Investigatory Powers Bill

Lord Keen of Elie Excerpts

Monday 11th July 2016 Lords Chamber

Moved by

[Lord Keen of Elie]

4: Clause 1, page 2, line 11, leave out “misfeasance” and insert “misconduct”

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I shall speak first to the government amendment. Clause 1 refers to those offences found elsewhere in the law that provide protections for privacy or safeguards against the misuse of these powers. This amendment simply corrects a minor error in the drafting; the Bill currently refers to the,

“common law offence of misfeasance in public office”.

That offence is more correctly referred to as misconduct in public office. This amendment simply reflects the usual name for the offence in common law, and will prevent confusion with the distinct civil cause of action, which is usually referred to as misfeasance in public office.

[Lord Janvrin]

I rise to speak to Amendment 15 in this group, again on behalf of the Intelligence and Security Committee. It is crucial when this House is being asked to approve intrusive powers for the state that we all have a clear understanding as to how any misuse of those powers will be dealt with. These are exceptional powers, capable of revealing the most sensitive and detailed information about private lives. The Bill already includes offences related to the unauthorised interception and misuse of communications data, and there are other relevant offences mentioned in other legislation relating to data protection or computer misuse, for example. However, the Intelligence and Security Committee has concluded that these offences, scattered across numerous Acts of Parliament as they are, are insufficient and lack clarity. There would, therefore, be considerable benefit in setting out a single offence in one single place in this Bill alongside the intrusive powers we wish to regulate.

Your Lordships will note that we have sought to include wording in this amendment relating to wilful and reckless misuse of intrusive powers. We are not seeking to make minor, accidental mistakes criminal offences; we are focusing on the most egregious abuses of investigatory powers. There have been arguments that the creation of a new overarching offence for misuse of powers would add confusion in the law, duplicate existing offences and create a “chilling effect” for those using these powers in the agencies. Neither of these arguments is particularly compelling.

First, far from adding to confusion in legislation, it is self-evident that putting a single offence for misuse in one place should simplify legislation in this area, as it avoids the need to look for offences scattered throughout the legislative corpus and the common law. Potential duplicate offences can be dealt with easily, as has already been done in Clause 231, which amends the Wireless Telegraphy Act. The clause effectively says that an offence under the Wireless Telegraphy Act which is also an offence under the Investigatory Powers Bill should be dealt with preferentially under the Investigatory Powers Bill.

Secondly, the argument that an overarching offence would have a “chilling effect” on agency staff seems exaggerated. If a certain action constitutes a criminal offence anyway, it seems highly unlikely that an agency staff member would act differently depending on where and when the legislation appeared. If agency staff are engaging in activities that are on the edge of lawfulness, it is quite right that they should be given grounds to pause for thought, at least to the extent that they take internal legal advice if they wish to continue their work. The amendment would therefore be a simplification of the law and provide suitable penalties for serious transgressions.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I begin with Amendment 15, which raises the issue of creating a new criminal offence. This was initially discussed in the other place at earlier stages of the Bill’s passage.

In the other place the Government made it clear that each of the powers in the Bill is already subject to one or more civil penalties or criminal offences for misuse. Part 1 has always contained a number of privacy protections that are central to the Bill, and it now makes clear the existing offences and sanctions that apply in respect of the different powers, such as the offences that relate to the unlawful interception or unlawful obtaining of communications data. In addition to the strict safeguards that are explicit in Part 1 of the Bill, there are a number of other additional offences that exist elsewhere in statute but apply equally to any misuse of the powers.

In response to the concerns raised in the other place and with sympathy for the Intelligence and Security Committee’s desire for clarity, the Government listened carefully and tabled amendments that now more explicitly refer to the relevant offences set out in other statutes, such as the Computer Misuse Act 1990, which applies to equipment interference, and the Data Protection Act 1998. These put beyond doubt the penalties that would apply in the event of deliberate wrongdoing by a member of a public authority.

On the basis that there are existing offences that apply to every power in the Bill, the Government are reluctant to introduce a new criminal offence that would lead to confusion, as it would overlap or duplicate those set out elsewhere. Perhaps more simply, it would be unnecessary. The powers in the Bill are varied, each with their own distinct regimes. If we sought, as was suggested by the noble Lord, Lord Janvrin, to create one offence to fit them all, it would either be too broad and catch too much, or by being too narrow actually miss something and result in a less effective sanction. It could also lead to a lack of legal clarity and potentially hamper the effective enforcement of existing offences. The point is that one size does not always fit all.

There is a further concern. The heads of the three intelligence agencies have written to the Home Secretary and to the ISC outlining their very real concerns about the inadvertent operational impact this proposal may have. The officers working within our intelligence agencies are entirely committed to the mission of keeping the country safe. They are professional and ethical in the way in which they conduct their work. We recognise the concerns raised about potential misuse of investigatory powers, but the creation of a new offence may unnecessarily inhibit agency staff and limit their ability to operate with confidence and at pace against the numerous threats we face.

We do not disagree that intelligence officers who are exercising these most sensitive and intrusive powers should consider their actions carefully before using them, but I have seen no evidence that the dedicated men and women of our security and intelligence agencies give such matters anything less than the most careful consideration. I can quite easily see that Parliament’s creating a new offence that appears to be targeted solely and squarely at our intelligence agencies could have a detrimental impact on the confidence, morale and willingness of those persons to carry out the often dangerous yet vital work we ask them to do on our behalf. Moreover, the Government are clear that if anyone in a public authority were to act contrary to their obligations under the Bill, the matter would be taken extremely seriously. The current commissioners already ensure that they investigate and report publicly on the very infrequent cases of errors which involve serious misuse. In appropriate cases disciplinary action may be taken, up to and including dismissal, or civil or criminal liability incurred.

When these points are considered collectively, I hope noble Lords will agree that this puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a member of a public authority. A new criminal offence is therefore wholly unnecessary and potentially confusing, and would adversely affect the operation of the agencies.

Amendment 16 seeks to extend the criminal offence of unlawful interception to “private” postal services. This is aimed at capturing those services which cater to more specialist clients; for example, companies that provide services to banks or lawyers. The noble Lord, Lord Paddick, referred to DX as an example of such a company. I understand the reason for the amendment and support the principle that the offence should apply to this type of company. However, these companies are already caught by the existing provision. The Bill describes a “public postal service” as one that,

“is offered or provided to the public, or a substantial section of the public”.

This includes companies that specialise in providing services to bespoke sectors, such as the legal profession or banks.

Moving on to Amendment 17, in the name of the noble Lord, Lord Strasburger, Clause 3 sets out the offence of unlawful interception. This is a vital safeguard that relates to one of the most sensitive powers provided for in the Bill. It underpins the protections for privacy that are fundamental to the Bill. I am afraid I cannot accept an amendment which would limit or even undermine that safeguard. The amendment would limit the offence by setting out circumstances in which it would not apply; for example, it provides a public interest defence to the offence. It would not be appropriate to allow someone to intercept the communications of another—without lawful authority—because that person takes the subjective view that it would be in the public interest. I note and agree with the observations of the noble Lord, Lord Grabiner, and the noble Baroness, Lady Hayter, in this regard. It would not be right to reduce this strong safeguard, which exists to protect individuals.

[Baroness Hayter of Kentish Town]

I should have come in on Amendment 16, but before the Minister moves on, the issue of the private postal service was raised by the Minister’s Scottish legal colleagues, who wrote to us. They felt that the definition of “public postal service” did not include DX. I wonder if he will agree to write to me so that the legal position is clarified, since it was good Scottish lawyers who raised the issue.

[Lord Keen of Elie]

I am obliged to the noble Baroness. It was raised by Scottish colleagues—Scottish colleagues with whom I do not agree—but I am quite happy to undertake to write to her. I should say it was raised by the Scottish Law Society, not the Scottish Bar.

Amendments 18 and 246 were spoken to very clearly by the noble Baronesses, Lady Hollins and Lady O’Neill, and the noble Lords, Lord Lipsey and Lord Oates. While I am quite happy to write on the matter of press regulation and the commencement of Section 40, press regulation is not the purpose of the Bill. I have to make that clear in this context because while I understand the points that are being made, they do not arise directly in the context of these amendments.

Moreover, the relevant amendments are not considered necessary. There is already a criminal offence where unlawful interception takes place on a public or private telecommunications system or a public postal service. There is also a cause of action which applies in a limited set of circumstances, where the criminal offence does not apply. Where there is an allegation that unlawful interception has taken place on behalf of a public authority, a person may seek recourse through the Investigatory Powers Tribunal, which has the power to provide redress, including awarding damages.

Where the conduct relates to an individual who does not belong to a public authority, there are other causes of action which may be applicable. I may have misunderstood the noble Baroness that the tort which currently exists in the Regulation of Investigatory Powers Act 2000—allowing an individual to take action against a person who has the right to control the use or operation of a private telecommunications system and who intercepts a communication on that system—has been added to the Bill by way of Clause 8, and that happened after the debate on the Bill in the other place. In these circumstances, we are not prepared to accept the amendments.

Turning to Amendments 20 and 21, Clauses 6(2) and 6(3) are important because they provide that where a public authority, or a telecommunications operator, is acting in accordance with a warrant properly obtained under the Bill, or the provisions of Clauses 42 to 50, they can be sure that they are not breaking any other law or required to obtain additional authorisations. This legal certainty is vital for those engaged in the essential work of keeping us safe.

The first amendment seeks to provide that future legislation could make that conduct unlawful for certain purposes. I understand the principle the noble Lords seek to achieve but I do not believe it is necessary. Nothing in the Bill prevents Parliament amending the legislation at a future date to make any of the activity unlawful or provide that some additional authorisation is required.

The second amendment seeks to amend subsection (3). The purpose of this subsection is to make clear that conduct undertaken in accordance with a warrant or which is authorised by any of Clauses 42 to 50 is to be treated as lawful. This is vital in providing companies with reassurance that by complying with a warrant they will not be acting unlawfully in relation to their regulatory obligations or other legislation. The effect of this amendment would be to provide that the conduct is lawful only for the purposes of the Bill. My concern, were we to accept this amendment, would be that we would remove the legal certainty that the companies and agencies rely on to do their job and to keep us safe. We therefore do not accept the amendment.

Amendment 84 relates to exceptions from the duty not to make unauthorised disclosures about warrants. It is absolutely right that the Secretary of State should be accountable to Parliament, even for the most sensitive decisions concerning the most sensitive powers. But when it comes to such matters, which necessarily must remain secret, it is absolutely right that Parliament provides a mechanism for the Secretary of State to be held to account, while at the same time doing nothing to jeopardise national security. That is the very reason for the existence of the Intelligence and Security Committee of Parliament.

To put beyond doubt that the Secretary of State is, and will continue to be, accountable to Parliament through the ISC for decisions relating to warrants, the Government amended Clause 54 and Clause 123 to make clear that the Secretary of State may disclose matters relating to warrants to the ISC. This will allow the ISC to carry out its statutory functions in holding the Government to account, while maintaining our security. It is right for the ISC to carry out this function and it would not be appropriate for disclosure to be made to Parliament as a whole. To do so would breach the long-standing principle of successive Governments to neither confirm nor deny matters relating to intelligence and security and could risk jeopardising our national security. Accordingly, I invite the noble Lords not to press their amendments.

[Lord Paddick]

Can the Minister clarify whether it is not then an offence for the Secretary of State to disclose the existence or content of a warrant to the ISC? That is not our understanding of the Bill.

[Lord Keen of Elie]

It may be then that we have to agree to disagree. It is my understanding of the Bill and it is our position that the Secretary of State is entitled to make disclosure to the ISC for the purposes of answering to the ISC in this context.

Amendment 4 agreed.

Modern Slavery (Transparency in Supply Chains) Bill [HL]

Lord Keen of Elie Excerpts

Friday 8th July 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Young, for introducing this Bill and this debate. This Government are determined to tackle modern slavery and ensure that UK supply chains are not driving demand for slavery around the world. That is why we included a world-leading transparency in supply chains provision in the Modern Slavery Act, and why we welcome suggestions for strengthening our approach.

The provision in the Act requires all commercial organisations carrying on business in the UK which supply goods or services and have a turnover of £36 million or more to set out the steps that they have taken to prevent modern slavery in their business and supply chains. This transparency will allow consumers, investors and civil society, and indeed commercial organisations, to hold businesses to account and drive a race to the top.

The first proposal in the Bill is to extend the transparency provision to include public sector organisations as defined by Regulation 2 of the Public Contracts Regulations 2015. The Government fully agree that the public sector must play a full part in increasing the transparency of supply chains. Work to achieve this is under way. Several major public sector procurers have already introduced anti-slavery measures in their standard procurement procedures. For example, the NHS standard terms and conditions for goods and services suppliers include conditions on labour standards, and the Department for Health and NHS Supply Chain have also developed a labour standards assurance system that encompasses issues of forced labour for auditing suppliers in high-risk categories.

We agree that such good practice should be used more widely. That is why we are taking action to ensure that information on slavery and trafficking statements informs future procurement decisions by the public sector. We are amending the cross-government procurement selection questionnaire so that large commercial organisations wanting to do business with government will be asked whether they are compliant with Section 54 of the Modern Slavery Act. This will enable contracting authorities in the public sector to decide whether to exclude the organisation from the procurement process. The new questionnaire will be in place later this year.

We are not, however, convinced of the merits of the proposal in the Bill which involves applying to the public sector a provision that was specifically designed with private sector organisations in mind. The public sector already has different kinds of transparency requirements and accountability to Parliament, which means that it is held to account in a different way from the private sector. Public authorities are also already legally required by Section 6 of the Human Rights Act to act compatibly with the European Convention on Human Rights, which incorporates Article 4 prohibiting slavery, servitude and compulsory labour. Public authorities can therefore be challenged under the 1998 Act for acting incompatibly with convention rights, which private sector organisations cannot, and there are other ways to make progress that do not require primary legislation.

The Bill would also require all organisations to include their statements in their annual report and accounts. This would be a departure from the current provision, under which the Government have made clear that businesses can include their transparency statement in another publication or report, as long as it is clearly marked as their slavery and human trafficking statement and there is a link directly to the statement in a prominent place on the organisation’s website. The existing approach was very much based on a consultation with businesses and NGOs and reflected their desire to avoid a one-size-fits-all rule that could be restrictive. We remain open to feedback about this, but we would prefer to assess the impact of the provision in its existing form before considering any changes to the guidance.

This Bill would also require the Secretary of State to publish a list of all applicable organisations covered by this legislation. This is an interesting proposition. The Government are committed to doing everything we can to amplify the value of information in the slavery and trafficking statements. We want consumers, businesses and civil society to make informed choices that reward companies that take action to eradicate slavery. In theory, publishing a list of the commercial organisations which are captured by the duty by dint of their operation in the UK and their annual turnover could help with this. In practice, producing such a list is likely to be difficult and resource-intensive and may, in any event, not require primary legislation. We are prepared to look at this, but at this time we believe that no legislative change is needed.

The Bill would make it mandatory for contracting authorities in the public sector to exclude an economic operator from a procurement process, if it was established that it should have complied with Section 54 but had not. It would also require the Secretary of State to publish guidance for those public contracting authorities on how to comply with this requirement and with Section 54. We agree with the objective of this provision but do not think that legislating for more guidance is necessary. First, contracting authorities can already exclude an economic operator which has failed to comply with Section 54 of the Act. This is provided for under Regulation 57(8)(a) of the Public Contracts Regulations 2015, which was referred to by the noble Baroness, Lady Hamwee. The regulation is not absolute, as she observed. Secondly, the Cabinet Office will later this month publish cross-government guidance on social, labour law and environmental aspects of the public procurement regulations. This will help public sector authorities decide when and how to exclude economic operators. This guidance will be issued via a Crown Commercial Service procurement policy note which is binding on central departments, their agencies and non-departmental public bodies and which is recommended for the wider public sector. Thirdly, as I mentioned earlier, we are already taking steps to encourage compliance with Section 54 by amending the cross-government procurement selection process. We are confident that these steps will achieve the desired outcome.

I shall now consider one or two particular questions raised by noble Lords. The noble Lord, Lord Whitty, acknowledged that the United Kingdom is at the forefront of this form of legislation. He suggested that it may not be enough for us to rely on consumers and consumer organisations. Over and above that, we rely more particularly on peer pressure. That was underlined in the consultation process that preceded the original Act. There is a desire, particularly on the part of larger businesses, to ensure that at an economic level they are not unfairly prejudiced by the unlawful and disgraceful conduct of potential competitors. Therefore peer pressure plays a part in this process.

The noble Lord referred to the strange omission of public authorities but, with respect, the legislation was designed to apply to the private sector. I pointed out the distinction that arises under the Human Rights Act. Under Section 6, all public authorities are bound by the terms of the convention. He also asked questions with regard to gangmasters and the Gangmasters Licensing Authority. As the noble Lord may recollect, the Government used the Immigration Act 2016 to extend the remit and powers of the GLA. It will be renamed the Gangmasters and Labour Abuse Authority, and its new mission will be to prevent, detect and investigate worker exploitation across the entire economy, which will result in more scrutiny of companies from a law enforcement agency which can examine their supply chains. I hope that meets his concerns about the position of the GLA in that context.

[Lord Whitty]

I recognised the extent of its remit and asked what resources were given to it and to the other bodies involved in that area. Will the Minister reply to me in writing if necessary?

--- Later in debate ---

[Lord Keen of Elie]

I will reply in writing as I do not have the figures available to me this morning. I am obliged to the noble Lord.

The noble Lord, Lord Cormack made a number of observations about the Bill and the future of this country. What I would concur in, at the very least, is that we should work to ensure the circle is completed as far as this legislation is concerned.

The noble and learned Baroness, Lady Butler-Sloss, referred to the Bill as timely and necessary. I concur that, in a sense, it is timely because we should review such important legislation, but for the reasons I have given, I would not go so far as to say it is necessary at present.

[Lord Cormack]

I am sure we would all rather be defended by the Minister than prosecuted by him, but he gave us a glimmer of hope when he talked about the need to complete the circle. Will the Minister be kind enough to agree on the Floor of the House to meet the noble Baroness and all her supporters, those of us who have spoken and others, together with the Independent Anti-Slavery Commissioner to see whether something could be produced that would complete the circle?

[Lord Keen of Elie]

I am obliged to my noble friend. I have already met the noble Baroness, and I am obliged to her for making time for that meeting. I am perfectly prepared to meet again to discuss how we can address some of the issues raised by the Bill because the Government’s position is that, while we welcome some of the proposals, we do not consider that primary legislation is required to achieve these ends. I would welcome an opportunity to discuss those points further in due course.

I turn to the observations by the noble and learned Baroness, Lady Butler-Sloss. She asked a number of questions about the burden of regulation and whether it was any longer an issue because, as she put it, in the consultation process the biggest companies said it was not a problem. We are not concerned with just the biggest companies, though; we acknowledge their role in this and the peer pressure that they can bring to bear, but this concerns every company with a turnover of £36 million or more and we have to take account of the burden upon all those companies, not just the biggest of them.

On the point about government procurement, I hope I have addressed that by pointing out that in a sense a parallel scheme is in place regarding procurement. I acknowledge the point made by the noble Baroness, Lady Hamwee, that the regulations do not carry an absolute. There are reasons for that. The code of practice will complement how and why those regulations should be taken into account.

[Baroness Hamwee]

Is the Minister aware, and he may not be, whether the Government have any plans to report publicly on the compliance with—“compliance” may be the wrong term for something that is discretionary, so perhaps I should say “observance” of—those regulations? In other words, will they report on how successful those regulations are? That is a matter of public concern, obviously.

[Lord Keen of Elie]

I can understand the observation but, as the regulations are to be complemented by a code of practice that I believe is going to be brought into force in October this year, I do not think I am able to anticipate how compliance may occur. I will address in writing to the noble Baroness the question of whether there will be some form of requirement for compliance auditing in respect of that matter.

The right reverend Prelate the Bishop of Derby raised the question of central repositories, and mentioned an instance of an organisation in Bristol. I am not in a position to go into individual cases at this time. As noble Lords are well aware, the Government have not launched an online repository, although we are aware of a number of proposals from third parties who suggest that they could develop a website to host these statements and to help people to search for them. I would like to complete a quotation that the noble Lord, Lord Alton, made regarding an answer I gave in April this year when I said:

“There never was an intention to establish any central monitoring system with respect to these provisions”.

That was in the context that there was never any government intention, which was perfectly clear. I went on to say:

“The Government have always been clear that it is for others to establish such a mechanism. We are aware of a number of organisations that propose to set up a central repository”.—[Official Report, 13/4/16; cols. 256-58.]

The right reverend Prelate went into some detail regarding a particular development in this regard, and I undertake to write to him on that matter because he raised a point that I am not in a position to address this stage.

The noble Baroness made the point, which was also made by other noble Lords, that these are early days. I remind your Lordships that this legislation came into force in October 2015, requiring companies to respond and to obtemper their Section 54 statement in their financial year from March 2016 onwards. We are at the very beginnings of this process.

That brings me on to a point made by my noble friend Lord Smith, who asked me a number of questions about the number of companies that have complied and the number that have relied upon Section 54(4)(b) of the Act and said they could not make a statement. It is simply too early to say what the position is regarding those matters. Those figures have not been collated and cannot be, because it is only from March this year that companies have had to address the question of compliance. I regret that I cannot provide figures at this stage.

The noble Baroness, Lady Goudie, raised the issue of local authorities and government departments. I hope that to some extent I have addressed the point that she was making by seeking to explain that the original legislation was designed particularly for the private sector, and that there are parallel provisions. They may not be regarded as quite as absolute as those that apply to the private sector, but there are parallel provisions that we have under the procurement regulations and which are being developed by reference to the code of practice.

I turn to the observations from the noble Lord, Lord Alton. Again, he referred to early indications of how the Act is being complied with. I underline that point: these are only early indications. We have to look further and consider how the Act is going to bed in. In my submission, it is too early to suggest that we should be tinkering with the legislation before we know how it is actually going to work in practice. He also alluded to the alleged lack of any monetary penalty for those who simply ignore the provisions of the Act. I remind noble Lords that the provisions are civil. The Secretary of State has the right to bring injunctive proceedings against a company that persistently fails to obtemper its Section 54 obligations, and if it still fails thereafter to obtemper those obligations it will be in contempt of court and liable to an unlimited fine.

[Lord Alton of Liverpool]

Before the Minister leaves that point, he will recall that in fact the quotation was not mine; it was from the US State Department’s observation about the working of our Act. I believe it is important to get the question of penalties on the record so I am grateful to him for doing that, but will he return to the question of post-legislative scrutiny? He will recall that, when I moved amendments in 2015 on that subject, the Government opposed them. Is there not a strong case for at least saying that there will come a point where, just as there was pre-legislative scrutiny of this legislation, which was incredibly effective, there will be post-legislative scrutiny so that we can decide what is working and what is not? Then it will not be a question of “tinkering”, as he put it.

[Lord Keen of Elie]

I am grateful to the noble Lord. I understood that he had quoted the US source because he agreed with it, not because he simply wanted to put it into play. Be that as it may, I also observe that there is provision for review under the terms of the Act, albeit a five-year period. I am not suggesting that we wait that long because, as I indicated, I am perfectly content to sit down with the noble Baroness, Lady Young, and discuss these proposals further. We are sympathetic to some of the suggestions, or at least to the aims, but we do not believe they require primary legislation. I am quite happy to discuss some of these aspects with her.

The noble Lord, Lord Boateng, referred to the fact that we must not forget the past or past wrongs. I entirely concur with that, but perhaps he can appreciate that I can give no commitment with regard to Memorial 2007. He asked a number of questions about the tasking of high commissioners and ambassadors with regard to these matters. If I ventured into the realms of the Foreign and Commonwealth Office, I would fear for my future. I might fear for it anyway, but I hope the noble Lord will appreciate that I am not in a position to address questions that fall within the ambit of that particular department.

However, I have just been given this information: “18 minutes”.

[Lord Boateng]

I am grateful to the Minister but, having consulted his ministerial colleagues, will he undertake to write to me?

[Lord Keen of Elie]

I will request that appropriate provision is made in order that the noble Lord can be written to.

[Lord Boateng]

I could not ask for more from a lawyer.

[Lord Keen of Elie]

I am obliged to the noble Lord.

The noble Baroness, Lady Hamwee, raised a number of issues. One of them was how we identify those corporate entities or partnerships that have an obligation under Section 54. The obligation was designed to coincide with the definition of large companies under the Companies Act in the context of registration. I am not saying that that takes us very much further forward, but there is at least a litmus test that one can have regard to in that context. I do not seek to ignore the other points that she raised, but I hope I have covered them in the course of this reply.

The noble Lord, Lord Kennedy, asked about public bodies. Again, if I may, I repeat that they are subject to a parallel provision—albeit not identical, for obvious reasons—and that is being developed under reference to the code that I mentioned before.

In conclusion, I thank the noble Baroness, Lady Young, for raising this important topic. The Government have listened and reflected carefully on the topics raised by her Bill. We are determined to lead by example on this issue and do everything that we can to prevent modern slavery in both the public and private sector supply chains in this country, and indeed overseas. While the Government are not persuaded that further legislation is the right approach at this stage, we welcome the ideas in the Bill. We will want to examine some of them in more detail and, as I have said before, I will be happy to meet with the noble Baroness again to do so.

[Baroness Butler-Sloss]

Before the Minister sits down, may I ask two questions? First, as I understand it, it is being suggested that in the public sector the human rights requirement meets what is needed for modern slavery. If that is correct, why on earth was it necessary to have a modern slavery requirement for the private sector? Secondly, it is all very well for the Secretary of State to have the power to go to the County Court, but what he needs to know is, first, who the companies are and, secondly, whether they have in fact not complied. From what the Minister has said, I do not understand at the moment how the Government are going to find either of those points.

[Lord Keen of Elie]

On the first point, the private sector is not subject to Section 6 of the Human Rights Act 1998, which is what I sought to explain earlier. On the second point—

[Baroness Butler-Sloss]

The independent private companies are also caught by the Human Rights Act under the current legislation because they have to do a human rights report every year. I do not quite understand why the Government think that that is good enough for the Government but not for private companies.

[Lord Keen of Elie]

As I say, the public sector is subject to Section 6 of the Human Rights Act; that was merely one aspect of my explanation as to why it was not considered appropriate to extend this legislation to the public sector. The other issues concern the Public Contracts Regulations 2015 and the codes and guidance that apply in that context.

As regards the Secretary of State having resort to the courts to bring a penalty, we will see consumers, NGOs and peer pressure bringing out the question of who is complying and who is not. I will give one simple example. If a retailer on the high street discovers that their competitor is retailing T-shirts at 50p each when they know perfectly well that they cannot be produced for anything like that sum, and they persist in doing so, they will detect that something is amiss. As the large corporate retailers observed in the consultation period, they want a level playing field and their one way of doing that is to ensure that their competitors comply with Section 54 and, if they do not, to bring that to the attention of the Secretary of State.

[Lord Alton of Liverpool]

Before the noble and learned Lord sits down, I raised with him the position of minors and those who have been referred through the national referral mechanism when it has not led to any kind of criminal action being taken on their behalf. Will he agree to write to me on that subject?

[Lord Keen of Elie]

The noble Lord also reminds me that he raised the question of children coming from Europe under the immigration scheme. He may appreciate that I do not have figures on these matters for the purposes of this debate, but I will be content to write to him on the point he has just raised.

Hate Crime

Lord Keen of Elie Excerpts

Tuesday 5th July 2016 Lords Chamber

[Lord Rana]

To ask Her Majesty’s Government, in the light of the reported increase in the incidence of hate speech against immigrants following the referendum on the United Kingdom’s membership of the European Union, what steps they are taking to tackle xenophobia and racist extremism.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Government are committed to tackling hate crime. The United Kingdom has one of the strongest legislative frameworks in the world to tackle it. In terms of recent events, we are working across government, the police, including national community tensions teams, the Crown Prosecution Service and community partners to send out a clear message. Hate crime will not be tolerated and those who commit these reprehensible acts will face the full force of the law.

[Lord Rana (CB)]

My Lords, I fear that many hate crimes have occurred against the backdrop of a campaign to which certain elements gave the stamp of racism. Did the Government make any preparations before the referendum for the rise in hate crime? Will the Minister agree that the status of EU citizens and other immigrants in this country must be assured?

[Lord Keen of Elie]

My Lords, the Government have implemented a series of educational programmes, including by the Anne Frank Trust and the Crown Prosecution Service, which have received the support of the National Union of Teachers. It is close by this afternoon, I believe. In the circumstances, we have taken steps to address this issue. In addition, a cross-government hate crime action plan is to be published imminently. This will drive forward our proposals to deal with all forms of hate crime.

[Lord Bilimoria (CB)]

My Lords, I came to this country from India as a 19 year-old in the 1980s. At the time of the referendum, I received this tweet: “You are not British-born, so your input into the vote of the true Brits is not required and of no interest to true workers”. Last weekend, a member of our team for 16 years who is from abroad, with an English husband, went to hospital with a broken, bloodied finger and was told by somebody waiting next to her, “You are a burden on this country”. What is going on? Will the Minister and the Government acknowledge that this wretched referendum has caused this? Are the Government really doing enough to address something which I have not witnessed in any way for 30 years, but am now witnessing?

[Lord Keen of Elie]

No matter what may divide us, we are united in this country by shared values of democracy, free speech, mutual respect and opportunity. If we maintain these standards, we can drive out the criminals who would perpetrate the sort of crimes that the noble Lord has referred to.

[Lord Rosser (Lab)]

My Lords, if there had been no split on Europe within the Conservative Party, there would have been no Conservative Party referendum. If there had been no Conservative Party referendum, there would have been no significant rise in hate crime. Will the Government now at least do the decent thing and accept that what is happening today is because party interest was put in front of national interest? Can the Minister tell us what specific new initiatives or decisions—as opposed to discussions, messages and plans—the Government have taken since the referendum campaign to address the serious and damaging situation they have helped to create?

[Lord Keen of Elie]

With respect to the noble Lord, it is not appropriate to seek to draw a line between the referendum result and those who have taken it as an opportunity to express xenophobia and racist positions. I think it is obvious to all that the vote in the referendum can be attributed to a split in the Labour Party and not to a split in the Conservative Party.

[Baroness Hussein-Ece (LD)]

My Lords, there has been a fivefold increase—500%—in reported hate crime. As we know, the majority of these incidents are not reported. I have been abused online. In the last fortnight, since Brexit, members of my family and people I know, of all colours, races and religions—and of no religion or faith—have been subjected to this. Will the Minister support the initiative by a national coalition of race equality groups, including the Runnymede Trust? These groups have come together to ask for leadership and solidarity from all politicians around this House and in the other place and from the media to reject racism and hate crime and to stop pandering to intolerance. We should have zero tolerance of this kind of behaviour in this country.

[Lord Keen of Elie]

I agree with the noble Baroness that we, on all sides of this House, are ready to condemn racism and xenophobia. We have a common interest and a common outlook in so far as this is concerned. With regard to the increase in reported race hate crime, there have been significant increases in the period 2010 to 2016, but one must be careful of these statistics because much of the increase is attributed to the fact that we have introduced a better reporting system, including the reporting portal, True Vision.

[Lord Tebbit (Con)]

My Lords, would it not be a good idea if we all took Her Majesty the Queen’s advice and just calmed down a little?

[Lord Keen of Elie]

Yes.

[Lord Harris of Haringey (Lab)]

My Lords, it is not simply a question of the referendum campaign making xenophobia and racism respectable again; this is also the responsibility of the Minister’s right honourable friends in the other place who have consistently pandered to this in exactly the same way—for example, the right honourable Theresa May and the campaigns run by the Home Office against illegal immigrants. The Prime Minister’s intervention in the mayoral election in London, talking about extremists, was all part of the same picture. Is there not a pattern which has led to this increase in xenophobic incidents in the last few weeks?

[Lord Keen of Elie]

With respect to the noble Lord, nothing makes xenophobia and racism respectable, least of all the referendum.

National Identity Cards

Lord Keen of Elie Excerpts

Tuesday 5th July 2016 Lords Chamber

[Lord Campbell-Savours]

To ask Her Majesty’s Government what consideration is being given to the benefits of introducing national identity cards in the United Kingdom.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Government have no plans to introduce identity cards for British citizens.

[Lord Campbell-Savours (Lab)]

My Lords, with Brexit, increasing levels of immigration, concerns over international terrorism, personal security, fraud, voter registration and access to public services, do not advances in biometric detail data collection now give us a new opportunity to consider introducing identity cards? We need them now. We need them urgently. I believe that the majority of the British people want them. The Liberal Democrats can no longer block them. So why not have a rethink?

[Lord Keen of Elie]

My Lords, the Government’s focus is on enhancing the security of existing documents while at the same time recognising the direction of travel towards digital identities that may reduce the reliance on physical documents. Some 84% of UK citizens in this country hold a UK passport, the vast majority of which are biometric. Those who have immigration status in this country hold a biometric resident’s permit. It is not appropriate to sweep this away in favour of identity cards.

[Lord Marlesford (Con)]

My Lords, does my noble friend, given what he has just said about passports, recognise that in order to defend our borders it is essential that immigration officers are fully aware of who people are, and that other nationality passports held by a British passport holder should be revealed when the British passport is scanned? At the moment that is not the case. The Home Office has constantly resisted my attempts to get this introduced, largely because it does not like other people’s ideas. Will he kindly see that something is done? Otherwise the Government will be failing in a big way in their responsibility to defend our sovereignty and borders.

[Lord Keen of Elie]

The Home Office is always open to new ideas.

[Noble Lords]

Oh!

[Lord Keen of Elie]

Thank you, my Lords. And it remains open. Be that as it may, our borders are open to those who carry a British passport. Since the time of Henry V, those who present a British passport have been entitled to enter this country.

[Lord Paddick (LD)]

Noble Lords will have been appalled by the murder of 32 innocent people in Brussels in March at the hands of terrorists, in a country where the carrying of national identity cards is compulsory. Can the Minister say how identity cards would make us safer in the UK when they appear not to make people in Belgium any safer?

[Lord Keen of Elie]

As may be appreciated, the position of the Government is that they would not contemplate introducing identity cards at present. If they believed that their introduction would bring a material increase in security, their position would of course change.

[Baroness Corston (Lab)]

Will the Minister be surprised to hear that when I was a Member in the other place, I held a consultation and conference on identity cards in my constituency? One of the responses that most surprised people was from married women—most but not all from minority ethnic communities—who said that they had no access to their passports, that they did not have a bank card or a savings account and that they could not prove who they were. Indeed, some of them said that when they had become victims of domestic violence and had gone to Bristol City Council, they were told that they could not be rehoused because they could not prove who they were. They said to me: “If you allow me to have an identity card, I would be someone”. Have the Government thought about those issues?

[Lord Keen of Elie]

It is tragic to hear of victims of such intimidation and control, but I would observe that those who are the subject of such control are not likely to have access to their identity card any more than they do to their passport.

[Baroness Kennedy of The Shaws (Lab)]

We have heard in the course of today’s debate about the rise in attacks against minorities. One thing that concerned minorities was that if you introduced an identity card it would open the door to harassment of people who speak a foreign tongue or with an accent, or you might have victimisation of people with a different colour of skin. There was a sense in which ID cards would create those sorts of problems for people from minorities. Does my noble friend agree that the answer to the issue she raised is to have better facilities for people who experience domestic violence and oppression within their communities and from their partners? That is the answer, not identity cards.

[Lord Keen of Elie]

The Government certainly agree that the answer is not the introduction of identity cards.

[Baroness Sharples (Con)]

What is the estimated cost of identity cards?

[Lord Keen of Elie]

The estimated costs of following through on the original proposals, which began under consultation in 2003, were enacted in 2006 and implemented in 2009, were estimated in 2010 at just over £840 million.

[Lord Rooker (Lab)]

I accept that the plans for ID cards got out of hand from when they started, at the time when I first went to the Home Office. But the Minister, as Home Office Minister, must know that this country is one of the easiest to work in illegally. That is one of the greatest pull factors for the merchants sometimes of death who traffic in people. Couple that with no ID card and it is money in the bank for these people. First we should stop it being made so easy to work illegally. That goes hand in glove with securing people’s identity. The two things should be done together.

[Lord Keen of Elie]

With respect, the introduction of the new Immigration Act stamped down on the scope of illegal working in this country. It is not considered appropriate that that should be combined with any system of identity cards.

[Lord West of Spithead (Lab)]

My Lords, one of the main reasons to have the card is for a person to protect their identity and get access to all the things that can now be done digitally online. When I started the cybersecurity policy and we did all the work with the banks and stock exchanges, we found that it was best to have cards for individuals, with biometrics that can be used with computers—for people’s own security. All this other stuff about checking up on people and everything is a sideline as far as I am concerned. It is actually to save the identity and personal details of the individuals in this country and enable them to get digital access to all the new systems that are coming. The only way of doing that, as we found with the banks and stock exchanges, is to have some sort of card—calling it an identity card gets everyone terribly excited—that has biometrics on to let them do it safely.

[Lord Keen of Elie]

With respect, it would appear that matters have moved on because we are now in the realms of digital identification, where cards are not required. Indeed, the Government’s own site makes provision for digital identification.

Historical Child Sex Abuse

Lord Keen of Elie Excerpts

Thursday 30th June 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I, too, am grateful to the noble Lord, Lord Lexden, for initiating this important debate and to all noble Lords for their contributions. It has been a wide-ranging discussion.

I will start by acknowledging that the issues raised by this debate are both complex and sensitive. In any situation where reputations may be at risk, perhaps unfairly, it is no surprise that there is passionate engagement in the rights and wrongs of every case. Indeed, it is right that there is debate on such issues. I am sure that we all agree that allegations of child sexual abuse, whether recent or in the past, are exceptionally serious matters. It is of course for the police to investigate such allegations. The Government have been absolutely clear that where an allegation of child sexual abuse has been made, it should be reported to the police, so that it can be thoroughly investigated and the facts of the case established. The police are guided in their investigations by the authorised professional practice issued by the College of Policing, referred to by the noble Lord, Lord Tunnicliffe, a few moments ago. The creation of the College of Policing has been an important pillar in our programme of police reform. The college is independent from government and its role is clear: setting high professional standards, sharing what works best, acting as the national voice of policing, and ensuring police training and ethics of the highest possible quality.

The college produces authorised professional practice guidance to the police on a wide range of policing issues. There is authorised guidance on the investigation of complex cases, which include the investigation of child sexual abuse. Separate guidance exists on managing relationships with the media and a revised version of this is currently out for consultation until 8 July this year. The new version will include guidance on when the police can provide details of a suspect ahead of any charges being brought and, as many of your Lordships have noted during this debate, that is a critical issue, of course.

The college has the power to place this practice guidance on a statutory footing, should it choose to do so. It has power—subject to the Home Secretary’s agreement—to recommend that regulations are made which will apply to all members of police forces. Stronger still, it has powers to make codes of practice, which chief constables must have regard to in the exercise of their functions. A code of practice is a statutory document and, should a chief constable not comply with such a code, they would be open to challenge. As I said, the decision to seek any statutory provision would be a matter for the college itself, which is independent of government.

Because it is the police who are the proper authority to investigate such allegations, the Government have no plans to extend or issue statutory guidance on investigating child sexual abuse more widely to other public bodies or institutions. As noble Lords of course will be aware, we have seen an increase in the reporting of recent and non-recent allegations of child sexual abuse connected to institutions and organisations. It is absolutely right and proper that these institutions should look into the circumstances of any such allegations. They should review their safeguarding responsibilities and make any necessary changes, whether that be in additional security, ensuring effective identification of risk to children and young people or more general safeguarding measures.

Institutions might need to investigate claims as the result of civil proceedings being brought against them. How they do this is essentially a matter for each organisation or institution on a case-by-case basis. Each body will have its own circumstances and procedures, both now and in the past, by which it must be guided. I do not believe that central prescription in the form of statutory guidance would assist them in undertaking this important duty. Indeed, imposing a unilateral process on so many disparate organisations may lead to less transparency and fairness rather than more.

It would not be appropriate for me to comment specifically on the particular cases highlighted during this debate, but I understand the concerns of my noble friend and others in this place about the process of these investigations. As noble Lords will now be aware, the Church of England announced on 28 June that an independent person will be appointed to review the processes used in the Bishop Bell case. However, my noble friend Lord Lexden will be aware that this was a civil, rather than a criminal, matter. It was entirely open for the complainant in that case to pursue a civil claim. Once that claim was issued, it was for the Church of England to consider the facts of the case and to decide whether to settle or to go to trial, and for the claimant to decide whether to agree to a proposed settlement. The parties to any civil dispute are entitled to reach a private settlement. They do not need to initiate any legal proceedings to do so and settlement of a dispute out of court is common. Of course, litigation should be a remedy of last resort. The role of the state in this context is to provide the court system to determine disputes that cannot otherwise be resolved.

I turn to some additional comments made by noble Lords during the debate. If my responses are short, it is not because I consider their contributions to be slight. The noble Lord, Lord Dear, brings a wealth of policing experience to his observations on operational matters, and I would not seek to comment on those matters in this context. The noble and right reverend Lord, Lord Carey of Clifton, suggested that civil action should never be used but, with respect, those who claim to have been the victim of a wrong must in a free society have access to courts of justice that can resolve the issue of that wrong.

My noble friend Lord Cormack referred to the need for more extensive and direct apologies. I aspire to a situation in which there is no requirement for apologies. The noble Lord, Lord Armstrong of Ilminster, spoke of the fact that, as witnesses are interviewed during the course of an inquiry, knowledge of an investigation will find its way to the media. That is, of course, the case. There are differing difficulties, depending on whether the person accused is still alive or is dead. If the person is still alive, they at least have the resort to the law of defamation in circumstances when a false accusation is made and repeated in the media. However, when a person is dead, they have no such opportunity.

The noble and learned Baroness, Lady Butler-Sloss, pointed out that, particularly in the case of historic allegations, it is necessary for the police and the Crown Prosecution Service to proceed with particular care. Of course, its job is not to seek conviction but to seek the truth. Careful and rigorous investigation is always required, and I would not comment further on such matters.

The noble and learned Lord, Lord Judge, alluded to the difficulties in the past of dealing with the evidence of young children when accusations of this kind were made. In a way, it is because we have improved our ability to deal with child evidence that we have unleashed this tidal wave of historic cases. It is only now that we appear to be able to cope properly with the evidence of people speaking to events that happened many years ago. One hopes that the numbers will dissipate as we engage with the historic cases that we have. The noble and learned Lord referred to the second part of the Pigot report. In light of the trial that has gone on in four of our courts over the last few years, we are evaluating the results of the pilot with a view to rolling that out nationally. The evaluation report is expected to be published soon; I acknowledge to the noble and learned Lord that it has perhaps been a little time in coming.

The noble Lord, Lord Paddick, suggested that we must always believe victims. I would perhaps put that in a slightly different way. We must always take allegations seriously, but there is always the danger that the accused will become a victim. We must bear that in mind as well, in this context.

Finally, the second part of Leveson was raised by the noble Lord, Lord Tunnicliffe. I observe that that was pressed by the Opposition to a vote in the House of Commons during the passage of the Policing and Crime Bill on 13 June, and I reiterate what was said at that time. The Government will consider the way forward following the conclusion of criminal proceedings connected to part 1 of the Leveson inquiry.

[Lord Elton (Con)]

I apologise for intervening at this stage. I have become very rusty since I took the PACE Bill through this House many years ago, but my noble friend said that the code of practice for chief constables, issued from within the police force, had a statutory power. Does that not mean that it is therefore subject to consideration by Parliament under the provisions for other statutory instruments?

[Lord Keen of Elie]

I endeavoured to say that the codes of practice emanate from the College of Policing, and it would be open to the College of Policing to seek to put them on a statutory footing. They are independent of government, and it would be for the college to take that step. I am obliged to the noble Lord, Lord Dear, for nodding in agreement.

EU Nationals in the UK

Lord Keen of Elie Excerpts

Wednesday 29th June 2016 Lords Chamber

[Lord Lucas]

To ask Her Majesty’s Government whether they plan to take steps to reassure European Union nationals currently resident in the United Kingdom that their future in this country will not be affected as a result of the European Union referendum result.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, as the Prime Minister has said, there will be no immediate changes in the circumstances of European nationals currently residing in the United Kingdom. European Union nationals do not need to apply at present for a resident’s card or a permanent resident’s card to enjoy their free movement rights and responsibilities.

[Lord Lucas (Con)]

I thank my noble friend for that Answer. However, does he not agree that unless we make it clear to European Union nationals, who we have welcomed here to work and make their careers, that in the event of Brexit they will have an unconditional right to remain and to continue in those careers, we will find it impossible to recruit such people for our businesses, particularly in the City, and will do ourselves a great deal of damage?

[Lord Keen of Elie]

Any criteria set which enable EU citizens to remain in the United Kingdom following exit from the European Union will depend on the outcome of the negotiations and the scope of any reciprocal agreements concerning British citizens who live in other member states.

[Baroness Smith of Newnham (LD)]

My Lords, would it not be up to Her Majesty’s Government to open the way for EU nationals to reside in this country after we leave the European Union?

[Lord Keen of Elie]

It will, as I say, be a feature of any future negotiation to determine the status of EU citizens within the United Kingdom and of British citizens within the EU.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, will the Minister tell the House with whom the Government would negotiate to secure the position of European citizens who live and work in this country now? Surely there can be no reason why the decision to allow those people to stay should not be taken by this Government alone.

--- Later in debate ---

[Lord Keen of Elie]

As noble Lords are aware, nothing will change overnight as a result of the decision to leave the European Union, and no determination will be made at this time with regard to citizens within the United Kingdom.

[Lord Elystan-Morgan (CB)]

My Lords, is the Minister aware of the social abuse that foreigners have suffered over the last few days since the referendum, and will he kindly look at the offence of threatening, abusive and insulting words and behaviour under the Public Order Act 1936, as well as the offence of acts intended or likely to stir up racial or religious hatred under the 2001 Act? If he comes to the conclusion that they have been very narrowly drafted, for all that they have achieved, will the Government be prepared to legislate on this matter?

[Lord Keen of Elie]

My Lords, recent behaviour towards EU citizens in this country is to be deprecated. We consider that we have sufficient laws in place to deal with these matters without further review at this time.

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble friend recall that the Prime Minister made it clear that EU citizens who are living in this country, with employment in this country, will be able to remain so? Does he recognise that people are sick and fed up that this fearmongering campaign is continuing after we have made a clear decision? It is important that EU nationals who are resident in this country are reassured of their position. Will he please do so?

[Lord Keen of Elie]

My Lords, those EU nationals who are resident in the country at the present time can be reassured that there will be no change, as our membership of the EU continues over the next number of years. Nevertheless, as the Prime Minister has made clear, it is for the next Prime Minister and Government to decide when to trigger Article 50 and to carry on the relevant negotiations.

[Lord Pearson of Rannoch (UKIP)]

My Lords—

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the mutual benefits of having UK citizens living in Europe and European Union citizens living in the United Kingdom are obvious and apparent; no doubt that will be reflected in the negotiations that are to be carried on after Article 50.

[Baroness Liddell of Coatdyke (Lab)]

My Lords—

Investigatory Powers Bill

Lord Keen of Elie Excerpts

Monday 27th June 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, this has been an interesting and thought-provoking debate, which has benefited from the considerable expertise on all sides of this House. I am grateful to all those who have contributed. In particular, I welcome the contributions from those opposite. This reflects the constructive approach that has been taken to the Bill right across Parliament.

Indeed, I recognise the consensus on all sides of this House that new legislation is needed to make the use of these powers clearer and more transparent. We have an opportunity now to ensure that the security and intelligence agencies and law enforcement have the powers they need, and to strengthen the safeguards and oversight that govern their use. The list of speakers this evening is testament to the importance of this issue.

Mention has repeatedly been made of the need to balance privacy and security. There have been references to the privacy of the innocents, but one must also take account of the protection of the innocents. As the noble Baroness, Lady Liddell, observed, one of the primary human rights is the right to life, and without that the others fade into insignificance.

A number of issues have been raised in the course of this fairly lengthy debate. If I am short in responding to them at this stage, it is not because I consider those contributions slight but because I am constrained by time.

The noble Lord, Lord Rosser, raised the question of EU co-operation, which has just been revisited by the noble Baroness, and whether that would impact the present Bill. There is, of course, no immediate change to our relationship with the EU and it is not considered that any changes are or will be required to the Bill by virtue of recent developments. Of course, negotiations will take place over the coming weeks and months with regard to our situation and the EU, and these will clearly need to take account of our security and the need for cross-border co-operation in the area of security and the need for further co-operation beyond that. But let us remember that we already co-operate with many countries beyond the European Union in matters of security. Noble Lords will be familiar with the “Five Eyes”, which includes the United States, Canada, Australia and New Zealand—none of them connected with the European Union. So it is not considered that that will be an issue for the Bill as it proceeds.

The noble Lord, Lord Rosser, also referred to the undertakings and commitments that have been given in the Commons with regard to the Bill. Of course, we will meet those commitments and undertakings. We fully intend to bring forward a number of amendments. We intend to have those amendments available by 4 July.

There are remaining issues, of course, that will be the subject of further debate. The noble Lord, Lord Rosser, made reference to such issues as the privacy clause, which is now expressed in the Bill and the Bill is improved because of that; the express provision on trade unions—again, the Bill is improved because of that; and the question of dealing with whistleblowers’ protection, which the Solicitor-General alluded to in the other place. Again, we will meet our commitments with regard to these matters.

I turn to some of the observations of the noble Lord, Lord Paddick, which were supported to some extent by the noble Lord, Lord Oates. He concentrated in particular on internet connection records and something that he referred to as a draconian power. I noticed that the noble Lord, Lord Condon, alluded to these powers and was at pains to point out that they were not extending any boundaries but maintaining them. I would go further: these powers are actually restoring a boundary that had been lost as people moved away from conventional telecommunications. There was a time when police powers in regard to conventional telecommunications would provide them with the datasets they required, particularly in the context of evidence gathering and prosecution.

I pause on that note. The noble Lord, Lord Paddick, suggested that recourse could be had to the powers of the security services rather than in gathering ICRs. But of course that is neither practical nor effective because many of the powers of the security services produce investigative material that is not admissible as evidence in a court of law. Therefore, one has to be careful about how one confuses the powers of the security services to gather and investigate and the powers that are conferred upon the police in the context of internet connection records.

With regard to the security of that material, the noble Lord, Lord Oates, raised a number of questions, some of which puzzled me a little. What I will say is this: clearly, the data are retained by the service provider and those service providers are bound by various data protection obligations with regard to the security of those data, and that will continue to be the case. As regards the period of retention—12 months—that reflects the requirements of the police in the context of the sorts of investigations that are carried out by reference to these kinds of data; that is, telephonic communications data and the like.

So far as cost is concerned, the noble Lord, Lord Paddick, cited a figure of £1 billion. I know not where that figure came from, but the considered opinion of the Government is that the cost will be in the region of £174 million over 10 years. Of course, that cost is not to the service providers but will be met by the Government where it is reasonably incurred by the service providers when and if they are required to retain the relevant data.

The noble Lord, Lord Paddick, also referred to the request filter as a database and said that it was therefore vulnerable. The request filter is not a database; it is simply a filter. It is a further safeguard because it will operate in such a way that where a mass of data are returned by a service provider they will go through the request filter, and the relevant authority will receive only the data it requested and no additional data, notwithstanding what the service provider may have made available. I hope that answers the points raised by the noble Lord, Lord Paddick.

I will not be able to answer every query that has been raised today. If at the end of this evening there are any points that noble Lords feel I have not responded to and wish me to do so before Committee, they should allow my office to be aware of that and I shall arrange to write to them on the particular topic. I say “my office” in response to an observation from one of my noble friends who said that there was no Home Office Minister here. I had understood that I was here in the capacity of a Home Office spokesperson. If I am not, I want to know why I have been answering all these questions for the past four weeks.

The noble Lord, Lord Paddick, also referred to the RUSI 10 tests, which were alluded to by the noble Lords, Lord Hennessy and Lord Rooker. Professor Michael Clarke, the then director-general of RUSI, gave evidence to the Joint Committee that scrutinised the draft Bill. He said:

“As Chair of the RUSI panel, I can say that the Bill met most of our expectations in terms of the recommendations that we made”.

The noble Lord, Lord Rooker, made the sensible suggestion that we should consider producing a paper in which we set out the Government’s response to each of those 10 points. I hope he will understand what I mean when I say that we will take that and give it due consideration.

The noble Lord, Lord Pannick, raised the question of legal professional privilege. He was joined in these observations by the noble Lords, Lord Lester, Lord Beecham and Lord Thomas. I notice that, in his account of his experiences, the noble Lord, Lord Thomas, did not say what happened to the bag of money but surely we can infer that it remained where it was. I fully accept the analysis of legal professional privilege that has been advanced by each of the noble Lords. The present position is this: I am due to meet representatives of the Bar Councils and the Law Societies this coming week to discuss the scope of the provisions within the Bill with regard to legal professional privilege.

The noble Lord, Lord Pannick, was right to observe that there is one problematic area—the question of when and to what extent there should be access to LPP material in circumstances where there is no iniquity. There may be very exceptional circumstances in which it is critical in the context of an immediate investigation that some data should be recovered. That will be addressed and we will bring forward our finalised position in due course.

There was also the question of journalistic privilege. This has been clouded by a misunderstanding on the part of many journalists as to what, if any, privilege they actually enjoy, in particular the belief that whenever security services sought information from a service provider they would be given notice of that. That is not the case. It is not the present law and it is not realistic that that can be law. However, again, this will be addressed going forward.

In addition, of course, we have to address the question of what is a journalist. I believe one noble Lord on the opposition Benches said that could be defined normally by waving an NUJ ticket. That is no longer the case and virtually every blogger on the planet would claim to be a journalist of one kind or another. It is a very serious issue and we will seek to address it.

The noble Lord, Lord Blunkett, mentioned the necessary balance between liberty and privacy and again underlined the need to balance the privacy of the innocent with their protection.

The noble Lord, Lord Strasburger, raised a number of issues. I shall not repeat what I have already said about internet connection records or the request filter. He also questioned whether the provisions of the Bill would somehow threaten, as he put it, encryption. There is no question of that. The provisions of the Bill do not weaken encryption or threaten it. We do not seek what have sometimes been erroneously termed “back doors” into encrypted material. I would seek to dispel any such suggestion.

The noble Baroness, Lady Neville-Jones, raised questions about extraterritorial jurisdiction, as did the noble Baroness, Lady Liddell, and the noble Lords, Lord West and Lord Janvrin. The US Attorney-General recently indicated that discussions are ongoing to address conflicting legal obligations in circumstances where we seek the release by American companies of material. United Kingdom law is perfectly clear that companies providing communication services to users in the United Kingdom, irrespective of where they are based in the world, must comply with lawful requests and warrants from UK authorities. The ultimate power to deal with that would of course be contempt of court proceedings. We maintain that right to extraterritoriality. In response to a further point made by the noble Baroness, Lady Liddell, I should add that we are satisfied that the provisions of the Bill comply with and meet our international legal obligations. Whether it sets a template for others is a different matter, but we are satisfied in that regard.

The noble Lord, Lord Lester, raised the question of legal professional privilege. He also referred to the position of the IPC and to the “commission”. I should be clear that in terms of the Bill there is no commission; there is a commissioner. However, the commissioner has the express power to seek independent legal advice as and when required. I believe that another of your Lordships referred to the commission. It is not a commission; it is the commissioner.

[Lord Lester of Herne Hill]

I am grateful for what the Minister has just said, but will the Government consider, as David Anderson has suggested, that there should be a commission endowed with the kind of powers that he has recommended?

[Lord Keen of Elie]

I note the observation. The position of the Government is that it is appropriate that there should be a commissioner and that it is not necessary that there should be a commission. Clearly, this matter can be revisited in Committee.

Thematic warrants were mentioned by the noble Lord, Lord Lester, and my noble friend Lord Lothian. Thematic warrants are considered vital to investigate complex and fast-moving threats, and they are currently provided for under RIPA. The Bill simply clarifies and strengthens the safeguards around the operation of thematic warrants but, again, if there are issues as to their scope, they can be revisited in Committee.

My noble friend Lord Lothian and the noble Lord, Lord Janvrin, raised the question of bulk personal data. The Government accepted in principle the argument that we should provide further restrictions on the use of class BPD warrants and should take into consideration some of the detail contained in the ISC’s draft clause. The Government intend to bring forward some amendment on this—again, I indicate that it should be available by 4 July.

My noble friend Lord Lothian also mentioned additional offences being incorporated into the Bill. It is considered that the changes made to Part 1 make clear the criminal offences that apply. The Bill also creates a new offence for the acquisition of communications data without lawful authorisation. Beyond that, it is not considered appropriate to introduce further criminal offences into the Bill at this stage.

Questions were raised about the double lock, of course. The position of the Government, and I believe that of the Opposition, is that we have now arrived at a suitable position in this respect, but it is important that the judicial point here should be subject to a test of judicial review. It would not be appropriate for a judge in these circumstances to revisit the merits of a decision, and I hope that that will find wider support in the House in due course. In the end the Secretary of State must be answerable to Parliament for the warrants for these intrusive powers, and that is allowed for.

In the context of warrants, the noble Lord, Lord Evans of Weardale, raised the question of speed of operation. There is provision within the Bill for an emergency warrant to be issued by the Secretary of State and then be the subject of review by the judicial commissioner. It is hoped that speed of operation will not be challenged by the terms of the Bill going forward. The noble Viscount, Lord Colville of Culross, mentioned in the context of journalists the matter of notification of warrants. As I indicated, that is not the present law and it is not considered a realistic way forward, but again I anticipate that that may be considered in Committee.

Modern legislation that consolidates and clarifies the powers available to the state to obtain communications and related information is, I believe it is generally acknowledged, badly needed now. That was the conclusion of three independent reviews and three committees of Parliament. The Bill achieves that aim. The threats we face are evolving and the ways in which we communicate are changing rapidly. The capabilities of law enforcement and the security and intelligence agencies must evolve and change too. It is Parliament’s responsibility to ensure that those charged with keeping us safe have the powers they need, governed by strong safeguards, strict protections and robust oversight. That is what the Bill provides.

The Government are clear that the Bill must command the support of Parliament and the public. It arrives in this House having been subject to extensive debate and examination in the other place and having received cross-party support and a resounding majority there. As we have done to date, we will continue to listen, to engage and to make changes that improve the Bill or strengthen its safeguards. We have the opportunity here to deliver world-leading legislation that provides robust oversight and powerful privacy protections. It is legislation that is clear, comprehensible and legally sound. It will provide the men and women of our law enforcement and security and intelligence agencies with the powers they need to keep us safe. I commend the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.

EU Action Plan Against Migrant Smuggling (EUC Report)

Lord Keen of Elie Excerpts

Wednesday 15th June 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I would like to thank the European Union Committee for producing its report on the EU action plan against migrant smuggling and its report on Operation Sophia, and to thank all those who have spoken in this debate.

I would like to touch on some of those contributions for a moment. The noble Baroness, Lady Pashar, alluded to various proposals in the committee’s report. In order to see these in context, it is important to remember that as a nation we must maintain border security. We must maintain a coherent immigration policy. As has been acknowledged, public opinion, if nothing else, would demand that we maintain such a coherent policy.

A number of your Lordships observed that the European Union cannot accommodate all those who wish to come. That is clearly a truism. The Government’s opinion is that there is little evidence to support the proposition that providing opportunities for a small number of migrants to travel legally from source countries will have any significant impact on the very large numbers of migrants who are prepared to travel illegally into the European Union. As the Government recognise, there will of course be some vulnerable people in Syria and the region who can be effectively supported only in countries such as the United Kingdom. That is why the Prime Minister announced the major expansion of the Syrian vulnerable persons relocation scheme, under which we will provide refuge for vulnerable people.

I turn to the contribution of my noble friend Lord Tugendhat. I congratulate him on his chairmanship of the committee, which is now coming to an end. I hope he will accept that what is impossible today may become possible tomorrow. As many of your Lordships observed, this is a complex problem for which there are only long-term solutions. There are no simple immediate answers, although I note that the noble Lord, Lord Rosser, has asked me for some. I will come on to that in a moment. Looking forward, we have to see changes in areas such as Libya, with stability of government there, before we can reach any kind of effective result in the Mediterranean.

The noble Baroness, Lady Suttie, referred to the crime of people smuggling. It is an immense problem, considered to be the fastest-growing crime in Europe at present. Indeed, the sums involved have been estimated at anything between €3 billion and €6 billion. She mentioned the shift from the Aegean to the middle of the Mediterranean. On that, the Turkey agreement appears to be succeeding. The numbers crossing the Aegean up until the beginning of June are about 10% of what they were a year ago. We have not seen an entire shift of those numbers into the middle Mediterranean. Indeed, the most recent numbers from the middle Mediterranean were slightly lower than they were a year ago. But we will all accept that these smugglers are ruthless criminals. They will find another route, and we have to be prepared to address that as it emerges. Indeed, we have to be prepared to seek the intelligence that will allow us to pre-empt these criminals when they seek these alternative routes.

The noble Baroness also made the point that it is important to distinguish between refugees and economic migrants. That is an important part of the issue. Indeed, we find that so many of those who present themselves as refugees, as asylum seekers, are in reality economic migrants. That is often not an easy issue to resolve. One has to acknowledge that the more economic migrants come forward to claim that they are asylum seekers, the greater the pressure on our resources and therefore the more difficult it is to process those who are genuinely refugees. Indeed, I note in passing that more than 90% of the asylum claims in the United Kingdom are made by persons already here, and who have therefore arrived illegally or under a visa and overstayed their visit. That is the extent of the problem.

Again, as the noble Baroness, Lady Suttie, acknowledged, long-term solutions are needed. Those will be found at source more than anywhere else. My noble friend Lord Horam pointed out that the problem lies at source. That is what drives people away from these countries in sub-Saharan Africa. He also mentioned Jamaica. He made a further important point. As these countries lose their best, their youngest, their best-trained and best-educated, it exacerbates the problem at the source. They lose their doctors, nurses and engineers; they lose a viable economic future. That is why it is important not only to stop this economic migration but to have an effective and viable returns policy. That is welcomed by some of these countries, which want to see their best-educated return to their own country.

The noble Lord, Lord Anderson, alluded to the fact that we cannot accept all who wish to come here. That is absolutely clear. It is therefore necessary to invest our resources in dealing with the problem at source, whether it be health, economic or otherwise. Indeed, we ought to try to maintain a system whereby we give temporary shelter to genuine asylum seekers so they can return in due course. That is why we have encouraged and sought to support those countries that are doing so much in the vicinity of Syria, such as Lebanon and Jordan. They are maintaining facilities for many refugees who want to remain in the Middle East and want the opportunity to return to their own country in due course. We acknowledge the importance of that.

The right reverend Prelate the Bishop of Sheffield alluded to what we need to do when people actually arrive here. Of course, we cannot ignore the need for sanctuary of those who arrive, and I do not believe that any of us would wish to do so.

My noble friend Lord Patten raised the question of what we are doing on the ground, and when we might do something on the ground in Libya. Of course, part 3 of Operation Sophia deals with moving into territorial waters and on to the coast to try to address people smuggling. That cannot be done until we have a stable Government in Libya and appropriate approval from the United Nations. It remains part of our medium or long-term proposal for that project. I am not aware of any request from the present Libyan Government for us to put people on the ground in Libya. If it transpires that there has been such a request, I will write to the noble Lord, but I believe it is widely understood that we cannot take that step into territorial waters or into the territory of Libya until there is a stable Government.

In that context, I have a further observation on a point raised by one of your Lordships about returns to Libya. Let us be clear: there is no question of persons being returned to Libya unless and until it is a safe place for their return, whether they have been picked up in the Mediterranean or elsewhere. When my right honourable friend the Prime Minister alluded to the possibility of returns to Libya, it was in the context that it would occur only when it was safe for such persons to be returned.

I appreciate that I have not mentioned the contributions of all noble Lords expressly, but I hope it will be appreciated that I have taken all of them into account and wish to consider them. The noble Lord, Lord Rosser, raised a number of specific questions about policies that have yet to be implemented and decisions that have yet to be made in the context of certain proposals. In particular, he referred to our contribution to the proposed EU partnerships. I am not aware of any decision having been made on that, but I will inquire and write to the noble Lord on that point. On specific improvements arising from the implementation of the task force, I suspect that it is too early to say that there are improvements we can isolate and report on, but, again, if there are, I undertake to include that in my letter.

We have to remember that the EU action plan against migrant smuggling is intended to shape the EU’s law enforcement response to immigration crime. It sets out concrete actions to counter and prevent organised immigration crime. The Government share the view expressed in the action plan that there should be a focus on an enhanced police and judicial response, improved gathering and sharing of information, and stronger co-operation with third countries. The UK’s response to the migration crisis must be comprehensive, utilising expertise and resources from across government and law enforcement. In order to be successful it must include a humanitarian response, law enforcement activity and capacity building in source countries.

Of course, some of those making the dangerous journey to Europe are fleeing conflict but others are economic migrants. That is why we are leading the argument in Europe about the importance of breaking the link between these journeys and achieving settlement in Europe for those who are not refugees. We are playing a leading role in tackling organised immigration crime. We have established a multiagency Organised Immigration Crime Taskforce, which brings together officers from the National Crime Agency, Border Force, Immigration Enforcement and the Crown Prosecution Service. Its purpose is to exploit every opportunity to identify and tackle people smugglers.

The Organised Immigration Crime Taskforce is working in 17 countries, giving UK law enforcement unprecedented reach in source and transit countries. The task force is achieving success, both on land and at sea. Land enforcement agencies have had some notable successes. Between 1 April 2015 and 31 March 2016, immigration enforcement achieved 175 disruptions against criminals involved in organised immigration crime. The recent interception at sea of the MV “Haddad”, which was detained by Greek authorities en route to Libya, is another notable success. There were weapons, ammunition and smuggled cigarettes on board and, had the vessel reached Libya, there is strong evidence that it would have made the return journey with migrants on board.

The task force is also working to enrich the intelligence picture. Officers have been deployed to the existing Frontex debriefing centres in Italy and Greece. There, they are assisting other agencies to gather intelligence from migrants arriving at external EU borders. This information is passed to the host member state for it to disseminate to law enforcement agencies.

The UK also engages closely with the European Migrant Smuggling Centre—which was mentioned by the noble Lord, Lord Rosser, and I think by the noble Baroness, Lady Prashar—which leads for Europol on organised immigration crime. The UK is a key contributor and we are working to improve the overall intelligence picture by encouraging countries to share information effectively with the centre.

In addition to our relationships at a European level, we are also engaging with our closest neighbours to create a strong joint response to migration. We are working closely with the French, Dutch and Belgians to increase the security of ports with links to the United Kingdom and increase co-operation against organised immigration crime. Such work has so far seen improvements in joint work on security measures at ports, intelligence sharing and returns. Activity will continue to determine what additional operational, technological and infrastructure assistance could be provided at relevant ports.

As well as pursuing the criminal gangs involved in immigration crime, the UK is also working with source countries to address the root causes of migration. Through our aid programme around the world we are growing economies and creating jobs. This in turn helps to build more effective states and societies, reducing some of the pressures to migrate. It also helps undermine the business model of organised crime groups. We are also at the forefront of the response to the crisis in Syria, where the United Kingdom has committed over £2.3 billion—our largest ever humanitarian response. The UK’s support is helping refugees to remain in host countries in the region and supporting host countries to accommodate them.

In Libya, the UK is supporting the Government of National Accord to regain control of Libyan borders and tackle the organised crime groups. Operation Sophia, the EU’s naval operation in the central Mediterranean, has already seen some success. Since its inception last summer, Operation Sophia has destroyed more than 120 smuggling boats on the high seas, apprehended more than 70 suspects and saved more than 15,000 lives. This is good progress on which we can build.

The UK survey ship HMS “Enterprise” has been participating in the operation. To add support during a surge of assets in October and November, we also contributed HMS “Richmond”. But the smugglers are of course adept at changing their tactics, so we must be aware of that and be prepared to respond. That is why we have agreed with EU partners to expand Operation Sophia’s scope to include activity to build the capacity of the Libyan coastguard and to prevent the trafficking of illegal arms into Libya. We remain committed to moving to the later phases of Operation Sophia, to prevent smugglers putting to sea, once the right conditions are in place. With a new Government in Libya, we have an opportunity to take this forward—and, therefore, what has seemed impossible may in the medium to long term become possible.

In May of this year, the Prime Minister announced that four military planners had deployed to the Operation Sophia headquarters in addition to the UK personnel already present. They are working on options to build the capacity of the Libyan coastguard and, in due course, we expect to support the delivery of this with a UK training team. This activity will help secure the coast of Libya and harden the operating environment for people smugglers.

The Prime Minister also announced that we will seek to commit a second ship to Operation Sophia to tackle arms smuggling to Libya. The UK has worked hard to secure a UN Security Council resolution authorising member states to take action to support the embargo. This was agreed unanimously last night. The arms that are illegally supplied from the Mediterranean reinforce violent armed groups, and Daesh in particular. Countering the flow of weapons and military equipment will support the wider effort to promote stability in Libya and a stable Libyan Government.

The work of Operation Sophia is just one element of wider UK efforts to support the humanitarian needs of migrants. The United Kingdom is providing £70 million to the Mediterranean migration crisis response. Some £60 million of this is allocated to Europe to provide lifesaving aid to migrants and refugees, as well as support to Governments to build their capacity to manage arrivals. At the EU-Africa Valletta summit, the Prime Minister announced a further £200 million in bilateral aid to Africa to deal with the root causes of migration and a €3 million contribution to the EU trust fund for Africa. I say that in response to the observations of the noble Lord, Lord Rosser.

In the Horn of Africa we are supporting the Khartoum process that was mentioned by the noble Earl, Lord Sandwich, which focuses on combating organised immigration crime and human trafficking in the region. The goal of the process is to encourage member countries to work in a co-operative manner to tackle the shared challenge of organised immigration crime. It aims to achieve an improved understanding of this threat and to establish ways to strengthen capabilities in the region. It is not easy and requires us to engage with certain regimes when we might otherwise not wish to do so.

The law enforcement approach outlined in the EU action plan against migrant smuggling is one element of the EU’s response to the migration crisis. This is complemented by the United Kingdom’s law enforcement, as well as wider activity such as Operation Sophia to meet the humanitarian needs of migrants, tackle the root causes of migration and respond to the ever-developing challenge posed by criminal people smugglers —and in that we maintain our intent. I thank noble Lords for their attention.

Euro 2016: Fan Violence

Lord Keen of Elie Excerpts

Tuesday 14th June 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie)]

My Lords, in an effort to avoid a double act, I wish to repeat in the form of a Statement a response to an Urgent Question given by the Secretary of State for the Home Department in the other place on violence in Marseilles at the Euro 2016 Championships. The Statement is as follows.

“The trouble that occurred in Marseilles involving England supporters was deeply disturbing. I also made it clear that co-ordinated groups of Russian supporters were responsible for instigating a good deal of the worst violence. I note that UEFA has announced this morning that Russia is subject to a suspended disqualification from the tournament. This Government’s priority now is to work with the French authorities to ensure that the events of the weekend are not repeated.

This morning I updated Cabinet colleagues on the full range of measures that we are taking ahead of the match between England and Wales in Lens on Thursday. It had already been agreed with the French that an additional contingent of United Kingdom police spotters would be deployed to help identify troublemakers. The Foreign Office is advising supporters without tickets that they should avoid travelling to Lens and nearby Lille. The Foreign Office has drawn fans’ attention to the fact that Russia is playing Slovakia in Lille tomorrow afternoon and said that English and Welsh supporters should be on their guard.

Stadium security is an area of significant concern following the breakdown of segregation in the Vélodrome stadium. We are acutely conscious of the dangers when crowd management inside a stadium goes wrong, and discussions are in hand with the French police about reinforcing the stewarding operation in Lens on Thursday night.

The House will already be aware of the robust operation in place in this country to prevent known troublemakers subject to football banning orders from travelling to France before the start of the tournament, which has seen almost 1,400 passports being surrendered. Following the violence in Marseilles, nine British nationals were arrested and six have now been given custodial sentences for their involvement in the violence. Our expectation is that all will be subject to additional court proceedings on their return to the United Kingdom to examine whether banning orders should be imposed.

We are deeply concerned at the very serious injuries suffered by some England supporters in Marseilles. The Foreign Office has additional staff in France and is providing consular assistance to those who have been hurt and their families.

We are confident that all the measures we and the French are taking will help, but I would conclude by echoing the England captain and manager, who have urged fans to stay out of trouble. As the UEFA decision in relation to the Russian team shows, the penalties for individuals and for the teams they support could be severe if there is more violence in the days ahead”.

My Lords, that concludes the Statement.

[Lord Rosser (Lab)]

My Lords, the violence in Marseilles is to be deplored. It has involved a small minority of England supporters, although organised groups of Russian supporters have apparently been at the heart of the most violent acts. Whoever is to blame, the reality is that matches are taking place in other parts of France, involving other nations’ supporters, without the violence we have seen both inside and outside the stadium in Marseilles.

We can express our concerns about the policing arrangements and tactics in the streets of Marseilles and about ineffective security and segregation arrangements in place inside the stadium. However, the fact is that this is far from the first time that a small minority of England supporters has been involved in violent scenes when our national team has been playing in major competitions abroad. It damages us all and our country.

For the Government to say that they are “hopeful” the French police will reinforce the stewarding arrangements for England’s next game is not sufficient, since clearly the current approach has been shown to be inadequate. What further action are the Government taking in conjunction with UEFA and the French authorities to ensure the safety of the vast majority of supporters from the three home nations involved, who are only in France to enjoy the football? In addition, what further action are the Government taking to prevent similar trouble arising, associated with England and Wales playing in Lens on Thursday, particularly bearing in mind that the previous day Russia will have been playing in Lille only some 25 miles away, and that many England and Wales supporters are likely to be basing themselves in Lille alongside Russian supporters?

[Lord Keen of Elie]

I entirely concur with the observations of the noble Lord with regard to the outrageous behaviour of a very small minority of English supporters, which casts a shadow upon all those others who simply wish to enjoy a UEFA championship tournament. With regard to further steps and to policing within stadiums, one has to bear in mind that the conditions for policing and the segregation of fans differ between Europe and our domestic football league. Under the present UEFA rules, it is not possible for the police to be stationed within the stadium during the match. Consequently, segregation is left to stewards within the stadium. That is the subject of ongoing discussion.

With regard to further assistance from this Government, further police officers were requested by the French, and police spotters will be provided in Lens in the run-up to the match between England and Wales. In addition, British Transport Police officers have been stationed on cross-channel services, and indeed on services to Lens and up to Lille itself. Furthermore, the Foreign Office has given advice that those without tickets should not travel to Lens or to Lille. As the noble Lord observed, on the day before the match in Lens there is a match between Russia and Slovakia in Lille.

[Lord Addington (LD)]

My Lords, first, we express our condolences to all those innocent parties caught up in this violence. Secondly, can the Minister give us some assurance that co-operation between European states, whether in or out of the EU, is very important, and that such things as are available to us, including the European arrest warrant, will be used to pursue anybody who we discover has been involved in this after the event, if not before?

[Lord Keen of Elie]

I cannot say to what extent the European arrest warrant will have to be deployed in respect of persons responsible for these actions in France. However, persons who return to England may be subject to the civil procedure relating to football banning orders, which results in the loss of their passports. With regard to co-operation, there has been co-operation between the English and French police authorities since well before the championship began, and that co-operation continues.

[Lord Elystan-Morgan (CB)]

Will the noble and learned Lord express admiration for the actions of the 24,000 Welsh supporters on Saturday night in the Slovakia game, in that they reacted to their success by way of exquisite choral harmony, thus endorsing the words of Dylan Thomas:

“Thank God, we are a musical nation”?

[Lord Keen of Elie]

I compliment those fans on their musical harmony and passivity.

[Viscount Hailsham (Con)]

My Lords, would it not be desirable for the Russian Government to provide the kind of assistance to the French Government that the United Kingdom Government are providing? Will my noble and learned friend tell the House what steps we are taking to encourage that?

[Lord Keen of Elie]

I am not sure that at this stage the Government would wish to encourage the Russians to place police officers in France for the purposes of the championship.

[Lord Wigley (PC)]

My Lords, is the Minister aware that the behaviour of the 24,000 Welsh fans at Bordeaux on Saturday, of whom I was one, was described by the French police as incident-free and by the French press as a joyous occasion? Will he commend to the English fans the need to replicate this approach to sport in whatever remaining games England have in this competition?

--- Later in debate ---

[Lord Keen of Elie]

I believe that such commendation is not required because the vast majority of English supporters are decent and peaceful. We are dealing here with an exception, where a tiny minority has tarred the others. I do not believe that one should assume that, because this tiny minority has brought this shadow on the game, it reflects the views of the vast majority of English supporters.

[Lord Watts (Lab)]

My Lords, the British police are trying to track down the British hooligans who took part in some of the riots that we saw over the weekend. Do we know what Russia is doing about that? If it does nothing, does that not raise the question of whether we should have the next championship in Russia?

[Lord Keen of Elie]

We are not aware of the steps that the Russians are taking in response to the events in Marseilles. The question of where the World Cup should be held is for FIFA, not for the Government.

[Lord Robathan (Con)]

My Lords, further to the question from my noble friend Lord Hailsham, should not Her Majesty’s Government take a position on what the Russian Minister has said about his fans’ behaviour in France?

[Lord Keen of Elie]

We will take the Russian Government’s response into consideration. Indeed, I understand that the Russian Sports Minister was present in the stadium at Marseilles at the time of the match. It will be the subject of the further ongoing inquiry that has been initiated by UEFA.

[Baroness Billingham (Lab)]

My Lords, I am very apprehensive—in fact, I am almost paranoid—that a sword of Damocles is hanging over the England team. My worry is that somebody or some group of people could trigger an event during, after or before the match. Can the Minister guarantee that the French authorities and our own authorities will have an enormous presence there to make sure that there is no injustice?

[Lord Keen of Elie]

The policing and security arrangements at Lens are a matter for the French authorities, not for this Government. Of course we have stepped forward to assist them when requested to do so, but we cannot guarantee anything in that regard.

[Lord Faulkner of Worcester (Lab)]

My Lords, the Minister is of course right to say that the decision as to whether the 2018 World Cup should be staged in Russia is a matter for FIFA. However, do the Government have a view on the desirability of that, should the suspended disqualification of Russia from this tournament turn into an actual disqualification because there is further trouble in France?

[Lord Keen of Elie]

That involves a series of hypotheses. It appears to me that we should await the outcome of the events, and indeed of the inquiry into the events, in Marseilles.

[Baroness Taylor of Bolton (Lab)]

Will the Minister recognise that what has happened has happened? We are not talking just about hypotheticals here; we have seen real, calculated violence from a group of Russian supporters. It is very serious, and is it not rather complacent of the Government to say that we will wait to see what happens?

[Lord Keen of Elie]

It is not a case of being complacent. The question posed by the noble Lord proceeded upon the basis of the suspension hanging over the Russian team becoming an actuality. It has not become an actuality, and it is only that hypothesis that I referred to.

Migrants

Lord Keen of Elie Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Higgins]

To ask Her Majesty’s Government whether it is their policy that migrants rescued from the English Channel should be returned to France, rather than brought to the United Kingdom.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we work closely with the French to protect the border and prevent illegal migration. This includes on maritime threats. Our focus is on stopping boats leaving Europe and on developing strong intelligence processes. Migrants encountered in United Kingdom territorial waters by UK agencies are brought here, where they will be processed under UK legislation, in line with EU and international law. For those not claiming asylum, we seek a quick return.

[Lord Higgins (Con)]

My Lords, is it not clear that people smugglers and traffickers are able to persuade migrants to risk crossing the Channel despite the fact that their boats are unsafe and it is extremely dangerous to cross shipping lanes and so on, because they will be rescued and taken to the United Kingdom? Would it not frustrate the traffickers and people smugglers if we were absolutely clear that if people are rescued they will be returned to France, where, if they are genuine asylum seekers, they can anyway claim asylum?

[Lord Keen of Elie]

With respect, it is necessary to have regard to international law in this respect, and the extent of our territorial waters. Pursuant to the UN convention on the seas, our territorial waters extend 12 miles from the coast, as do those of France. Our borders agency works within those territorial waters. Equally, the French work within their territorial waters. Of course, at Dover and Calais La Manche is only 20 miles wide. Nevertheless, although it may meet at a median point, we have to respect each other’s territorial waters. Those who are found in UK territorial waters are brought to the United Kingdom. Those found in French territorial waters are taken to France.

[Lord Hain (Lab)]

Is it not the case that if we left the European Union, the Dublin agreement would no longer operate and the French would have no obligation to receive people who came to their shores but ended up in Britain or in the sea? Of course, the same applies to every other member state where they might have first crossed European Union boundaries. Furthermore, is it not the case that if we left the French would shift the whole horrendous problem of refugees in Calais straight over to the White Cliffs of Dover? What consequence would that have for the people of the surrounding area?

--- Later in debate ---

[Lord Keen of Elie]

Strictly speaking, our agreements with France over these matters are not predicated on our membership of the European Union, so we should be clear about that. Nevertheless, we benefit greatly from close co-operation with the French in these matters; indeed, not only with France but with Belgium and the Netherlands. The degree of intelligence co-operation reflects the very close union we have with these countries.

[Baroness Smith of Newnham (LD)]

My Lords, in light of the comments by the French Interior Minister, Bernard Cazeneuve, that if Britain left the European Union after the referendum, there might be a risk that the Le Touquet accords—the very bilateral agreements that the Minister has just referred to—may not be maintained, is it not clear that leaving the European Union would give the United Kingdom less control over our borders, and that by alienating our nearest neighbours we would be helping nobody, asylum seekers least of all?

[Lord Keen of Elie]

I reiterate that the agreement we have with France is not predicated on our membership of the Union, as the noble Baroness herself acknowledged. Nevertheless, we cannot carry out the protection of our borders unilaterally; we depend on co-operation with our neighbours.

[Lord West of Spithead (Lab)]

My Lords, who exactly is responsible for the recognised surface picture in our territorial seas, both down the North Sea coast and in the channel? There has been talk of three hubs being set up and of the Border Force working with the Navy. There is talk of working with HMRC. There are many agencies. Who is actually responsible for knowing which ships are coming across, with migrants, terrorists or whatever, and making sure that they are properly intercepted? Which department has that responsibility?

[Lord Keen of Elie]

I am obliged to the noble Lord. The National Maritime Information Centre brings together information and intelligence provided by Border Force, the coastguard, the police, the Armed Forces, the Foreign and Commonwealth Office and the Marine Management Organisation, as well as by the National Crime Agency. It co-ordinates that intelligence for the benefit of all these agencies.

[Lord Berkeley (Lab)]

My Lords, is the Minister aware that an agreement between Britain and France on migrants involves both parties agreeing? Has he seen a report from Paris this morning which says that the French Government are so concerned about the UK leaving the European Union that they will abrogate all those agreements as quickly as possible and encourage many more migrants to set foot in England and claim asylum?

[Lord Keen of Elie]

One has to bear in mind that the French authorities are concerned about the movement of migrants through France, as well as those entering Britain. They therefore maintain an intelligence and border presence for these purposes. In these circumstances, it is difficult to believe that they would abandon these efforts simply because one country chose to leave the Union.

[Baroness Jowell (Lab)]

My Lords, I should like the Minister to update the House on the progress being made in processing the applications of those unaccompanied children still in the Calais camp, who may be entitled to asylum in this country under Dublin III, and who are among the most vulnerable to being preyed on by traffickers and most likely to undertake some of the most dangerous risks to get themselves to this country. What are the Government doing in discharging their obligation and the undertakings that they gave?

[Lord Keen of Elie]

The process in respect of these children involves an application to the French authorities in the first instance. Where it is disclosed that they have a right to come to the United Kingdom, that is then addressed. This Government are assisting in these matters and have personnel available at Calais to assist in these cases.