Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Jay of Ewelme Excerpts

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

[Lord Jay of Ewelme (CB) [V]]

Let me start by congratulating our three maiden speakers on their excellent speeches. Like others who have spoken today, I welcome the intention behind the Bill. Putting on to a statutory basis the authorisation of otherwise criminal acts committed by covert human intelligence sources is now clearly necessary. It is in the interests of both the agents themselves and of those authorising them to engage in what would otherwise be criminal conduct. However, as the report of the Joint Committee on Human Rights says, it is essential that such authorisation is

“subjected to careful constraints, exacting scrutiny and effective oversight”,

and those are the areas on which I wish to focus today.

First, there is the scope of the criminal conduct authorisation. Authorising a CHIS to commit murder, torture or sexual violence is pretty hard to swallow. I recognise the difficulties and potential dangers in trying to draw the line between, as it were, crime and abhorrent crime, and I recognise that in difficult and dangerous circumstances, lines can be crossed, but I remain to be convinced that drawing such a line and excluding the gravest crimes from blanket authorisation cannot and should not be attempted. The arguments of my noble and learned friend Lord Hope were highly relevant here.

I raise one specific point. The Government have argued that there is no need to include explicit limits on, for example, murder and torture, because these are prohibited anyway under the Human Rights Act. As I understand it, and as the noble Baroness, Lady Kennedy of The Shaws, has argued—perhaps I am wrong here—the Government have argued separately that the Human Rights Act should not apply to abuses committed by their agents. I look forward to the Minister’s comments on that point.

I make one final point. If I were an authorising officer, however highly I had been trained and however carefully I had absorbed the code of conduct—which I have indeed read—I would want as much cover and protection as I could get. The arguments for and against prior authorisation clearly need to be examined in Committee, and I certainly see merit in the proposal of my noble friend Lord Anderson of Ipswich that an authorisation should be reported in real time to the Investigatory Powers Commissioner.

Brexit: Refugee Protection and Asylum Policy (EUC Report)

Lord Jay of Ewelme Excerpts

Tuesday 22nd September 2020 Grand Committee

Moved by

[Lord Jay of Ewelme]

That this House takes note of the Report from the European Union Committee Brexit: refugee protection and asylum policy (48th Report, Session 2017–19, HL Paper 428).

[Lord Jay of Ewelme (CB)]

My Lords, I am grateful for the opportunity today to debate the EU Committee’s report, Brexit: Refugee Protection and Asylum Policy. The report was produced by the former EU Home Affairs Sub-Committee. As the chair of that committee, I would like to thank its members for their contributions to this report and those who provided written and oral evidence to the committee. I also thank the committee’s secretariat as it was constituted at the time—Pippa Patterson, Megan Jones and George Stafford—for their help with the inquiry and preparation of this report.

The report was published on 11 October 2019. As a result of the disruption caused by the Covid pandemic, we are debating it only today, but the concerns it raises about refugee protection and asylum policy are as important as ever. The Government replied to the report on 16 March and a further reply, as well as a reply to a letter from the noble Lord, Lord Ricketts, chair of the successor committee, was received earlier this afternoon. I am afraid I have not studied it in detail, but no doubt the Minister will be able to summarise it in winding up the debate.

The EU Committee of the House of Lords has a long -standing interest in the area of asylum and international protection. Through its scrutiny and inquiry work, the Home Affairs Sub-Committee examined EU policy and legislation in this field, including in our 2016 investigation into the plight of unaccompanied refugee children. The work of scrutinising asylum and refugee protection matters, among others, is now in the hands of the EU Security and Justice Sub-Committee, under the chairmanship of the noble Lord, Lord Ricketts, from whom we shall hear later in this debate.

The Home Affairs Sub-Committee undertook its inquiry, which led to this report, because we were concerned by the lack of attention paid to refugees and asylum seekers in the Brexit context. We therefore decided to examine how they may be affected by the UK’s withdrawal from the common European asylum system, especially in the event of no deal. We also considered how leaving the common European asylum system would affect the UK’s asylum system and explored priorities for future UK-EU asylum co-operation, including a possible UK-EU agreement and bilateral co-operation with individual member states. As well as taking evidence from a range of witnesses in the UK, we visited Oslo to learn more about how Norway, as a European country outside the EU, works with the EU in the area of asylum and migration management.

The report’s findings raised clear and significant concerns about refugee and asylum policy in the context of Brexit. It concluded that the most significant implication of leaving the common European asylum system would be the loss of a safe, legal route for the reunification of separated refugee families. In particular, the committee was concerned about a potential reduction in the rights of vulnerable unaccompanied children, who would have more limited reunification rights under UK Immigration Rules than under the Dublin system.

The report therefore concluded that there remains a clear, shared interest in maintaining UK-EU asylum co-operation after Brexit, ideally as part of a wider strategic partnership on migration, in order to help manage the flow of people from one end of Europe to the other. Secondly, the report concluded that continued UK-EU co-operation will help to ensure that asylum seekers and refugees, some of the most vulnerable groups in society, can exercise their right to claim asylum and receive the support they need to rebuild their lives and integrate into new communities in a timely and humane way.

The report then summarised how a future UK-EU asylum relationship should operate. It should take the Dublin system as its starting point, establish a framework for the speedy resolution of family reunion cases, maintain all routes to family reunion available under the Dublin system, together with robust procedural safeguards to minimise delays in reuniting separated refugee families, include a returns mechanism, ideally based on continued UK access to the Eurodac database of the fingerprints of asylum seekers, and have at its heart a shared commitment to uphold minimum standards for refugee protection, asylum procedures, qualification and reception conditions.

Relevant to the committee’s concern that Brexit could reduce the family reunion rights of unaccompanied children, the committee also called for UK family reunion rules to be expanded to allow refugees in the UK to bring their adult children to join them and to allow unaccompanied refugee children to sponsor their parents. Every country in the European Union does this. We reiterated the finding of our 2016 report that there was no evidence to support the UK Government’s belief that allowing children to sponsor their parents would encourage people to send children to Europe alone in order to act as an anchor for other family members. I should like here to pay tribute to the noble Lord, Lord Dubs, for all his efforts over many years to protect the rights of refugee children and for the valuable evidence that he gave to our committee.

The committee also concluded that UK Ministers should moderate the language they use when discussing asylum issues and should take pride in, and be vocal advocates for, protecting refugees from persecution. While directed at the UK Government, this recommendation is relevant across the EU where, since the 2015 refugee crisis, there has been an increasing tendency to present legitimate asylum seekers as a threat and as people to be feared.

The report also addressed the important question of what should happen if the EU and the UK do not reach agreement on these matters by the end of the transition period if there is no deal. In those circumstances, it proposed an interim agreement to ensure that separated refugee families do not find themselves in legal limbo and at risk of falling into gaps in the system. We suggested that a temporary extension of current family reunion arrangements would be the most feasible option.

The Government’s response to our report contained some positive elements. Reflecting some of the report’s conclusions, it said that that the Government were committed to seeking

“a close partnership with the EU on matters of asylum and … migration.”

It also reiterated the Government’s commitment, first set out in the Command Paper on the negotiations in February this year, to negotiate a reciprocal agreement for family reunion of unaccompanied children seeking asylum in either the EU or the UK. However, the response did not comment on whether the Government plan to seek an interim agreement to support refugee family reunion if a deal with the EU is not reached on migration and asylum by the end of the transition period. Nor did it state whether the Government are committed to ensuring minimum standards for refugee protection in a future agreement with the EU. Perhaps the report received this afternoon addresses those points.

Since the report was published, there has been activity and some movement in the negotiations on the UK’s future relationship with the EU. However, we are now scarcely more than three months away from the end of the transition period and, to date, no agreement has been reached between the parties on asylum and refugee policy. Of particular concern is the fact that the EU negotiators are reported to have said earlier this month that they do not have a mandate to negotiate the Government’s draft agreement on unaccompanied migrant children.

Next Tuesday, the Home Office Minister from the Commons with responsibility for asylum and immigration will appear before the EU Security and Justice Sub-Committee to answer questions on the state of the negotiations on these issues. I hope the Minister’s answers will provide reassurance and some certainty, not only to members of the EU Committee and, indeed, the House, but also to asylum seekers and migrants and those who help them.

The questions posed by asylum seekers and by refugees will not go away. The countries they come from may change, as may the routes they take. It may take a disastrous fire at the Moria centre on Lesbos to force the issue to the top of our minds or, nearer to home, at the other end of the refugee trail, it may take the death of a young refugee in the channel. We are talking here of fellow human beings, often with appalling stories to tell. I know the Minister recognises this. We all need to. I beg to move.

--- Later in debate ---

[Lord Jay of Ewelme (CB)]

My Lords, I am very grateful to the Minister for taking the points made in the debate so seriously. This debate has shown the need to address the question of asylum seekers and refugees with humanity and understanding, not fear and demonisation, as the noble Baroness, Lady Warsi, said. Of course the Government will have to resolve difficult conflicts. None of this is easy, but the consequences of getting it wrong are troubling. How we address these issues will, as the noble Lord, Lord McConnell, said, help to determine how the United Kingdom is seen around the world as we seek to branch out beyond Brexit. I beg to move.

Motion agreed.

EU Action Plan Against Migrant Smuggling (EUC Report)

Lord Jay of Ewelme Excerpts

Wednesday 15th June 2016 Lords Chamber

[Lord Jay of Ewelme (CB)]

My Lords, I speak as a member of the Home Affairs Committee and as a former member of the External Affairs Committee. Migration is a huge global problem, but it is particularly acute in Europe, whose stability and economic success act as a magnet for people from poorer and less stable parts of the world. It is particularly acute now, with the crisis in Syria creating the worst humanitarian disaster since the end of World War II, compounded by civil war and strife in Iraq, Afghanistan, Eritrea, Sudan and Libya. The EU is right to try to formulate a new, comprehensive and coherent response to this crisis, not least because its existing policies and structures were designed for a different era and are no longer fit for purpose. Hence the descent into national responses that we have seen—noble as far as Angela Merkel’s is concerned and less noble, if understandable, as far as other countries’ were concerned.

The bold and, at least for me, unexpected EU decision to send migrants back from Greece to Turkey in return for settling Syrian refugees in the EU has had a marked effect on the level of migration from Turkey to Greece, but it has not had any effect on migration across the Mediterranean—indeed, there may have been some diversion from the Aegean to the Mediterranean. As the report makes clear, smugglers are ruthless, entrepreneurial and flexible, seeking out the weakest and most profitable routes irrespective of the consequences for the people whom they smuggle.

Against that background, Operation Sophia was never on its own going to deter the smugglers. Indeed, the prospect of rescue may have been an incentive to send people out to sea on fragile boats in the hope that they would be somehow picked up. However, to say that Operation Sophia is only, or even primarily, a humanitarian mission is not in any way to belittle it—that is a crucial task and a task in which the Royal Navy is rightly involved; I speak as the son and grandson of naval officers who used to sing in church every morning “Eternal Father, Strong To Save” with the lines:

“Oh, hear us when we cry to Thee,

For those in peril on the sea!”

It does not matter how people get into peril; what matters is that they are saved.

What for the longer term—for this is a longer-term, perhaps a generational, issue? There are no easy solutions, but it seems to me that the aim should be to work with EU partners and others for stability in the Middle East and north Africa and for economic development in sub-Saharan Africa, difficult though that is, not least for the reasons that have just been explained. A second aim should be to support those countries, notably Lebanon and Jordan, which are bearing the brunt of the refugee crisis, as the noble Baroness, Lady Suttie, said. Thirdly, we should try to establish safe havens or camps for refugees in north Africa, too, ideally under UN auspices, whenever political stability makes that possible. Fourthly, we must try to distinguish—because it is extraordinarily difficult—between economic migrants and those fleeing from war or civil strife, and to work to return economic migrants to their home countries and establish legal routes for genuine refugees, thereby reducing demand for smugglers. Finally, we must ensure that genuine refugees are properly settled within the EU, including within the UK. That is a long-term, imperfect and difficult agenda, but I find it hard to see a better way forward.

Civilian Use of Drones (EUC Report)

Lord Jay of Ewelme Excerpts

Tuesday 8th September 2015 Lords Chamber

[Lord Jay of Ewelme (CB)]

My Lords, I was not part of the sub-committee that drafted this excellent report, but I think the subject is of huge importance and want to intervene briefly in the debate.

The image that many people have of drones today is, I suspect, either of military weapons such as those used recently in Syria, which do indeed raise some very fundamental questions about the rules of conflict and war, or of irresponsibly flown drones getting too close to aircraft, as the noble Earl mentioned a little while ago. The merit of this excellent report is that it focuses on the rather less well-known subject of civilian drones, which, to many of us, may still seem rather alien but will, in about 10 years’ time, seem as familiar and have as important a role in our lives, one way or another, as mobile phones and iPhones do today, as the noble Lord, Lord Giddens, said.

The advantages that drones can bring are huge in all sorts of ways: connecting remote communities and islands, mapping, land surveys, monitoring accidents or fires, looking for missing or injured people, providing medical help, as was mentioned some time ago, and, of course, for the leisure industry. However, there are disadvantages—or potential disadvantages—too: excessive or unauthorised surveillance, intrusion and disturbance. These have led some people even to argue that perhaps drones should be banned or, in some way or another, limited. I think that that is not technologically possible—when a technology such as this exists, it is going to be used and exploited. So the questions become how it should be regulated, by whom it should be regulated and in what way it should be regulated.

Given that drones can, do and will continue to fly across borders, it seems to me that they need to be regulated, at least as far as we are concerned, in the context of the European Union—European-level regulation seems necessary and desirable. It is essential that that regulation focuses on what needs to be done to deal with and discourage the risks and does not discourage the innovation and investment that will be needed as civilian drones—if I may use the expression—really do take off; otherwise, we shall find that it is not Europe or the United Kingdom but the US, China, India or elsewhere that becomes the market leader in drones. That is not something that we should in any way accept.

I have tried to avoid acronyms when speaking today, but one acronym, JARUS, seems to me and to the committee to be the body that is a suitable vehicle for developing the necessary regulations. However, that will work only if JARUS has the full participation of industry, including British industry and small and medium enterprises, because SMEs are clearly going to be crucial in the development of drone technology. Does the Minister agree that JARUS is the right forum for developing regulations for drones? If so, will the Government do all they can to ensure that it is appropriately structured and governed and has the support and participation of industry, including SMEs? Will he give an assurance that he will work with the CAA, or with the companies themselves or their representatives, such as the ADS, to make sure that they have the necessary resources to participate in and influence the development of JARUS, and that JARUS itself—this is hugely important—will act quickly enough to reflect the immense speed that we must expect in the development of the drone industry? If we do not do this, and risk the development of a regulatory regime that does not move swiftly enough or have the full support and participation of industry, it could stifle the development of that industry in the EU and the UK. That would be hugely to our disadvantage.

UK Opt-in to the Proposed Council Decision on the Relocation of Migrants within the EU (EUC Report)

Lord Jay of Ewelme Excerpts

Wednesday 22nd July 2015 Lords Chamber

[Lord Jay of Ewelme (CB)]

My Lords, I, too, am grateful to the noble Baroness, Lady Prashar, for having secured this debate and for introducing it. I agree entirely with her speech.

The discussions about opt-ins, opt-outs and Title V of Part 3 of TFEU risk obscuring an extraordinarily serious and difficult issue: the consequences of the situation in Iraq and Syria and, further south, in Sudan and Eritrea. The war in Syria alone has led to the worst humanitarian disaster on the borders of Europe since the end of the Second World War, and that is only part of a huge global problem, as the noble Baroness, Lady Ludford, has said: 60 million refugees worldwide, with more than 20 million displaced people on the borders of Europe.

Not only is this extraordinarily serious, it is also extraordinarily complex. There are people fleeing conflict in Iraq and Syria. There are economic migrants from west Africa who had gone to work in Libya but are now fleeing conflict there—economic migrants have become asylum seekers. The apparent constancies here easily break down. Whatever the causes, though, the consequence of all this is that desperate people are prepared to take desperate remedies to escape a pretty desperate predicament. In some cases, as we know, women and children are encouraged into leaking boats by unscrupulous people smugglers and many of them, alas, have died.

There is an inevitable and understandable tendency to wish for an easy solution to problems as complex as this, but there are, alas, no easy solutions. I have to say that I entirely understand, and in many ways applaud, the European Commission’s attempt to find a solution by proposing a relocation scheme. I think that it was wrong to stick to a mandatory scheme when the European Council clearly did not want that. However, proposing to allocate to other EU member states some of the asylum seekers in Greece and Italy is a perfectly sensible, logical and humanitarian attempt to share the burden among EU states.

Of course, that can be only part of the solution. For the longer term, we need to work collectively with countries in the region to remove the causes of migration—not easy at the moment in Iraq, impossible in Syria and virtually impossible in Libya. But we need to work with Jordan and Lebanon and, where we can, with those in north Africa to encourage co-operation and promote development. I think that there is a big role here for DfID, and I would be grateful if the Minister could confirm that it will indeed be working hard to co-operate with the states from which the migrants are coming.

We also need to work to try to neutralise people smugglers and drug traffickers. This will inevitably be for the medium to long term, and meanwhile we need to ensure that those who are on the leaky boats are rescued, not left to drown. I was encouraged that HMS “Bulwark” was sent to help to achieve that, and I would be grateful for an assurance from the Minister that HMS “Enterprise” will be equally assiduous in trying to save people on leaky boats trying to get from the north African coast to Malta or the European continent.

I am glad that at the Council meeting this week the UK agreed to take 2,000 people from east Africa. However, if we believe that the United Kingdom has an international role, or indeed an international responsibility, surely we must take part fully in the search for a solution to an immensely difficult problem, and that means taking part fully also in the European Union’s proposals for relocation. The response is evolving day by day, and we must be part of that. Opting out of a key part of the European Union’s attempt to find solutions to a problem as serious as this is, frankly, as the noble Lord, Lord Tugendhat, has said so eloquently, not worthy of our history or our traditions, nor indeed of our interests as a nation that still has global influence around the world. I therefore hope very much that the Government will consider these broader humanitarian issues as well as the narrower question of how many people to take in under these different schemes.

Terrorist Attack in Paris

Lord Jay of Ewelme Excerpts

Wednesday 14th January 2015 Lords Chamber

[Lord Jay of Ewelme (CB)]

My Lords, I thank the Minister for repeating the Statement. Does he agree that since the attacks the solidarity shown by the French people of all faiths in defence of the values that we all share is the surest way to show the world that the terrorists will not prevail? Does he further agree that the sharing of information about potential terrorist attacks among EU countries, the United States, Turkey and other countries is an essential way to prevent future terrorist attacks from taking place in our country and in other countries?

[Lord Bates]

Taking the last point first, I certainly agree that information sharing needs to improve. That is why we signed up for the ECRIS security system data checks and the Schengen information sharing system and why dialogues are happening at this very time in the US—the Prime Minister departs soon for Washington to engage in conversations with our partners there—and elsewhere in Europe.

On the noble Lord’s first point about image, when people resort to violence and intimidation the result, as is so often the case, is exactly the opposite of what they try to do. They tried to divide and spread terror but instead they brought confidence onto the streets of Paris which was shared across Europe. That was a welcome sight and a very bold message to send to those who would challenge our liberties.

Education: Overseas Students

Lord Jay of Ewelme Excerpts

Wednesday 13th October 2010 Lords Chamber

[Baroness Neville-Jones]

My Lords, I think that this Question is about English language qualifications for students arriving in this country. I found it difficult to follow the noble Lord’s logic. Many of the institutions that were operating without either the necessary qualifications or a licence were clearly being allowed to do so under the previous Government. I have said that we have suspended some of the institutions that were accredited, and I shall look at whether others have fallen out of the system. However, we are certainly applying extremely rigorous standards to the 2,000 or so institutions that are accredited as things stand at the moment.

[Lord Jay of Ewelme]

Does the Minister, who is herself fluent in French and German, agree that it is equally important that English students learn foreign languages?

[Baroness Neville-Jones]

Je le veux bien. Yes, of course.