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—

National Security Bill

Lord Hacking Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Baroness Manningham-Buller (CB)]

My Lords, I understand the wish of the noble Lord, Lord Marks, to define and narrow this part of the Bill. To a degree, I have some sympathy with him. I would like to answer the Mossad point and make a second point. For Mossad to operate in the United Kingdom, there would be an understanding that it should declare its activity. Therefore, I do not think this problem would arise unless it deliberately chose to conceal it, because it would be seeking support and help.

The second point is that if we make it too narrow about what British interests are, we will exclude those foreign intelligence services—including some of our friends—who act against their own citizens in this country, which we would regard as against British interests in the broadest sense though it does not directly threaten British interests. There is a range of activity that this Bill seeks to capture which is not absolutely directed against the UK but may be directed against other people here and which is unacceptable.

[Lord Hacking (Lab)]

My Lords, I have been out of the House for about three months, and it is very refreshing to come back to your Lordships’ House and one comes back with a rather clear mind. If one just reads the contents of Amendment 12—I have not had time to study the other clauses that the noble Lord, Lord Marks of Henley-on-Thames, is addressing—and the simplicity of it, one wonders what the Government could be objecting to. I, of course, share the concern that the noble Lord, Lord Pannick, should not go to the Old Bailey and be sent to prison.

Nationality and Borders Bill

Lord Hacking Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

[Lord McColl of Dulwich (Con)]

My Lords, I will speak to Amendment 26B. This House has been united in agreeing that improvements are needed to Part 5 of the Bill. The human trafficking sector has made that very clear in briefings to your Lordships. I have kept my endeavours to the support for victims who have been through the national referral mechanism and, by the Government’s own processes, have been confirmed as victims of modern slavery—as people who, by definition, have been through exploitation and trauma.

I am grateful to the Government for their commitment that victims in England and Wales will receive 12 months of tailored support. I am nevertheless extremely disappointed that the Government did not cross the next hurdle for victims and place this commitment in statute.

Last week, the Minister in the other place said that the Government were “unshakeable” in their position on my amendment. It is with regret that I have decided not to insist again—but I shall continue to be unshakeable myself in bringing this matter before your Lordships and the Government. I hope that the Minister will tell us the timetable to produce the guidance to which the Government have committed for confirmed victims. If not, will she give me details today; and, if not, write to me and place a copy in the Library?

I want to put on the record that I am grateful to all those in this House and beyond who have supported me during the passage of the Bill and voted for victims of modern slavery, and I pay tribute to my noble friend Lady Williams for all the help she has given me; I am most grateful.

Before I finish, I also want to raise several questions which fall within the scope of Amendments 53B and 53D. I understand the Government’s need to control immigration and, in my work on modern slavery, I am clearly opposed to organised crime. I understand why the Government have decided to seek a deterrent to those crossing the Channel, but I am extremely concerned that modern slavery victims who seek asylum are the subject of paragraph 14 of the Government’s memorandum of understanding with Rwanda.

We have spent months debating the care and identification of victims of trafficking, and it seems reasonable to assume that the UK is where that identification and care will occur. Please will the Minister set out the Government’s intention on identification and care of victims of modern slavery under the agreement with Rwanda, and in which country identification and care will occur?

[Lord Hacking (Lab)]

My Lords, I have listened to a debate of extremely strong argument and extreme persuasion, but I think it is now time that we got on with the task of sending back provisions of this Bill to the other place for it to reconsider. It is very touching for me to stand up for a moment here, because it is the 50th anniversary—exactly, to the day—of my maiden speech in this House.

[Lord Mackay of Clashfern (Con)]

I have been made anxious by the intervention of the noble Lord, Lord Pannick, in this debate. I have to say that I do not think it is for me to decide whether this is in accordance with the law or not. The Law Officer of the Crown is the Attorney-General, and my understanding is that the Attorney-General has supported the Bill. Therefore, one can take it that her opinion is that it is lawful.

After all, lawyers sometimes disagree, and I am not prepared to put myself in the place of the Attorney-General of this Government. A very distinguished lady is in that office. Therefore, it is right for us to say that, so far as we are concerned, the Government have the advice of the appropriate Law Officer. It is also important that, if necessary, the Attorney-General is the adviser to this House. Therefore, it would be very difficult for us—or at least for me—to proceed on the assumption that this is unlawful. I of course understand the arguments about this, but the ultimate conclusion is that of the Attorney-General, and that, in my view, is why the Ministers in the other place asserted so strongly that this was lawful.

Nationality and Borders Bill

Lord Hacking Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

[The Lord Bishop of Durham]

My Lords, in rising to support Amendment 83, tabled by the noble Baroness, Lady McIntosh, to which I have added my name along with the noble Baroness, Lady Lister, and the noble Lord, Lord Alton, I declare my interests as set out in the register.

I set out my reasons for supporting this amendment in Committee. We should simply not have a situation whereby people, including children, are excluded from the citizenship to which they are eligible because they do not have funds. It is nonsensical for the Government to put up a barrier to people being, and feeling, fully part of our society. The Government rightly talk about the importance of integration, community cohesion and levelling up. This policy works against all three of those.

Being a British citizen is completely different from indefinite leave to remain, and this must be constantly recognised. If people are eligible to be citizens, cost should not be a barrier. The registering of British people’s citizenship should have no revenue function, and fees should be removed altogether for children in care and for those whose registration is provided to correct a historical injustice.

I simply urge the Minister to hear the strength of feeling in the House, accept this amendment and deal with it once and for all.

[Lord Hacking (Lab)]

My Lords, I am wholly familiar with Governments siphoning off funds raised for one purpose and using those funds for a quite different purpose. I was particularly conscious of that during my years as president of the Civil Court Users Association, when the Government collected very large funds on the issue of writs and the other issues needed in the litigation process, and then used that money in a quite different sector of the court system.

I am also familiar with the disproportionate fees, compared to the administration costs, involved in the process of obtaining British citizenship. The noble Baroness, Lady McIntosh, has already given examples of that which I willingly adopt. I am aware too of this problem for a rather more personal reason, in that young members of my family, who have very little resource, have been in the process of obtaining British citizenship and have been heavily penalised—not by £1,000 but by £2,000 and more. They were young, and the family were able to provide the necessary support. But that is an example of the rampant unfairness.

My recollection—I cannot put my finger on it exactly—is that one of your Lordships’ committees recently investigated this problem and issued a report, in which it said specifically that the correct level of fees involved in the obtaining of British citizenship should be based on the administration cost and nothing else. However, the practice continues, and the provision contained in this amendment to Section 68 of the Immigration Act 2014 is very well drafted and sets out precisely what should be done. It reads as follows:

“in setting the amount of any fee in relation to registration of British citizenship the Secretary of State … must not set that amount at a level beyond the Secretary of State’s estimation of the administrative costs of the function to which the fee relates”.

There cannot be a fairer or more precise way of addressing the problem, and I congratulate the tablers of this amendment on the care and precision with which they have done it.

Since I have not tabled this amendment, it is not for me to make the decision about whether a Division should be called. That is a matter for those who have brought it forward. I look down at the leaders of my own party to see how they are going to participate in this issue—we have not heard from the noble Lord on my side what position my party is taking.

I would, however, discourage a Division at this time of night. Certainly, when I was last in the House, a number of years ago, if you put forward an amendment at Report and it had been defeated in a Division, you were not entitled to take it further—to Third Reading, for example. The fact is that those who will be voting in whatever Division is called are not in this House and have not listened to the arguments. It is a kind of routine form of voting, not the measured form of voting that happens after listening to the arguments.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am afraid I have to plead guilty as charged to the point made by the noble Lord, Lord Hacking, since I was chair of the committee on citizenship and citizenship engagement that he was referring to, which had among its extremely able members the noble Baroness, Lady Lister, and my noble friend Baroness Eaton.

We came across this issue, so I have some sympathy with the direction of travel of this amendment. In simple terms, while our committee was sitting the fees for naturalisation were raised to £1202, with an extra £80 if you wanted to have a citizenship ceremony. We were told that the cost of administering was roughly half that, so there was an override of about £600.

To be honest, to forgo the citizenship ceremony, which we were able to attend, would be to miss something. It was an extraordinarily moving experience to watch the people enter enthusiastically into their new life. In the margin of the meeting, they did, of course, tell us about the costs that they had to incur along the way. My major reason for supporting the direction of travel, though, is the point made by the noble Lord, Lord Alton. We are trying to promote people to come forward and anything that dissuades them is a mistake. I am not sure that we must have regard to what other countries are charging. That seems to me not necessarily something that will add to the sum of human knowledge; nor do I think there is necessarily not some room for a bit of a surcharge for the overall administration. But the underlying point is that the margin between the cost of providing the service and the cost being charged is too great.

In my view, this amendment—not in this form, but something like it—would impose some financial discipline at a lower operational level because it would impose some direct responsibility. Once it becomes a sort of global figure, nobody cares about it, is responsible for it or does anything to improve the service it is providing. That is why I think this is going in the right direction, even though I do not agree with all the detail.