List as being intended to probe

“to what extent the Bill furthers the government’s objective to update the Official Secrets Act 1989.”

Of course, in Schedule 16, at the end of the Bill, we see what the Government are doing about repealing—or otherwise—previous Acts, going right back to the Official Secrets Act 1911, as my noble friend Lord Coaker mentioned.

As I say, this is a technical matter. I do not ask for it to be dealt with this evening, but perhaps the Minister’s officials and advisers could look at this. When the Bill was before the House of Commons, the Law Commission gave oral evidence and then submitted written evidence. In that written evidence, it took up the issue of the Official Secrets Acts 1911 and 1920 and commented on their provisions. The Law Commission said, in its recommendation 9:

“The offence of doing an act preparatory to espionage should be retained. Save for that, section 7 of the Official Secrets Act 1920 should be repealed.”


If we turn to Schedule 16, we learn that the Bill proposes to repeal those Acts in their entirety. The question is, therefore, why the written report of the Law Commission is not being followed. There are great complications when you start having to sew old legislation into modern legislation, and as I have complained before, the legislative process has become too complicated. This is not something to be answered now. The Minister can be relieved of having to give any explanation at the moment, but I wondered if it could be carefully looked at.

[Baroness Kramer (LD)]

My Lords, I thank the noble Lord, Lord Coaker, for his supportive words on the key aspects of my Amendment 120. Obviously, I have not participated in the broader issues of the Bill, but I think I can say on behalf of my colleagues that we are very impressed by his amendment. The probing character of an amendment, certainly in Committee, is a very important tool to try to get responses from the Government.

Given the late hour, I want to focus specifically on my Amendment 120. We heard at Second Reading—in a sense, it has been repeated at various points in Committee; I have been following this a bit in Hansard—how concerned former leading members of the intelligence community are about the consequences of public disclosure. I think the Government have echoed that. There is one very good way to avoid public disclosure, and that is to have an excellent whistleblowing regime and process. That is exactly what my Amendment 120 seeks to do. I understand that my amendment is not ideally drafted, but my goal is to generate a proper and, I hope, fruitful discussion. That is one of the reasons I am rather sad that those former leading members of the intelligence community are not in their places today, but perhaps they will pick up this issue afterwards.

[Lord Hacking (Lab)]

They are not here this evening; they were here earlier.

[Baroness Kramer (LD)]

Yes, they were here earlier.

My preference would be to create an overarching office of the whistleblower covering all public and private activity, as I have proposed in my Private Member’s Bill. However, failing that, I suggest that much more immediate action could take place within the security and intelligence services.

Whistleblowers are essential in any and every field of activity. People err and power is abused, and whistle- blowing is both the best deterrent and often a necessary step to cure. But organisations so often welcome whistleblowers in their speeches, and perhaps in very general policy terms, but not in the practical reality.

I have to keep a good distance from sources because here in the House of Lords we do not have the power to protect their confidentiality. But over and again, the message comes that, in the security and intelligence services, various schemes—not all, but various and significant ones—are actually dysfunctional. Retaliation happens and is not exceptional, in the form of career destruction and the threat of the use of the Official Secrets Act—it may be entirely inappropriate, but it is a very frightening threat. Follow-up and proper investigation rarely happen. Instead, wagons are circled and retaliation begins.

In this, I have to say that the intelligence agencies are really no different from so many other parts of the public sector. We have to look only at the experience that the Metropolitan Police is currently going through to realise that there is a certain inbred complacency in many organisations. They are certain if you ask them that they have excellent processes in place, but then some event triggers and exposes problems that have lain underneath for a long time.

At Second Reading, I gave an example of a whistle- blower who spoke out using the existing systems to expose evidence that key equipment was being sourced from a hostile foreign power. That person is still suffering the price of a destroyed career.

Also at Second Reading, in explaining that he had worked with the intelligence community for more than 40 years, the noble Lord, Lord Ricketts—I think quite unwittingly—gave another, even more serious illustration of the dysfunctional nature of the system. Referring to the earlier speech that day of the noble Lord, Lord Tyrie, and his reminder that in regard to extraordinary rendition

“Britain appears to have been involved in at least 70 cases, according to the 2018 ISC report”,

the noble Lord, Lord Ricketts said,

“in my experience, the men and women of the intelligence community were profoundly shocked by the revelations of what had happened in those fraught months and years after 9/11.”—[Official Report, 6/12/22; cols. 137-39.]

I am sure that some people, including the noble Lord, Lord Ricketts, were profoundly shocked, but with at least 70 cases, a significant number of people, including those at senior level, must have known, knew it was wrong and either decided or were persuaded to do nothing, because of misguided loyalty, a culture of cover-up and fear that retaliation would destroy their careers.

Speaking out is frightening, disloyalty being the least of the accusations that typically follow. Each person to pluck up the courage to speak out needs to know exactly who they can go to to speak safely and how they can initially do it—most of them wish to do so anonymously initially. They cannot turn for information or advice to a colleague, as that exposes who they are. They cannot go to a senior person, as that exposes who they are. They should never look on the intranet or internet because that is traceable. Even in the health services, nurses use burner phones to report wrong behaviour. A whistleblower has to be absolutely confident that the person they speak to has both the will and, even more importantly, the authority to follow up and investigate an act. That is what whistleblowers look for.

However, it is much more than that. Confidentiality, which is often seen as the greatest protection for a whistleblower, is almost impossible to sustain once an investigation process starts, because the issue and the information themselves direct anyone who is interested to the identity of the whistleblower. So it is absolutely crucial that any person or body that a whistleblower goes to can provide them with protection or, where things go wrong and there is retaliation, with redress.

National Security Bill

Lord Hacking Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

The dangers of Clause 28 were rightly and strongly flagged in the Commons, and either of these solutions would be a great improvement. What happens on Report will, of course, depend on the options that are before us, and I hope that before we have to select an option of our own the Minister will be able to give the debate some direction; first, by telling us when the security-cleared ISC or independent reviewer will be able to advise us of the extent of the problem in relation to the Armed Forces as well as the intelligence agencies; and, secondly, by indicating which way he proposes to go in response to that problem.

[Lord Hacking (Lab)]

My Lords, I follow on from the early comments from the noble Lord, Lord Anderson, about the confusion and difficulties of interpretation of the provisions before us and similar provisions that have created certain headaches, which he referred to, for those who have a responsibility to enforce our laws. I have already complained about the length of this Bill, which has 65 pages and schedules of double that length. Once again, we are not having any thoughts about the users of the Bill, those who have to enforce the provisions of our legislation. I refer to members of the Security Service, the Secret Intelligence Service, GCHQ, police officers, lawyers—perhaps we have no compassion for their difficulties in interpretation, although I do as I am a lawyer—right up to the judiciary. I am sorry if I am bleating again about this problem, but it continues in our legislation and here is another bad example.

Since I am standing up, I shall make a few comments about the provisions in Clause 28. There must be extreme worry that they give Ministers and officials effective immunity from crimes such as targeted killing and torture. Clause 28 blocks accountability for Whitehall involvement in war on terror crimes and, to take a broader view, Clause 28 undermines the UK’s centuries of legal prohibition of torture-related crimes and the UK’s position when criticising other Governments for their crimes. One thinks of the example of the awful murder of Jamal Khashoggi in Turkey. Indeed, looking broadly at these provisions, one is reminded of President Bush’s tenure of office in the United States of America, when certain members of the Justice Department issued papers justifying torture, such as waterboarding and so forth, and saying that it fell within the constitution of the United States. This Bill brings out many of those unhappy memories.

As for the alternatives, we have had the alternative of the noble Lord, Lord Purvis, who said towards the end of his speech that he agreed with my noble friend Lord Vernon, and of course he is quite right about that. Oh, sorry; Coaker is his surname—I am referring to my noble friend Lord Coaker with extreme familiarity, and to his application to remove Clause 28 altogether.

I have not been able to study this in detail, but I am told that the provision proposed by the noble Lord, Lord Anderson—I mentioned this to him outside in the Lobby, just before we came in—does not go far enough to disable sanctuary to Ministers of State and so forth. We are not saying that they are going to commit these crimes, but our law should not permit those down the line to do so. It is all right for the top members of the intelligence services to behave themselves, but then you may not get the same dicipline down the junior line and there is misbehaviour that should be punishable and for which there should not be immunity.

[Lord Beith (LD)]

My Lords, the provisions of this clause and its defects have been set out very well by my noble friend Lord Purvis of Tweed, and there has been some really helpful analysis from the noble Lord, Lord Anderson.

I will just make a preliminary point. The inclusion of the Armed Forces in this provision is wholly inappropriate, simply on the basis that it is the wrong place to deal with what is a much wider problem and raises many other issues—battlefield situations; civilian situations such as we experienced in Northern Ireland, where we have had difficult court cases to deal with; and issues around the proper defence that veterans might wish to advance when involved in contentious matters. To push this into a provision about intelligence services does not seem the right way to deal with it.

One qualification that the noble Lord, Lord Anderson, made was that there may be a case for including actions of the Armed Forces in direct support of the intelligence services, but that is as far as I think it reasonable to go on an issue of wide importance that affects the international reputation of this country. I would rather we were simply dealing with the issue of how we provide the appropriate cover for intelligence services when they have reason to act outside the law. What an easier world it would be if we never asked intelligence services to act outside the law, but that is not possible. The range of things that intelligence organisations can become involved in if they are acting outside the law includes things that, on discussion and explanation, most people would find understandable and acceptable, right through to things that are utterly unacceptable—and which have happened. We think particularly of torture and rendition to torture, which has been our worst recent example. Many people would understand that, if you are dealing with a covert human intelligence source engaged with a terrorist group or some other group of people, at some point you will inevitably get into a situation in which both that source and the officer running that source have questions about what is permissible. You need a mechanism that can handle those things, and we thought we had one.

The provisions we have had until now have worked in a wide range of cases, and the ultimate recourse in difficulty is the decision of the Attorney-General on whether a prosecution is in the public interest. On the face of it, it perhaps looks too limited in some ways but, as I say, for the most part it has worked. There is a case being made now that in some situations it is not sufficient, but to move from that to a general immunity, not restricted in the kinds of illegality it can cover, is worrying and dangerous. To do so by way of a system that does not embody authorisation at its heart is a really serious mistake, and I am glad that the noble Lord, Lord Anderson, touched on this.

It cannot be acceptable for an intelligence agency to be able to act in a way which goes outside the law, without having had to make reference to some democratic authority before doing it, whether by way of a class provision or because of the serious nature of the specific incident or action that is involved. Were we to allow that to happen, which will be the case if this provision goes through unamended, Ministers could then always say “I knew nothing about it—it’s not part of my job to know. I just tell them to get on with it and let me know when they’ve finished”. That situation is not acceptable for either Ministers or the agencies, which then of course take all the blame and have to make political decisions—for example, on whether taking such action is going to cause massive international complications. Should an intelligence agency decide that, or should it be decided at the highest political level? Of course, it leaves accountability out of the system altogether.

The accountability is inevitably limited by the nature of what we are talking about. It may depend almost entirely on the judicial forms of accountability which the noble Lord, Lord Anderson, helpfully described—the commissioners and the tribunal, supported also by the work of the Intelligence and Security Committee, which should be told more about the kinds of operation that have to take place. There are mechanisms to have that accountability, which will only rarely be able to be exercised on the Floor of this Chamber or that of the Commons because of the nature of what is being done, but there should be a process of authorisation.

What I fear out of all this is either Ministers being able to say, “This is all very regrettable, but I knew nothing about it”—when it is not something that Ministers would be consulted about—or a situation in which the service says, “We’d better not tell the Minister because it would be very difficult for him to authorise this”. These are great dangers, and we must not pass legislation which fails to address them.

National Security Bill

Lord Hacking Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

Schedule 3 agreed.

[Lord Hacking (Lab)]

My Lords, I wanted to say something about Clause 23 when it was the right moment; I think this is the right moment, without breaking the rules, and I got a nod from the clerk, so I have that assurance.

I am afraid I have not yet been able to get into the details of the Bill, but as I told noble Lords, I have been out of the House for three months, and I am taking a bit of time to get back into the business. There seems to be some discontent on the Government Benches: am I offending somebody? Apparently not.

I received a brief from Reprieve, which says of Clause 23 that it could give Ministers and officials effective immunity for crimes such as targeted killing and torture, and would destroy the UK’s moral authority in condemning crimes such as Jamal Khashoggi’s murder by Saudi Arabia. Clause 23 would thwart accountability for Whitehall complicity in torture—

[Lord Purvis of Tweed (LD)]

I wonder whether the noble Lord is considering Clause 28 rather than Clause 23.

[Lord Marks of Henley-on-Thames (LD)]

It might help the noble Lord to know that there are a number of amendments tabled to Clause 28, which is a controversial clause and will be debated on the first day of the new year, I suspect.

[Lord Hacking (Lab)]

I am very relieved to hear that, because I received this stunning brief which I thought, without necessarily understanding its contents, I should bring to noble Lords’ attention.

While I am on my feet, I shall just make one other observation which I think is important, relating to the size of the Bill and particularly the size of the schedules. The Bill is 65 pages long and the schedules stretch to 124 pages, which is very close to double the size of the Bill. I have spoken about this before on other Bills: there is a terrible disease now among those handling legislation, and we are included, which means that the legislation is of inordinate length. I draw the Committee’s attention to the Occupiers’ Liability Act 1957. That contains important provisions relating to landlords and the occupiers of their land. It stretches no more than 10 pages, and is readable in its entirety without having to take a magnifying glass.

Clause 23 agreed.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord, Lord Coaker, for introducing this group. As he noted, I will speak to Amendments 61 and 63 in my name, which are inspired, as usual, by the report of the Joint Committee on Human Rights. My amendments relate to Schedule 6, which applies the conditions for arrest and detention without warrant under Clause 25.

We are concerned that some of the protections in the schedule are not adequate to guard against a descent into somewhat arbitrary detention. The initial period of detention permitted is 48 hours, and there is supposed to be a review at least every 12 hours. There can then be a judicial warrant for up to seven days after the initial arrest, subject to a further extension up to a total of 14 days. Although that judicial part has certain guarantees, there are still elements which cause us concern, including when the detainee and their legal representative may be excluded from parts of the hearing, or an application may be made to withhold certain information relied upon by the authorities. To be denied sufficient information to counter any claims made against them or to be excluded from the hearing are serious moves. Obviously, these themes have been encountered before in anti-terrorism legislation, but we are concerned, for instance, that the use of detention could be based on undisclosed or closed material where the concern relates solely to proceeds of crime.

My Amendment 61 is about where there could be a power to delay allowing the detainee to have a named person—a family member or a friend, for instance—informed of their detention and having the right to consult a solicitor, including where the officer has reasonable grounds for believing that the person has benefited from criminal conduct or where the recovery of property of value would be hindered by allowing access to a solicitor or notification to a named person. These are very serious impediments to accessing basic rights for a person detained without charge. The JCHR feels that, while these restrictions may be proportionate if necessary for imperative reasons of national security, such as to prevent immediate harm to persons, the case is less compelling where the objective is solely asset recovery. Therefore, Amendment 61 aims to delete paragraphs 9(4) and 9(5)—I hope they are still paragraphs 9(4) and 9(5)—of what is now Schedule 6; the moving story which has tripped up other noble Lords also applies to schedule renumbering.

[Lord Hacking (Lab)]

My sympathy lies with you.

[Baroness Ludford (LD)]

And mine with you. I look forward to the debate on Clause 28.

The Government’s response, which we finally received, does not seem very strong. It says:

“The Government considers that, if the matters relate to the proceeds from crime from state threats activity, in most cases this will be highly sensitive information and every effort should be made to prevent the suspect from having any knowledge that our law enforcement agencies are aware of where these proceeds are located.”


I may have missed something, but while the whole Bill is about national security, I am not sure that the condition that the proceeds from crime arise from state threats activity is there. Maybe it is in Clause 25. I ask the Minister to follow up on paragraph 88 of the Government’s response to clarify whether I am being insufficiently on the ball and whether that further condition that the proceeds of crime arise from state threats activity is there. Otherwise, it does not seem to us pertinent that you should be able to withhold information, stop access to a solicitor and stop allowing people to let others know where they are if it is specifically about asset recovery. Important though that objective undoubtedly is, this is a National Security Bill.

On Amendment 63, the contention I make, inspired by the JCHR, is that the reviews of detention without warrant should be able to be postponed only for well-defined and justified reasons. At the moment, it can happen where

“no review officer is readily available”

or

“it is not practicable for any other reason to carry out the review.”

That seems to us illegitimately broad.

In their response, the Government give an example, saying

“these provisions ensure a wide range of instances”—

that is certainly true—

“which might result in a review not being able to be carried out are covered – for example, if the suspect is undergoing medical treatment. It would be impossible to outline every scenario that may impact a review … therefore this approach”,

which I would describe as wide,

“is preferable.”

The example of a detainee undergoing medical treatment does not cover or justify the “no review officer is readily available” reason. It might fall under the other arm—“it is not practicable for any other reason to carry out the review”—if the detainee is ill and is being supported with medical treatment. However, postponing a review because no review officer is readily available is based on a staffing matter; the detainee really should not be put in this position because somebody—the Home Office, the MoJ or whoever—is unable to supply a police officer or whoever else is in charge to carry out the review.

Therefore, I ask the Government to have a further look at all this. Their responses are weak and the danger is that, however serious the context, we have to maintain standards of safeguards of civil liberties and human rights wherever possible, and I am not sure that these texts as drafted in Schedule 6 give sufficient guarantees of proportionate and legitimate restrictions on guarantees against arbitrary detention.

[Lord Hacking (Lab)]

I will just say hear, hear—the Bill is far too long and far too complicated.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions. I speak first to Amendment 60, tabled by the noble Lord, Lord Coaker. First, I thank him very much for the frank way in which he posed his questions, and I am glad to say that I can answer the first tranche of his questions simply with yes. I will set out in more detail why that is.

The amendment relates to the power for the Secretary of State to designate sites where those arrested under Clause 25 can be detained. There was a lively debate on this topic in the other place, which led to the Government carefully considering this issue and amending the Bill to provide for the sites to be designated only if they are in the UK. As the noble Lord observed, this provision can be found at paragraph 1(1) of Schedule 6, and I can confirm that is indeed the case. That states that the power

“may be exercised only in relation to land or a building in the United Kingdom which is owned or controlled by a police force”—

so that is any police force.

The Government consider that the amendments to Schedule 6 in the other place have sufficiently clarified the need for and the intention behind this power and I understand that this satisfies the noble Lord’s concerns regarding where the sites may be located. Just to confirm, the power therefore extends to the MoD Police, the British Transport Police, ,the Civil Nuclear Constabulary, et cetera, and there are no special arrangements in relation to Northern Ireland.

Clause 25(6) confirms that a 24-hour detention period can be extended by a reviewing officer to a maximum of 48 hours. The first review is as soon as reasonably practicable after arrest and then this must be reviewed at least every 12 hours, obviously up to the maximum.

The noble Lord mentioned arrest abroad. UK constables do not have the power of arrest abroad and the powers therefore do not therefore extend to Armed Forces police abroad. Any relevant people would be arrested by local officers and extradition would be arranged in the conventional way.

I will return to the topic of oversight later but I can confirm that His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a statutory role in inspecting all police forces under Section 54 of the Police Act 1996, about which the noble Lord knows. That body regularly inspects all aspects of policing, including places of detention. Given that any sites designated under this power will be under the control of the police, they would automatically be subject to their inspection, and the Government therefore believe that there is no need to include a further statutory inspection regime as this will be duplicative.

I can confirm that it was never the Government’s intention to designate sites located outside the UK. This amendment clarifies the policy position. In Northern Ireland, the Police Service of Northern Ireland is subject to annual statutory inspection by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services under Section 41. Similarly, in Scotland, His Majesty’s Inspectorate of Constabulary in Scotland provides independent scrutiny of Police Scotland and the Scottish Police Authority. We do not consider it reasonable to interpret this to include locations under the temporary control of a police force, such as a crime scene.

Amendments 61 and 63 in the name of the noble Baroness, Lady Ludford, are to Schedule 6. They seek to implement two of the recommendations from the Joint Committee on Human Rights’ report on the Bill. The first amendment seeks to remove the ability for the police to delay a suspect’s access to certain rights while being detained under the arrest power in the Bill for solely asset recovery reasons; I will address this first, if I may.

If the police have intelligence to suggest that a detained suspect has property that is connected to suspected criminal activity—for example, cash—and might use their permitted communication with a named person or their solicitor to ask them to take steps to move cash or property on the suspect’s behalf, to hide evidence or otherwise ensure that the asset cannot be seized by the police, it is clearly right that the police should be able to delay that communication taking place while they seize those assets, gather associated evidence and ensure that crime does not pay. I believe that the safeguards written into the Bill as drafted are sufficient when delaying these rights. The direction to delay must be given by a senior police officer, who must have reasonable grounds to believe that allowing access to these rights at that point in the investigation will hinder recovery of the property.

Additionally, it is written into the legislation that the suspect must be allowed to exercise both these rights within the first 48 hours of detention, so there will not be a situation where a suspect is detained for longer than this without exercising these rights. More details on this process will be contained in the code of practice made under this part of the Bill, including the fact that any delay in these rights must be recorded in the custody record and the suspect must be informed of the decision. Similar provisions can be found in PACE Code H, which operates for detentions under the Terrorism Act 2000.

I turn to the noble Baroness’s second amendment—