Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Rosser

3rd reading (Hansard): House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Rosser (Lab)]

My Lords, when the amendments moved on Report by the noble Baroness, Lady Hollins, were discussed, the Government said that they did not believe that they would achieve the outcome she was seeking since the relevant clause dealt with the interception of private telecommunications systems, such as a company’s internal email or telephone system. The fact that the noble Baroness has been permitted the amendment before us at Third Reading suggests that it is accepted that it seeks to address the point made by the Government on Report; namely, that the amendments that were carried on Report do not achieve the outcome the noble Baroness is seeking.

I understand the Government oppose this amendment. Perhaps they will argue that this amendment also does not achieve the objective the noble Baroness is seeking. As the noble Lord, Lord Low of Dalston, reminded us, on Report the Government said that they fully understand that many noble Lords, particularly those who have been victims of press abuse, are frustrated about what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report, albeit that the Government went on to say that they did not accept that that frustration was justified.

I am not able to comment personally on whether this latest amendment, which was tabled at a very late stage, achieves its purpose or not. But I do know that the Government do not seem to have been particularly helpful so far in seeking to assist with what wording would achieve the purpose sought by the noble Baroness, Lady Hollins, and the other noble Lords who are signatories to the amendment concerned, bearing in mind these were amendments which, on Report, had the support of the House.

On Report, the Government accepted the commencement provision amendments, while making it clear that that did not mean that they had accepted, or would be accepting, the earlier amendment related to Leveson which had been passed by the House. Despite that earlier stance, the Government do not appear to have been willing to adopt the same approach to getting the wording right, in their view, for the amendment carried in this House on Report.

We will support this amendment if it is put to a vote. Therefore, if it is carried, the Government will have another opportunity, albeit in the Commons, to put forward wording which achieves the objective sought by the noble Baroness, Lady Hollins, and indeed up to now by this House in relation to this amendment and amendments already carried on Leveson-related issues, before the Commons makes a decision on whether to accept or reject the amendments passed by this House or to put forward an alternative amendment of its own.

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

My Lords, we discussed this issue in some detail on Report. As we previously made clear, the cause of action, or tort, provided for in Clause 8 is intended to replicate the safeguard in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that system. This was a necessary safeguard to protect individuals, in very limited circumstances, where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.

A number of noble Lords have spoken about the objective of the amendment. With great respect, the fundamental difficulty is that it really has nothing to do with the purpose or purposes of Clause 8. It is not, as the noble Lord, Lord Paddick, suggested, simply a case of deleting “private” and substituting “public” , or of seeking to amend the proposed amendment at this stage or to improve it—it simply has no place in the clause. Clause 8 was not intended to regulate the press or to deal with awarding costs in circumstances where such a case is brought against a publisher. It simply has no application in this context. I quite understand the concerns about Section 40 that have been expressed, and the question of commencements is understood and is under consideration. But to amend Clause 8 in this way is to ignore the very purpose of this part of the Bill.

The Bill already provides for a criminal offence where an individual has unlawfully intercepted communications. An individual convicted of such a crime is liable, on conviction on indictment, to imprisonment for a term of up to two years, a fine or indeed both. So anyone carrying out phone hacking would face, under this Bill, a criminal conviction. That is a significant penalty and, in our view, the appropriate penalty for such an offence.

As we made clear in the previous debate, there are already avenues for individuals to pursue civil claims against those who carry out unlawful interception such as phone hacking. For example, cases have been brought on the grounds of misuse of private information. Although I agree with the noble Baroness that the outcome of Leveson and press regulation are very important issues, I maintain that this Bill, and in particular Clause 8, is not the appropriate place to deal with them. I therefore invite the noble Baroness to withdraw her amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I beg to move.

[Lord Rosser]

Let me take this opportunity to say that, while very differing views have been expressed in this House about the Bill, I believe it is accepted that it has benefited significantly from the attention it has been given through pre-legislative scrutiny and investigation, including by a Joint Committee, and during its passage through both Houses. We have now concluded our consideration of the Bill, and I want to take this opportunity to thank Ministers and the Bill team for the thought they have given to the issues that have been raised, including those left outstanding following the Bill’s passage through the Commons. Finally, I want to thank our own team, particularly Nicola Jayawickreme, for all the help and support they have given me and my noble friend Lady Hayter of Kentish Town.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Rosser

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[Lord Rosser (Lab)]

As the noble Lord, Lord Paddick, said, David Anderson QC commented in his report that neither the Bill nor the draft code of practice rules out the future use of the bulk acquisition power for internet connection records. Internet connection records are not currently acquired in bulk but existing legislation already permits the agencies to acquire such records in bulk, albeit there appears to be no present intention to do so.

The effect of this amendment would be to remove an existing legislative provision which could be needed in the future for bulk acquisition—bulk acquisition which David Anderson QC found had contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly to the saving of lives, and which had also been demonstrated to be crucial in a variety of fields. In addition, any such application in the future to obtain such data by the security and intelligence agencies would be covered by the relevant safeguards in the Bill, including in relation to necessity and proportionality in the interests of national security and the approval process.

This Bill is, among other things, about the appropriate balance between security and privacy. We clearly have a different view from that of some other noble Lords on where that appropriate balance lies. Our view is that, for the reasons I have sought to set out, we are unable to support this amendment and, if it is put to a vote, we shall oppose it.

[Lord Keen of Elie]

My Lords, this amendment would remove the ability for the intelligence agencies to acquire internet connection records in bulk, an issue we have already discussed in Committee and revisited on a number of occasions, as observed by my noble friend Lady Harding. At the time we debated this in Committee, I highlighted the point now made by the noble Lord, Lord Rosser, that this is not a new power introduced by the Bill. This is an existing power. It exists in legislation, albeit, while it is provided for, it is not at present utilised.

As I explained in Committee, it is vital in the current climate, when methods of electronic communication are changing and developing at an exponential rate, that we provide technology-neutral legislation—a point made by the noble Lord, Lord Rooker. We remain of the view that we would not wish to legislate against the possibility of internet connection records being acquired in bulk, should the agencies make a case—and they must make a case—which demonstrates that this might be necessary and proportionate in the interests of national security.

We strongly believe that it is right that the intelligence agencies have the power to acquire communications data in bulk, and David Anderson supported this in his bulk powers review. The noble Lords, Lord Carlile and Lord Campbell of Pittenweem, alluded to the observations made by David Anderson. I will refer to only one further quotation: he said that,

“bulk acquisition has contributed significantly to the disruption of terrorist operations and, though that disruption, almost certainly the saving of lives”.

The noble Lord, Lord Carlile, alluded to some of the examples that were given by David Anderson and worked through in his report.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Rosser

Report: 2nd sitting (Hansard - part two): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Rosser]

I appreciate that I may be speaking prematurely since the Government have not moved their amendment on the Technology Advisory Panel. On the basis that they are not about to stand up and withdraw it, I thank the Government for the amendment establishing a Technology Advisory Panel, which reflects the recommendation by David Anderson QC in his report on the bulk powers provisions in the Bill, a report that we had secured during the passage of the Bill in the Commons and a recommendation on which we had an amendment in Committee in this House.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Rosser, and will resist the temptation that he laid in my path. As he observed, the government amendments have been tabled to give effect to the recommendation of David Anderson’s bulk powers review.

The review demonstrated that the bulk powers are crucial. Mr Anderson’s report concludes that the powers,

“have a clear operational purpose”,

and,

“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”,

and that, where alternatives exist to their use,

“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or – crucially – slower”.

The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, combating child sexual exploitation and organised crime, and supporting military operations; and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.

Mr Anderson’s report included a single recommendation, which was:

“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—

that is, the Investigatory Powers Commissioner—

“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.

Following careful consideration of this recommendation, we agree with Mr Anderson’s assessment that those authorising, approving and overseeing the exercise of bulk powers must be alert to the impact of technological change on those powers’ utility and impact. These amendments therefore give effect to Mr Anderson’s recommendation in full.

The amendments provide that a Technology Advisory Panel must be established by the Investigatory Powers Commissioner and, in line with Mr Anderson’s recommendation, members of the panel would be appointed by, and clearly accountable to, the commissioner. They also provide that the role of the panel is to advise the Investigatory Powers Commissioner, the Secretary of State and Scottish Ministers on precisely those matters set out in David Anderson’s recommendation —namely, the impact of changing technology on the exercise of investigatory powers, and the availability and development of techniques to use such powers while minimising interference with privacy. The Investigatory Powers Commissioner would have the power to direct the panel to provide advice on any issue relevant to these matters.

While David Anderson’s review was in relation specifically to the bulk powers in the Bill, we agree with his view that there is no reason to restrict the scope of the Technology Advisory Panel just to those powers. Indeed, the panel giving advice in relation to the targeted powers could be just as valuable. As such, the amendments make clear that the panel’s role would extend to providing advice on all investigatory powers whose exercise is subject to review by the commissioner, which of course includes all the investigatory powers under the Bill.

To ensure that the panel would be able to undertake its role effectively, the amendments also make clear that its members would have the same right to access information as judicial commissioners. This means that any relevant person, such as any member of a public authority, must disclose or provide to a member of the panel all such documents and information as that member may require in order to carry out their functions.

We also agree with David Anderson that it should be mandatory for the Technology Advisory Panel to produce an annual report on the exercise of its functions. The amendments would therefore require that the panel make such a report to the Investigatory Powers Commissioner as soon as reasonably practicable at the end of each calendar year. At the same time as providing the report to the commissioner, a copy would also need to be sent to the Secretary of State and to Scottish Ministers where the report related to matters for which Scottish Ministers are responsible. To ensure sufficient transparency about the panel’s work, the amendments would require the Investigatory Powers Commissioner to include information about the work of the panel in their annual report.

I turn to the opposition amendments that have been tabled to the new clause establishing the Technology Advisory Panel. The first of these amendments would expand the role of the panel explicitly to provide advice to the commissioner on safeguards. While I appreciate what is intended by the amendment, I do not think it is necessary. The panel’s role is to advise on the impact of changing technology on the exercise of investigatory powers. Therefore, if technology changes in a way which means that existing safeguards are no longer appropriate or if new safeguards are needed to protect privacy, the panel can provide such advice to the commissioner and the Secretary of State. The panel must provide advice when asked to do so, but may also provide advice as it considers appropriate. While I appreciate the intent behind the amendment, I believe that the clause as drafted already provides for such advice to be given by the panel. Therefore, I do not believe that the noble Baroness’s amendment is necessary.

The second amendment to which she referred would expand the role of the panel to provide advice on an additional matter, namely,

“the impact of changing technology on the interpretation of the law and any amendments to legislation required to ensure the application of the provisions of this Act to changed technology”.

This amendment is neither necessary nor desirable. The role of the panel would, rightly, be squarely to provide advice on the impact of technology on the exercise of investigatory powers. This clearly defined role will ensure that members of the panel will be exactly what we need them to be: technical experts. David Anderson’s recommendation was designed to fill a gap. He was conscious that the Investigatory Powers Commissioner and judicial commissioners will be senior judicial figures. So, while they will be experts in the law and the interpretation of the law, they will not necessarily be experts in technology. What he felt was needed, and what the Government agree is needed, is technical experts to provide technical advice. In seeking to expand the panel’s remit to provide legal advice as well, I strongly fear we would end up with lawyers rather than technical experts. Indeed, David Anderson specifically warned that,

“the technological expertise of the TAP should not be unduly diluted”.

I pause to wonder whether one could ever dilute something with a lawyer, but I continue. That is exactly what this amendment would do, and that is why we firmly believe that it should be resisted.

This brings me to the amendment, which would permit the commissioner to make a report on his or her views about the legal operation of the Bill but would not place a duty on the commissioner to do so. I appreciate the sentiment behind the amendment, but I believe it is unnecessary. Clause 212 already gives the Investigatory Powers Commissioner a very wide remit to report on any matter relating to the functions of the judicial commissioners. That will, of course, permit the IPC, as he or she thinks fit, to report on the legal interpretation of the Bill. However, I hope that the IPC will not feel it necessary to do so, or at least to do so often. That is because the Bill serves to put beyond doubt the powers available to the state and the safeguards that apply to them. In the words of David Anderson, the Bill,

“restores the rule of law and sets an international benchmark for candour”,

but if the commissioner felt the need to report on the legal operation of the Bill, he could already do so.

Finally, Amendment 178C would require the panel to have regard to the same matters which a public authority must have regard to, as set out in Clause 2, which is referred to as the privacy clause. I appreciate the spirit of this amendment, but I believe it is unnecessary. Clause 2 is already clear that whenever exercising certain powers, such as to authorise warrants, all public authorities must have regard to the issues outlined in the privacy clause, but of course the Technology Advisory Panel will not be exercising such powers, so the amendment does not, in that context, make sense. If the intention is that when the panel gives advice it should bear in mind the various privacy considerations contained in Clause 2, then the amendment is also unnecessary, since the requirement, contained in government Amendment 178, that the panel advise on,

“the impact of changing technology on the exercise of investigatory powers”,

already includes advising on the ability to exercise those powers within the statutory framework and subject to all the safeguards contained in the privacy clause. Of course, the whole point of the Technology Advisory Panel, as specified in the government amendment, is to advise on techniques to “minimise interference with privacy”. So I really think that this amendment is unnecessary.

I invite the noble Baroness to withdraw the amendment.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Rosser

Report: 2nd sitting (Hansard - part one): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Rosser]

The effect of this amendment, as has been said, would be to leave out internet connection records from the definition of “relevant communications data” in Clause 84, which covers powers to require the retention of certain data. The Bill has had extensive pre-legislative scrutiny, including by a Joint Committee of both Houses, and we supported it at Third Reading in the Commons subject to, among other things, amendments being made which addressed the issue of access to internet connection records not being used in relation to minor crimes. Our amendment on the definition of “other relevant crime”, which raised the threshold from six months to 12 months, has been accepted by the Government. We will be opposing an amendment that now appears to weaken the effectiveness of the provisions relating to internet connection records, at least under Part 4 of the Bill, specifically Clause 84.

[Lord Keen of Elie]

My Lords, the amendment would prevent the Government being able to require telecommunications operators to retain internet connection records. The noble Lord, Lord Paddick, tabled exactly the same amendment in Committee, and he will not be surprised to know that the Government still cannot support such an amendment. As the noble Lord, Lord Harris of Haringey, and the noble Baroness, Lady Harding, observed, these provisions may not give rise to a perfect system of record recovery but it is preferable to a dark hall where criminals move unseen and with impunity.

The noble Lord, Lord Paddick, talks of observations from the Security Service and the Secret Intelligence Service, but be it noted that it is not for them that these records are so essential; it is for the police forces and the enforcement agencies in respect of crime. I have spoken at length to the National Crime Agency, which has underlined to me the critical nature of these records now that telecommunications data are so often routed through the internet, not by means of normal telephony.

Earlier today this House recognised the importance of the use of internet connection records, subject to strict safeguards, as noted by the noble Lord, Lord Rosser. I do not think this House will want to prevent internet connection records being retained with the result that they are not available for any form of criminal investigation. Indeed, we have just discussed the government amendment to require judicial approval before a data retention notice can be given, which, as I said at the time, puts in place a significant new safeguard before a telecommunications operator can be required to retain the data.

There has been considerable debate on this topic, not just today but as the Bill has progressed through Parliament. However, in relation to this amendment, I should perhaps reiterate why internet connection records are so essential for law enforcement. As communications increasingly take place via the internet, information that used to be routinely available to law enforcement from telephone-based communications data is increasingly unavailable—for example, the identity of an individual suspected of sharing indecent images, or people with whom a missing person was last in contact. Internet connection records are essential because they will ensure that the type of communications data that were previously available to law enforcement will remain available in future, not perfectly but generally. It will help to ensure that terrorists and criminals cannot evade detection simply because they choose to communicate online.

The noble Lord, Lord Paddick, observed that there may be applications or social media apps on a device that maintain a persistent connection to a service. That is true, but even in such cases the relevant ICR will signpost the service access by the device, enabling a public authority to make further inquiries with the service provider, which is identified through the ICR. ICRs will allow law enforcement to approach online service providers to acquire communications data where it is known that a specific device has accessed their service. So it is not the case that simply because you have open or permanent connections, the use of ICRs is rendered useless; that is simply not accepted.

The alternatives available to the security and intelligence services are not available to the police, and certainly cannot be adduced in a court of law. The police can acquire communications data only on a case-by-case basis where necessary and proportionate, and where they have made strong operational cases as to why they need to retain these records. Equally, the intelligence agencies may acquire data only for their own statutory purposes, which are far narrower than the criminal types investigated by the police. It is also the case, as I mentioned before, that intercept material from the agencies may not be used as evidence in court, a position that has been upheld by numerous independent inquiries over the years, most recently by a panel of the Privy Council in 2014.

Giving evidence to the Public Bill Committee, the noble Lord, Lord Reid, and Charles Clarke, previous Home Secretaries, were asked whether ICRs were a key part of updating legislation to the current world, and they both definitely agreed. Indeed, one could go further. The noble Lord, Lord Paddick, alluded to the observations of the Joint Committee on the draft Bill. Let us look at its conclusion:

“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.

The Government recognise the sensitive nature of internet connection records, which is exactly why we had our earlier debate concerning the safeguards that must surround their recovery. The point has already been made that those records will not give access to the content, it is the record of connection that will be recovered.

I appreciate that the noble Lord, Lord Paddick, still has concerns about internet connection records, and I fear that nothing I say will convince him otherwise, but I again reassure him that we have all the right safeguards in place. Data can be retained only when necessary and proportionate and following authorisation and approval by the Secretary of State and a judicial commissioner. We have mechanisms in place to ensure that data are held securely, including audit by the Information Commissioner. Once the data are retained, they can be accessed only on a case-by-case basis, and only when judged necessary and proportionate by a senior officer at a rank specified by Parliament who is independent of any investigation being carried out. Strong judicial oversight will be provided by the Investigatory Powers Commissioner and, thanks to the changes made by this House, internet connection records cannot be acquired for minor offences, an amendment we discussed earlier.

In summary, internet connection records are a vital power. As to their cost, I believe that the figure given at a previous stage was £174 million over a period of 10 years. That is a not inconsiderable sum, but a manageable figure in the context of what we face with police powers. Accordingly, I invite the noble Lord to withdraw the amendment.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Rosser

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Lord Rosser (Lab)]

As I understand the situation, the Independent Reviewer of Terrorism Legislation, David Anderson QC, was consulted by the Government on whether it would assist him in his role if he had the support of a privacy and civil liberties oversight board. The outcome was that the independent reviewer is now supported instead by the provision of specialist legal assistance, as David Anderson himself recommended in his 2014 annual report.

David Anderson announced the appointment of three specialist advisers, whom he had personally selected, earlier this year and to the best of my knowledge the independent reviewer has welcomed that approach. Given the measures in this Bill, including provision for the Investigatory Powers Commissioner and his or her role in protecting civil liberties, and the changes made as a result of recommendations of the different independent committees which looked at the Bill as originally worded—including a Joint Committee of both Houses—and the further changes and commitments made both during the Bill’s passage through the Commons, which led to us voting for it at Third Reading, and in this House, it is not clear what an additional board would positively contribute. We cannot support the amendment.

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

My Lords, it may appear that there is little I can add, but I have my brief.

Considerable praise has been expressed throughout the passage of this Bill for the work of David Anderson QC, whose report, A Question of Trust, provides the backdrop to this legislation and whose subsequent review of the operational case for bulk powers has informed our scrutiny of Parts 6 and 7. There can be no doubt about the importance of Mr Anderson’s office, that of the Independent Reviewer of Terrorism Legislation.

Following the passage of the Counter-Terrorism and Security Act 2015, which has been alluded to, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he himself recommended—as noted by the noble Lord, Lord Rosser.

--- Later in debate ---

[Lord Rosser]

I, too, have sympathy with many of the points made by the noble Baroness, Lady Jones. If there were to be a requirement for reasonable suspicion in addition to requiring decisions to be necessary and proportionate, because the two are not the same thing, one could envisage a situation—for example, in a kidnap case—where it could make life rather more difficult. In such a case, it might not be known whether it was a kidnap or simply a person who had gone missing.

[Lord Keen of Elie]

My Lords, as indicated by the noble Baroness, the amendments would provide that a targeted interception or equipment interference warrant could be issued in the interests of preventing or detecting serious crime only where there was a reasonable suspicion that a serious criminal offence had been or was likely to be committed.

The amendments are simply not necessary. I assure the House that for a warrant to be issued for the prevention or detection of serious crime, a sufficiently compelling case will always be required. A speculative warrant could never be approved, so these amendments address a concern that is fundamentally misplaced.

The Bill already provides strict and robust safeguards that ensure that a warrant may be issued only where it is necessary and proportionate. That is a well-established test. This decision must be approved by both the Secretary of State and a judicial commissioner. I pick up a point made by the noble Lords, Lord Paddick and Lord Rosser: in the case of a warrant for the prevention and detection of serious crime, the test of necessity and proportionality simply could not be met where there was not a reasonable suspicion that a serious crime had been or was likely to be committed. In these circumstances, I invite the noble Baroness to withdraw the amendment.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 19th July 2016 Lords Chamber

[Lord Rosser (Lab)]

We welcome the spirit of the Government’s amendments, which, as the noble and learned Lord said, seek to fulfil the commitment the Government made during the passage of the Bill in the Commons to introduce a clear and appropriate threshold for accessing internet connection records. The concern was that access should not be available in connection with non-serious crime. The threshold for serious crime appears workable and appropriate.

We welcome, too, the fact that specific offences such as stalking and harassment have been addressed and can lead to access to ICRs. However, we have continuing concerns around the definition of “relevant crime”, which we feel is too broad and could still lead to the use of ICRs in connection with crimes that would not be regarded as serious. Last April, the then Home Secretary told the shadow Home Secretary that restricting ICRs to serious crime would: hamper the ability of the police to investigate online stalking and harassment; disrupt police investigations of online grooming or the sending of sexual communications to a child; reduce the ability to investigate online fraud; hinder the ability to identify and disrupt the sale and distribution of illegal material online, including illegal weapons, counterfeit medicines or illegal drugs; and prevent the police from progressing investigations where there may be a threat to life, but where it is unclear whether a crime is involved—for example, locating a missing or suicidal child—because many of these activities would not meet the serious crime threshold.

We do not disagree with the intention set out in that communication from the Home Secretary to the shadow Home Secretary, but if the Government have a list of specific offences or types of offences which they feel fall below the serious crime threshold but should not be subject to a restriction on access to ICRs, perhaps that is a matter that needs further discussion about what should be included on the list or what should be covered. We wish to see the wording in the government amendment tightened further. We would want to work with the Government on this while the Bill is progressing through its stages in this House. I hope that the Minister, on behalf of the Government, will feel able to indicate that he is willing to have further discussions on this and the wording of the amendment in the light of our concerns about the apparent broad nature of the definition of “relevant crime”.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord. I welcome the suggestion that we are at least heading in the right direction with regard to these amendments. We would of course be open to further discussions on this topic so we can address more fully what is a relevant crime in this context. I will add that one has to bear in mind that these potentially intrusive orders will be made only where it is necessary and proportionate. That is the test that exists, but I welcome the opportunity for further discussion with noble Lords.

--- Later in debate ---

[Lord Rosser]

My Lords, I shall be very brief. As has been said, the provisions of this Bill have been subject to considerable scrutiny. The heart of Amendment 156A is about the balance between privacy, security and safety. Inevitably there will be disagreements, which have been highlighted in this debate, about where an appropriate and proper balance lies.

On Amendment 147A, I have virtually no knowledge about the Advocate-General’s opinion, to which reference has been made. However, if we have that opinion, we would like to hear at some stage whether the Government think that it would have implications for any of the provisions and procedures in the Bill, were that opinion subsequently adopted.

[Lord Keen of Elie]

My Lords, Amendment 156A seeks to prevent the retention of internet connection records. The Committee will not be surprised that the Government cannot support such an amendment. We have been absolutely clear about the need for internet connection records. We addressed that when publishing the operational case for these powers.

The right reverend Prelate the Bishop of Chester referred to a model of pre-legislative scrutiny. The noble Lord, Lord Carlile, referred to the most scrutinised Bill ever seen. My noble friend Lord King alluded to the three reports we have had, and the noble Lord, Lord Murphy, spoke about the Joint Committee that he had chaired which scrutinised these matters. Over and above that, we had the evidence given to the Public Bill Committee by, for example, the noble Lord, Lord Reid, and Charles Clarke. They were asked whether they thought that ICR were a key part of updating legislation for the current world, and both agreed definitively. I commend the contents of those three reports to the noble Lord, Lord Oates, and also commend to him the findings of the Joint Committee. He asked whether the UK was unique within the “Five Eyes” or indeed the world in seeking to develop these powers. It may well be that we are the forefront of developing them, and a good thing it be. I quote from the report by David Anderson QC:

“Comparing the UK’s legal regime with those of other countries is fraught with danger”.

I commend to the noble Lord, Lord Oates, what follows in that report because David Anderson develops those points and explains them. It is on the record, we have had it for a long time, we have considered it in the development of the Bill and the Joint Committee considered these matters. That is why the Bill is in its present condition.

The noble Lord, Lord Evans, observed that we have the ability to secure effective police investigations in areas where other countries have failed. I mentioned on a previous occasion the comparison between the results in the UK and Germany regarding the investigation and prosecution of cases involving paedophilia. I do not accept that, because we are ahead of others, somehow we are wrong.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 19th July 2016 Lords Chamber

[Lord Rosser]

We have some amendments in this group which, again, relate to the report from the Constitution Committee. Like the noble Baroness, Lady Hamwee, I acknowledge the amendments that the Government have tabled. They have certainly gone down the road that was indicated during the discussion on this matter in the Commons.

I simply want to ask the Minister whether the Government have given any consideration to going down the road suggested by the Constitution Committee, as opposed to that put forward in the Government’s amendments. I accept that there is not a great deal of difference between the two, as the Government’s amendments say that a person is not to be appointed unless they have been recommended by the Lord Chancellor and the Lord Chief Justice.

Finally, do the Government’s amendments also apply to the reappointment of commissioners and to dismissal? The recommendation in the Constitution Committee’s report related to appointments, reappointments and dismissal, but I am not clear whether the Government’s amendments would also apply in those three circumstances.

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

My Lords, Clause 203 provides for the Prime Minister to appoint an Investigatory Powers Commissioner and as many judicial commissioners as they see fit to undertake the duties set out in the Bill. The Investigatory Powers Commissioner, assisted by the judicial commissioners, will then undertake the work of ensuring that there is robust and comprehensive oversight of the use of all investigatory powers. If a judicial commissioner becomes unfit to perform the role, Clause 204 provides that they can be removed either by a resolution of both Houses of Parliament or by the Prime Minister acting alone in a very limited set of circumstances.

Many of the amendments to Clauses 203 and 204 seek to alter the relationship between the Prime Minister and the judicial commissioners to an unacceptable extent. These roles have a vital influence on crucial national security decisions and, as the person ultimately responsible for national security, it is only right that the Prime Minister should make these appointments.

It has been suggested that having the Prime Minister involved in the appointments will somehow weaken the independence of the positions. I refute that in the strongest terms. The principle of judicial independence is so deeply ingrained and is upheld by the judiciary to such an extent that suggesting it will be abandoned because the Prime Minister makes the formal appointments is simply unfounded. My noble and learned friend Lord Judge was clear in his evidence to the Joint Committee that having the Prime Minister make the appointments is a practical matter that will not affect the independence of the commissioner in any way. Some of the amendments put forward to Clause 203 would give responsibility for appointments to the Lord Chief Justice of England and Wales. We have difficulty accepting these amendments for two main reasons. First, it would be inappropriate for the Lord Chief Justice of England and Wales to be able to make appointments of judges from Scotland or indeed Northern Ireland, even if there were a requirement to consult the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland.

Secondly, the amendments do not provide a role for the Lord Chancellor and, given her overall responsibility for judicial appointments, it is necessary that the Lord Chancellor should be involved in the process. Instead of accepting these amendments, we propose Amendments 179, 181 and 182. Under these amendments, both the Lord Chancellor, who is ultimately responsible for appointing judges, and the heads of the judiciary, with their responsibility for the deployment of judges, will be able to recommend a suitable candidate for the role of Investigatory Powers Commissioner. Additionally, the Investigatory Powers Commissioner will be involved in recommending candidates for appointment as judicial commissioners.

This amendment significantly strengthens the role of the heads of the judiciary and the Lord Chancellor in appointments. It will mean that the Prime Minister can only appoint an individual who has been recommended and will help to ensure that the very best candidates are selected to perform these crucial roles. It will also ensure that the running of Her Majesty’s Courts & Tribunals Service is not unduly affected by these appointments.

The Lord Chancellor already has the power to recommend that Her Majesty increase, by Order in Council, the maximum number of judges of the High Court and Court of Appeal. Amendment 187 would place the Lord Chancellor under a duty to make such a recommendation if the Lord Chancellor considers it necessary in order for judges to be appointed as judicial commissioners without adversely impacting the operation of the courts. We do not consider that this is necessary. The Lord Chancellor will, by virtue of the amendments that we have proposed, be involved in the appointments process and already has the power to make such recommendations.

Clause 203(7) is entirely practical in its nature. It gives the Investigatory Powers Commissioner discretion to delegate his or her functions to another judicial commissioner. This is to ensure that the range of important functions the Bill will provide to the Investigatory Powers Commissioner can always be carried out—and at very short notice. It is appropriate that the Investigatory Powers Commissioner, who will be a senior member of the judiciary, is, as far as possible, given the freedom to operate in a way the commissioner thinks appropriate. That is why the clause offers discretion as to how functions should be delegated and to what extent.

If the Investigatory Powers Commissioner thought it appropriate to delegate their duties to a single judicial commissioner and create a de facto deputy, there is nothing to prevent them from doing so. Alternatively, they may think it appropriate to delegate certain duties to more than one judicial commissioner. This leaves the choice with the Investigatory Powers Commissioner, who we consider to be best placed to decide how to run their office. I hope that that provides some reassurance to noble Lords and I therefore invite them not to press their amendments.

In relation to government Amendment 190, I reconfirm that the Investigatory Powers Commissioner will have all the powers and access that the commissioner needs in order to carry out effective scrutiny. This is vital to the public’s confidence in the use of these powers and is central to the Bill. But it is also vital that the public servants who work to keep us safe are able to get on with their jobs and can do so safely. That is why the commissioner will be under certain duties, including a duty not to act in a way contrary to the public interest or to jeopardise the success of an operation.

But we do not think it is appropriate that those duties should apply to the judicial commissioners when they are exercising their judicial functions. Amendment 190 will ensure that this is the case. It makes changes to ensure that all of the decisions of a judicial commissioner following a refusal to approve an urgent warrant are caught. It also makes changes consequential on extending the double lock to national security and technical capability notices.

A number of the amendments proposed by noble Lords concern the means through which judicial commissioners may be removed from office. We are sympathetic to the concern behind these amendments. It is clear that a delicate balance needs to be struck. There needs to be some means to remove a commissioner, in the very unlikely event that they prove unfit to carry out the role. But the independence of the judicial commissioners demands that removal from office is treated with the utmost seriousness.

The Bill allows for the removal of commissioners in two ways. The first is by the Prime Minister in a very narrow set of circumstances, such as where the commissioner receives a sentence of imprisonment; and secondly, by the Prime Minister with the approval of both this House and the other place. We cannot accept amendments that would allow the Prime Minister to remove a commissioner on the grounds of inability, neglect of duty or misbehaviour—which are somewhat subjective terms—without Parliament acting as a check. I hope that the Government’s unwillingness to give the Prime Minister such unfettered powers demonstrates our commitment to striking the right balance in the appointment and dismissal procedures.

Conversely, I do not see the need to consult the judiciary and others concerned in the appointment of the commissioners before removing them from office. As I say, it will be possible to remove judicial commissioners from office only in very narrow circumstances or with the approval of both this House and the other place. I hope that noble Lords will agree that these are adequate safeguards to ensure that a commissioner cannot be removed from their post on the whim of the Prime Minister.

With respect to the question asked by the noble Lord, Lord Rosser, the government amendments will apply to reappointments but not to dismissal.

I hope that my response has reassured noble Lords and I invite the noble Baroness to withdraw her amendment.

Policing and Crime Bill

Debate between Lord Keen of Elie and Lord Rosser

Monday 18th July 2016 Lords Chamber

[Lord Keen of Elie]

I appreciate that, and I do not seek to belittle the noble Earl’s point. Clause 114 deals with defectively deactivated firearms—that is, firearms that have not been deactivated up to the standard of EU regulations—and deals with the prohibition on the sale of such firearms. No doubt, the question of involving EU regulations in that context is a matter that will have to be addressed in due course as we negotiate the various provisions with regard to Brexit.

The noble Lord, Lord Brooke, raised questions about powdered alcohol. First, he posed the question as to why it is treated differently to psychoactive substances. Essentially, it is because there is a distinct licensing regime with respect to alcohol. The potential difficulty is over whether alcohol licensing pursuant to the 2003 Act extends to powdered alcohol, because it refers in this context to liquor. So there is a doubt as to whether you are required to be licensed to sell powdered alcohol. It is to dispel that doubt and ensure that there is a licensing regime in place that those provisions are there. I hope that assists to some extent in explaining that matter.

The noble Lord, Lord Condon, referred among other things to the question of leadership skills. Indeed, it was a point raised by the noble Earl, Lord Attlee, as well. There was a question of whether enough was being done to ensure that we had these leadership skills in place, particularly for the senior ranks of the police force. In the Leadership Review published in June 2015, the College of Policing pointed to the need to create more flexibility in police careers, and we are supporting the college in examining options to encourage greater movement in this context. We would agree with the noble Lord that it is vital that all opportunities in policing should be open to the widest pool of capable candidates, and that PCCs in particular should be encouraged to look beyond their own police authority in that context. No doubt, that point will be brought home in due course.

The noble Baroness, Lady Hamwee, referred to the question of confusion between the role of police and immigration officials. Again, I hope that I addressed that in my earlier comments.

The noble Lord, Lord Tunnicliffe, in taking us through each area of the Bill, raised a number of issues that have been touched on already by the noble Lord, Lord Rosser. He finished by referring to the question of full-cost recovery and firearms, and I am not clear as to what the position is on that but I shall write to him on it if he is pleased to receive a letter. When I say that I shall write, I mean that the noble Baroness, Lady Williams, will be pleased to write to him on that matter in due course—thereby committing my noble friend to that which she had not intended when she first entered the Chamber this evening.

I appreciate that a number of additional points were raised—

[Lord Rosser (Lab)]

Could the noble and learned Lord clarify one point? When he was talking about volunteers, he said that it would be a matter for the chief officer as to how they would be used or deployed. Does that mean that a police and crime commissioner has no say over the extent to which volunteers will be used in his or her police force, or the kind of duties that they will undertake? If that is the case, and if a police and crime commissioner has been elected on a platform of saying in their electoral address that volunteers are being used too extensively or not extensively enough, that is meaningless because the PCC has no say—it is entirely a matter for the chief officer.

[Lord Keen of Elie]

No, it would not be a binary or a black-and-white issue. If it was an operational matter—that is, deployment—it would be for the chief officer of police. But in the wider issues that arise with regard to whether you deploy volunteers within a force the PCC would, of course, take an interest. When it comes down to operational matters such as deployment, and a particular deployment, clearly it would be a matter for the chief officer of police. I hope that that assists the noble Lord.

I am conscious that I have not been able to respond to all the points raised in the debate, and we will seek to write to noble Lords who have raised other issues. The Bill will enhance the efficiency and effectiveness of the police and fire and rescue services. It will strengthen democratic accountability. We believe that it will build public confidence and ensure that the right balance is struck between police powers and the rights of individuals. While we will undoubtedly continue to debate the detailed proposals in the Bill, I am sure that the whole House will support those outcomes. On that basis, I commend the Bill to the House.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Rosser

Wednesday 13th July 2016 Lords Chamber

[Lord Rosser (Lab)]

Perhaps I may make a brief comment about Amendments 85A and 85B in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. We, too, want to hear the Government’s response to the views expressed by the Delegated Powers and Regulatory Reform Committee. I will not go over those views, since the noble Lord, Lord Paddick, has already set them out. In brief, the first is the fact that paragraph 33 of Schedule 8 includes a power to amend the provisions of Schedule 8 itself. The committee said that it needed “a very convincing explanation” of why that was necessary; otherwise, it would find the power inappropriate. The other, as the noble Lord said, concerns the fact that the powers conferred by paragraph 33 of Schedule 8 include a power to amend future enactments whenever passed or made. The committee commented that it felt that such powers were inappropriate. In view of the comments made by the committee, we, like the noble Lord, wish to hear the Government’s response to the committee’s points.

[Lord Keen of Elie]

I will begin with that last point on Amendments 85A and 85B. The Government believe that the power is necessary for the reasons outlined by the noble Lord, Lord Paddick, but we are conscious of the terms of the report made by the Delegated Powers Committee. We are still reflecting on those comments and intend to respond in due course. I hope that that will give some satisfaction to the noble Lord. The matter is still under consideration and no final view has been arrived at.

I now turn back to the matter raised by the noble Baroness, Lady Jones. By way of background, your Lordships will be aware that, last November, the Prime Minister announced additional protections for the communications of Members of Parliament and Members of other legislatures, including the Scottish Parliament and the assemblies. Clause 26 sets out the requirement for the Prime Minister to approve the Secretary of State’s decision to issue a warrant to acquire communications sent by a Member of Parliament or intended for a Member of Parliament. Again, I use the term “Member of Parliament” to embrace Members of the other legislative assemblies referred to by the noble Lord, Lord Murphy.

Amendment 43A would remove the role of the Secretary of State from the warrant authorisation process where the Wilson doctrine is engaged—I will come on to the Wilson doctrine in a moment—which would in fact reduce the safeguards for parliamentarians. In line with the commitment given by the Prime Minister last November, the Bill provides a triple lock where warrants concern a parliamentarian’s communications: they must be authorised by the Secretary of State, agreed by the Prime Minister and authorised by a judicial commissioner.

I will not rehearse again the arguments for the double lock at this point, but it is important to remember that it was endorsed by the Joint Committee of Parliament that scrutinised the draft Bill and that, following amendments made in the other place, it enjoyed cross-party support. The triple lock for parliamentarians simply adds an extra layer of checks to this important process. It is difficult to see what possible benefit would accrue from removing one of those checks—that is, the Secretary of State—which would also serve to undermine the accountability of the Secretary of State to Parliament for the activities of the agencies that the Secretary of State oversees. In view of that, I respectfully invite the noble Baroness to withdraw her amendment.

Amendment 45 would provide a role for the First Minister of Scotland in approving warrants to acquire communications sent by or intended for a Member of the Scottish Parliament. However, we do not consider that it would be appropriate for the First Minister to have a role in approving a decision taken by the Secretary of State on what is a reserved matter.

As to the operation of serious crime warrants, which the noble Lord, Lord Paddick, might have had in mind, particularly in Scotland, it is of course for Scottish Ministers to determine what additional safeguards they wish to provide in relation to parliamentarians. That is a devolved matter within their competence, and the same may in due course apply in the context of the Welsh Assembly—or, indeed, any other assembly that is set up.

The effect of Amendment 44 would be to provide for the Prime Minister to inform the relevant legislature that such a warrant or warrants has or have been issued—a point raised by the noble Lord, Lord Beith. Noble Lords will be aware that the Wilson doctrine, as it is termed, followed from a statement made by the then Prime Minister that, as a general policy, there would be no tapping of MPs’ telephones—but that, if there was a need to make a change to this general policy, the Prime Minister would, at a time of his choosing and when the national security situation allowed, make a Statement in the House. That is what is encompassed within the Wilson doctrine.

In a Written Ministerial Statement last November, the Prime Minister again confirmed that the Wilson doctrine continued to apply. He went on to explain the Government’s position on the Wilson doctrine and how it would apply in the 21st century. In his Statement, the Prime Minister was clear that the Wilson doctrine does not place an absolute bar on the interception of parliamentarians’ communications and confirmed that he would be consulted should there ever be a requirement to target a parliamentarian under a warrant issued by a Secretary of State. As has been noted, particularly as a result of the changes in the other place, the Bill now goes further by providing that the Prime Minister must provide explicit authorisation for a warrant to target a parliamentarian’s communications.

I understand that every Administration since 1966 has confirmed that the Wilson doctrine remains in place. This Government have done so on numerous occasions in Parliament. The doctrine includes the Prime Minister’s commitment to inform the relevant legislature, at a time of his choosing and when national security allows, should there ever be a change to the general policy. There has been cross-party agreement on this issue for more than 50 years. In view of the Prime Minister’s statement, and the stringent safeguards in the Bill, which go further in statute than was previously provided for, no further statutory provision is considered necessary.

--- Later in debate ---

[Lord Rosser]

I will make just one very brief point. These amendments on modifications relate to an area where the system could—and I use the word “could”, not “will” or “would”—be abused, in the sense of a significant modification being made to a warrant perhaps not having to go through the kind of process one would have to go through with the initial warrant. I hope the Minister might respond in a rather wider context than the specifics of the amendments and set out why the Government believe, as far as the Bill is concerned, that the modification process cannot be used to achieve a major change in a warrant without having to go through the proper procedures of getting judicial authorisation. To some extent, I think that what lies at the heart of this issue on modifications is wanting an assurance, which can be given really only by spelling out the process that would prevent the system being abused in this way.

[Lord Keen of Elie]

Perhaps I might begin with that last point. The whole structure of the Bill involves checks and balances. At the end of the day the Investigatory Powers Commissioner will carry out auditing and oversight functions to ensure that the requirements in respect of warrants and their modification have been adhered to. Therefore, it is a question of looking at the overall structure and functioning of the warranty system under the Bill. It is not spelled out in any one particular clause. I just make that observation at this stage.

Amendments 53, 55, 56 and 57 seek to provide that all modifications to a warrant must be authorised by a judicial commissioner. In our view, that is neither necessary nor appropriate. Clause 32 creates a carefully constructed regime, differentiating between major modifications and minor modifications. A major modification is one which adds or varies the name or description of a person, organisation or set of premises to which the warrant relates. A modification which adds or varies a factor identifying the communications described in the warrant will be a minor modification; for example, a minor modification might be adding a new telephone number for a known target. In addition, a modification that removes something from a warrant, and so reduces the conduct authorised by it, is a minor modification. The Bill makes this sensible distinction between major and minor modifications. In neither case is the judicial commissioner required to authorise the modification because the requirement to modify warrants to keep them up to date is first and foremost a safeguard.

I will explain how major modifications will operate under the legislation. The Bill provides for major modifications to be made only to so-called thematic targeted warrants. Current statute, such as the Regulation of Investigatory Powers Act 2000, allows for the issue of such warrants. They may be granted against, for example, the members of a kidnap gang. Thematic targeted warrants are invaluable in complex or fast-moving investigations. The Bill serves to put them on a clearer footing and to strengthen the safeguards that apply to them.

These warrants cannot be open-ended. Their scope must be sufficiently defined for the Secretary of State to be able meaningfully to assess whether the action is necessary and proportionate—the relevant statutory test. The Bill introduces a new safeguard, requiring the warrant to be modified to include names or descriptions of the subjects of the warrant, as far as it is reasonably practicable to do so, as the investigation progresses. This will assist the Secretary of State and the judicial commissioner in overseeing the warrant. There would be no benefit in having a commissioner authorise a modification that is being made in the first place only to inform his own oversight of the warrant. It would introduce unnecessary bureaucracy and the Bill already makes it clear that major modifications that engage the Wilson doctrine or legal privilege will be subject to the full double lock.

In our view, providing a role for the judicial commissioner in authorising a minor modification is even more superfluous. A minor modification caters for those circumstances where the subject of a warrant changes his phone or starts using a different email address. Those under investigation regularly change their phones or use different communications services in a bid to evade detection. The speed and volume of modifications of this nature are such that a role for the judicial commissioner in authorising the modification would cause the operational agility of the system to slow almost to a halt. This would inevitably have an impact on the ability of our law enforcement and security and intelligence agencies to perform their core function of protecting the public.

Clause 33 provides clear definitions of what constitutes a senior position in a public authority—that is, the authority that can deal with modifications—and an example is someone at the level of brigadier in the Ministry of Defence. We believe it is entirely appropriate that a person holding such a position is able to make a minor modification; for example, to determine that a new means of communication, such as a telephone number, being used by the person under investigation should be added to the warrant. Of course, we recognise the importance of ensuring the process for making modifications is as rigorous as it can be. That is why the Bill was amended in the other place to apply the necessity and proportionality test to minor modifications, as well as major modifications. Accordingly, I invite the noble Baroness to withdraw Amendment 53.

Amendment 54 would limit the circumstances in which a minor modification may be made to an interception warrant. It would have the effect that the only modifications that could be considered minor would be ones that either remove something from a warrant or correct an error in the description of a factor. We suggest that the amendment is unnecessary and would undermine the effective operation of the modification process. It would mean, for example, that where the subject of a warrant bought a new mobile phone, simply adding the mobile phone number to the warrant would be a major modification. The Bill would then require that this modification be made by the Secretary of State, or a senior official acting on their behalf, and notified to a judicial commissioner, even though the Secretary of State has already made the decision that it is necessary and proportionate for the communications of the individual to be intercepted, and the judicial commissioner has already approved that decision.

We recognise the importance of ensuring that the process for making modifications is rigorous. That is why we have amended the Bill following consideration in the other place such that there must be a consideration of necessity and proportionality for minor modifications, not just major modifications, as I mentioned before. We amended the Bill to ensure that the judicial commissioner is notified of a major modification to a warrant, as well as the Secretary of State, so that they have an ongoing visibility as to the extent of the activity authorised by the warrant. In conclusion, the process for making minor modifications is already sufficiently stringent, the amendment is unnecessary, and it would undermine the efficient operation of the warranty and modifications process. I invite the noble Baroness not to move Amendment 54.

Amendment 60 relates to where a major modification is being made when the protections for the communications of a parliamentarian or items subject to legal professional privilege apply. The amendment seeks to provide that, even where it is not reasonably practicable for the Secretary of State to sign the modification instrument, the instrument may be signed by a senior official only if it is being made urgently. This amendment is unnecessary and is, I believe, based on a misunderstanding of what Clause 34 provides for.

Clause 34 enables an instrument making a major modification where Sections 26 and 27 apply—in relation to parliamentarians and items subject to LPP—to be signed by a senior official where it is not reasonably practicable for the Secretary of State to sign it; for example, when the Secretary of State is out of the country, working in their constituency or otherwise unavailable. But the modification must still be personally and expressly authorised by the Secretary of State before the senior official can sign the instrument. The senior official is signing on behalf of and to acknowledge the Secretary of State’s authorisation. That is why we suggest that Amendment 60 may be unnecessary.

It may be appreciated that there will be instances when the Secretary of State is simply not physically able to sign a modification instrument. The purpose of Clauses 34(8) and (9) is to make explicit provision for this and to make it clear that a modification made in such circumstances—where the Secretary of State has approved but is not available—is not an urgent modification. That underlines the point I was seeking to make earlier, that there will always have been authorisation by the Secretary of State. Against that background, I invite the noble Baroness not to move Amendment 60.

Orgreave: Inquiry

Debate between Lord Keen of Elie and Lord Rosser

Wednesday 13th July 2016 Lords Chamber

[Lord Morgan (Lab)]

My Lords—

[Lord Rosser (Lab)]

My Lords, could the Minister just confirm that media reports have revealed the previously redacted sections of the Independent Police Complaints Commission report from June of last year, which exposed striking similarities between the personnel and alleged practices of South Yorkshire Police at Orgreave and at Hillsborough? Could he also confirm that in May the interim chief constable of South Yorkshire Police said:

“The Hillsborough Inquests have brought into sharp focus the need to confront the past. I would therefore welcome an independent assessment of Orgreave, accepting that the way in which this is delivered is a matter for the Home Secretary”?

Could the Minister also confirm that in a letter to the Home Secretary last month, several MPs called for a public inquiry and said that,

“trust will never truly be restored until we find out the entire truth about Orgreave … and the wider policing of the miners’ strike”,

including the allegations of police mistreatment of striking miners? We support the call for an inquiry, the case for which is now overwhelming. Why, as the noble Lord, Lord Balfe, asked, is it taking so long for the Government to come to the same conclusion?

[Lord Keen of Elie]

It is not a case of the Government delaying coming to a conclusion. As I indicated in an earlier answer, the IPCC has specifically pointed out that a decision on an inquiry at this stage could cross over into further investigations into potential criminal prosecutions. With regard to the disclosure of the unredacted report by a newspaper on 4 May 2016, the entire unredacted report was not disclosed. However, that which was disclosed did show a number of senior officers acting in common in regard to Orgreave and Hillsborough; that is correct. As regards the observations that have been made by the temporary chief constable and the MPs, I agree that those observations were made.

Syrian Refugees

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 12th July 2016 Lords Chamber

[Lord Keen of Elie]

At the present time, we are still in negotiations with the Commissioner for Refugees and local authorities in this country to determine the transfer of these children. It is anticipated that the first transfers will take place before the end of the year.

[Lord Rosser (Lab)]

Why are the negotiations on unaccompanied child refugees taking as long as they are? I ask that because the Observer said, on Sunday, that not a single unaccompanied child refugee has been brought into the UK from continental Europe, or even been identified by the British Government, since Mr Cameron promised two months ago that vulnerable minors would be offered sanctuary. The same article said that the Government are struggling to encourage local councils to accept more child refugees. Although they have increased the money they are offering to support child refugees, the funding is guaranteed for only a year. Is that true?

[Lord Keen of Elie]

On the question of funding, the Government provide funding for the first year directly and fund indirectly thereafter. On the question of bringing children here, it is not the case that we can go out to Europe and kidnap the children. We have to negotiate with the authorities there, with the Commissioner for Refugees and with the local authorities in this country to ensure a sensible and civilised transfer of these children.

Hate Crime

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 5th July 2016 Lords Chamber

[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.

Euro 2016: Fan Violence

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 14th June 2016 Lords Chamber

[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.

Immigration

Debate between Lord Keen of Elie and Lord Rosser

Wednesday 8th June 2016 Lords Chamber

[Lord Keen of Elie]

The pressure of economic migration has been driven in part by the success of our economy, making us a goal for so many migrants who are on the continent already. With regard to when we hope to achieve sustainable levels, it is our ambition to achieve sustainable levels of migration during this Parliament. There may of course be two routes to that goal, depending on the outcome of 23 June.

[Lord Rosser (Lab)]

There are a number of points that can be made about the immigration figures at this crucial time: the reality that a very significant percentage of the figure does not relate to people coming from within the EU; that the number arriving includes many tens of thousands who are British passport holders; that the figure includes significant numbers of students; that the vast majority of those who come from the EU are coming here to take up jobs; and that without them our economy and public services would be in even more difficulty. Can the Minister say when the Home Secretary herself is going to adopt a much higher profile, both in challenging the distortions currently being presented about immigration and in emphasising her support for remaining in the EU, when the Home Secretary, more than anyone else, will be guaranteed media coverage for what she says on immigration?

[Lord Keen of Elie]

The Home Secretary and her Ministers have been consistent in considering and addressing the issue of migration into this country. With regard to the figures mentioned by the noble Lord, I concur that the extent of net migration is greater from outside the EEA or European Union than from within, even today. With regard to those coming from the European Union, there is no doubt that more than 70% already have a job waiting for them in this country. We are taking steps to control migration and the Home Secretary is spearheading those initiatives.

Police: Armed Officers

Debate between Lord Keen of Elie and Lord Rosser

Wednesday 8th June 2016 Lords Chamber

[Lord Keen of Elie]

Clearly, this Government have been committed to the development of community relations. The use of firearms is one aspect in that context.

[Lord Rosser (Lab)]

The noble and learned Lord mentioned £143 million. How much of that is being allocated for the additional firearms officers? I think that a figure of 1,500 of them has previously been mentioned by the Government. What will be the full-year costs of training, equipping and paying the salaries and employers’ costs of 1,500 additional firearms officers? There have been suggestions that the amount of money mentioned by the Government would work out at about £22,500 per additional officer. That seems rather low. Can he guarantee that none of these additional costs will have to be financed out of existing police budgets?

[Lord Keen of Elie]

The sum of £143 million, which will be provided during the course of the spending review, is intended to provide a national uplift of about 1,000 additional armed police—not 1,500—and provide 40 more police armed response vehicles. I cannot give the precise figures that the noble Lord just asked me for, but I undertake to write if those figures are available.

Immigration: Detention of Pregnant Women

Debate between Lord Keen of Elie and Lord Rosser

Wednesday 25th May 2016 Lords Chamber

[Lord Keen of Elie]

It is intended that even before a pregnant woman is detained, her welfare will be taken into consideration. Consideration of her welfare will include the question of whether adequate facilities are available to that woman if she is detained. In the event of detention in an immigration centre such as Yarl’s Wood, there are adequate facilities to deal with pregnant women.

[Lord Rosser (Lab)]

On 26 April, the noble and learned Lord told the House that on that day there was one pregnant woman in the immigration detention system. He also said that further guidance on the question of vulnerable persons, including pregnant women, would be produced in May and laid before Parliament in order,

“that that position can be maintained”.—[Official Report, 26/4/16; col. 1095.]

Can the Minister tell us, first, how many pregnant women are in immigration detention today, and, secondly, what the highest number of pregnant women who have been in immigration detention has been on any one day since 26 April, when he said there was just one? Thirdly, what is the position with the further guidance being produced this month?

[Lord Keen of Elie]

With respect to the present position, as of today no women with confirmed pregnancies are being detained under Immigration Act powers in an immigration detention centre or residential short-term holding facility. As for the statistics for the period since 26 April, I am not in a position to give a number, but I undertake to write to the noble Lord providing such figure as is available from the present data, which generally speaking are management data. On the matter of pregnant women and regulations, in accordance with the regulations made this week, the Act’s provisions on pregnant women and adults at risk will come into force on 12 July. The publication of guidance on the matter is in the course of final preparation and will be made available as soon as possible.

Domestic Abuse: Rural Communities

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 24th May 2016 Lords Chamber

[Lord Keen of Elie]

There is no doubt that the problems faced, particularly in rural areas, could be addressed earlier. Indeed, our nationally acclaimed campaign, This is Abuse, has had an impact. We have invested a further £3.8 million in a new campaign, Disrespect NoBody, which we hope will build awareness of these issues.

[Lord Rosser (Lab)]

This is also an issue for police and crime commissioners to address in their respective areas, since through the police budget, for which commissioners are responsible, they can determine the resources, finances, staff and training, and the priority that will be given to and by their police forces to address domestic abuse. The police and crime commissioners can then hold their chief constables to account, and then be held to account themselves, if those resources are not effectively and appropriately used for the purpose for which they, as commissioners, have allocated them. Can the Minister confirm that that statement—of the key and powerful accountable role and responsibility of police and crime commissioners in addressing domestic abuse and violence in their respective areas—is a correct statement of the position?

[Lord Keen of Elie]

The position of the Government is that police and crime commissioners will take a leading role in co-ordinating the response to issues of domestic abuse. Indeed, this will be done in parallel to the national statement of expectations, which is a blueprint for local areas and local partnerships, at the head of which will be our successful commissioners.

Migration: Middle East and North Africa

Debate between Lord Keen of Elie and Lord Rosser

Thursday 12th May 2016 Lords Chamber

[Lord Keen of Elie]

We would certainly not want to be drawn into agreement with authoritarian regimes in that part of Africa. However, it is necessary, as I said, to address these problems at source.

[Lord Rosser (Lab)]

My Lords, does the Government not accept that it is wars, repression and instability that primarily lead to the mass movement of people? If those seeking to come to Europe from the Middle East and north Africa are simply economic migrants, why is it that after every outbreak of violence and repression we get a new wave of people from the area that has just had that outbreak?

[Lord Keen of Elie]

I must say that listening to Labour opine on the matter of immigration and immigration control is rather like listening to an arsonist on the subject of fire prevention.

Immigration Bill

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 10th May 2016 Lords Chamber

[Lord Rosser]

Perhaps I could add to the point just made and express the hope that the noble and learned Lord will not only respond to questions raised in this short debate in this House but be doubly determined to do so. I find it extraordinary that when our amendments were discussed in the Commons last night, although they have the not surprising procedure that a Minister opens the debate, there was no reply by a Minister at the end of the debate. So all the legitimate questions raised in that debate after the Minister had finished speaking were not answered at all by the Government. I know very little about House of Commons procedures —that is quite obvious—but it is certainly a fairly remarkable procedure to have a debate where questions are asked of the Government but there is no Minister replying at the end. I hope that that is a defect that the noble and learned Lord will be able to rectify when he replies to this debate.

We accept that the Government have moved on this issue to a position of not allowing the detention of pregnant women beyond 72 hours—or up to a week with the Secretary of State’s approval. This House of course wanted the Government to go further and provide additional safeguards, which were reflected in the amendments sent to the Commons. In the Commons last night, the Minister said that the Government had tabled amendments that made it clear that,

“pregnant women will be detained for the purpose of removal only if they are shortly to be removed from the UK or if there are exceptional circumstances that justify the detention”.—[Official Report, Commons, 9/5/16; col. 486.]

As has been said, the Minister went on to say that the guidance will also make it clear that the guidance would also make it clear that the power to detain should be used only in very exceptional circumstances. Why does the government amendment passed last night in the Commons refer to “exceptional circumstances” and not to “very exceptional circumstances”, which is and will continue to be used in the guidance?

What in the Government’s view is the difference in this context between “exceptional circumstances” and “very exceptional circumstances”, since it is they who have decided not to use the same wording in the Bill as is and will continue to be used in the guidelines? Through her amendment, my noble friend Lady Lister of Burtersett seeks a credible and reassuring answer to that question, and I hope that the Government can provide it.

[Lord Keen of Elie]

My Lords, I will begin by answering the question just posed by the noble Lord, Lord Rosser. The provision does refer to “exceptional circumstances”. The guidance as it exists talks of only “very exceptional circumstances” applying for the detention of pregnant women, and that will continue to be the policy that is applied in the context of the provision. I reiterate what was said in the other place last night: it is only in very exceptional circumstances that it will be considered appropriate for this provision on detention to be employed.

Immigration: Public Services

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 10th May 2016 Lords Chamber

[Lord Keen of Elie]

I believe that all Members of this House recognise the importance of a controlled migration system that brings us the best and is the best for this country. Only by means of a controlled migration system can we have an effective, workable society that is integrated and settled.

[Lord Rosser (Lab)]

Today, we have had the opportunity to hear from the authentic voice of the Conservative Party—from behind the Minister.

The previous Labour Government put in place a migration impacts fund. Local authorities and health trusts, for example, could then apply for a share of the funding to support efforts to reduce the impact of migration on public services. It was certainly not a panacea to solve all problems, but it did help to raise new funding to support infrastructure. However, the fund was scrapped by the coalition Government within a few months, and little was then done to ensure that support was still given where it was needed.

We have also said that EU funding should be made available to areas impacted by rapid migration to help with public services such as schools and GP services. Are the Government supporting, or will they support, that step?

Investor Visas: Money Laundering

Debate between Lord Keen of Elie and Lord Rosser

Monday 9th May 2016 Lords Chamber

[Lord Keen of Elie]

At the present time, I am not aware that any tier 1 visas have been revoked. Of course, tier 1 visas lead on to an application for indefinite leave to remain. When that application is made, one issue that is addressed is any suggestion of criminality.

[Lord Rosser (Lab)]

My Lords, as I understand it, according to the ONS, 76 fewer grants in the tier 1 investor category, which is the category for the really wealthy, were made in 2015, following changes introduced in November 2014, including the introduction of money laundering checks. In October 2015, Transparency International, to which the noble and learned Lord referred, said that,

“it is reasonable to infer that a proportion of money invested into the UK by Russian and Chinese Tier 1 investors is linked to crimes of corruption”.

Do the Government agree with that statement with respect to the situation prior to 2015 and, if they do not, why do they think that there has been such a significant reduction in the number of tier 1 investor grants made in 2015 compared with previous years?

[Lord Keen of Elie]

With respect, Transparency International’s report was looked at and considered by this Government. However, it referred to a period prior to April 2015 of “blind faith”. There was no such blind faith. As I indicated, when an overseas investor made a qualifying investment, he made it through a regulated authority and was therefore checked. As for the numbers, it will be a matter of notice that the sum required for investment has been doubled from £1 million to £2 million. Over and above that, the noble Lord will bear in mind the relevance of the exchange rate over the relevant period, as well. The rouble went from 50 roubles to the pound to 100 roubles to the pound, with the result that the required investment from someone in Russia is now 200 million roubles.

Banks: Fraud

Debate between Lord Keen of Elie and Lord Rosser

Thursday 5th May 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Countess. In addition to these initiatives, we also see that telephone companies are taking steps to cut down the time in which a phone line can remain open when a bank telephones a customer, because there are circumstances in which fraudsters will attempt to use that open time to perpetrate a fraud.

[Lord Rosser (Lab)]

I am not sure that the Government’s response reflects the severity of the situation. After all, in 2015, financial fraud losses across payment cards, remote banking and cheques totalled, I think, some £755 million—an increase of 26% compared with the previous year. The ONS estimates that there have been 5.1 million incidents of online fraud in the last year. Why have the Government not even started, with the banking industry, to get a grip on this booming area of crime, which is adversely affecting so many people? If the noble and learned Lord believes the Government are taking action, when do the Government expect to see a downturn in such fraud?

[Lord Keen of Elie]

I am obliged to the noble Lord. In 2015, 70% of fraud was stopped—70%. As regards the numbers, we have seen an increase in reported banking fraud, simply because this Government have instituted far better systems for identifying fraud and breaches of cybersecurity. With respect, it is not going up. The noble Lord observed that there was an increase in card fraud, but that is not the case. In fact, fraud in respect of credit cards reduced by 4% in the last reported years. Wider reporting of fraud is, as I say, a consequence of our having instituted far better systems for identifying breaches of cybersecurity. I simply remind the noble Lord that it is more than just the Joint Fraud Taskforce dealing with this. We have the national cybersecurity programme, a five-year strategy under which £90 million has already been expended on this; the National Cyber Security Centre; the Cyber Streetwise campaign for online security; Project Bloom for the task force on pension fraud; and the Insurance Fraud Taskforce. Indeed, the Chancellor has committed £1.9 billion to spend on cybersecurity.

Licensing Act 2003 (Her Majesty The Queen’s Birthday Licensing Hours) Order 2016

Debate between Lord Keen of Elie and Lord Rosser

Thursday 5th May 2016 Lords Chamber

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

My Lords, the order makes provision for the relaxation of licensing hours in England and Wales for the weekend of Her Majesty the Queen’s official birthday celebrations in June.

Section 172 of the Licensing Act 2003 allows the Secretary of State to make a licensing hours order to allow licensed premises to open for specified, extended hours on occasions of exceptional international, national or local significance. Licensing hours have previously been extended for the Royal Wedding in 2011 and the Diamond Jubilee in 2012, as well as for the World Cup in 2014.

As noble Lords will be aware, this year Her Majesty the Queen is celebrating her 90th birthday. The Government consider this a nationally significant event, and many people will wish to celebrate the occasion. The Government are proposing to allow premises to remain open later on the weekend of Her Majesty’s official birthday in June. The order will allow licensed premises to extend their opening hours on Friday 10 and Saturday 11 June until 1 am on Saturday 11 and Sunday 12 June respectively. It will apply to premises’ licences and club premises’ certificates in England and Wales which license the sale of alcohol for consumption on the premises. These premises will be allowed to remain open without having to notify the licensing authority and police via a temporary event notice, as would usually be the case. Premises that sell alcohol for consumption off the premises, such as off-licences and supermarkets, are not covered by the order.

The Licensing Act 2003 requires the Secretary of State to consult persons she considers appropriate before making a licensing hours order. The Home Office conducted a consultation with key partners, including representatives of licensing authorities, the police, police and crime commissioners, residents’ groups, the licensed trade and the Welsh Government. The consultation asked three questions. First, do you agree that the order should apply to the sale of alcohol for consumption on the premises? Secondly, do you agree that the order should apply to England and Wales? Thirdly, do you agree that the order should extend licensing hours until 1 am?

The responses were almost entirely positive. There are, of course, some risks associated with extending licensing hours. The national policing lead for alcohol agreed with the proposed order, but highlighted that the weekend coincides with Euro 2016 football matches, when there will be an increased risk of alcohol- related disorder.

The police and crime commissioners’ working group on alcohol raised concerns that a blanket extension to licensing hours may prove disruptive to planning police resources. It considered the system of temporary event notices a more appropriate means for licensed premises to extend their licensing hours as it provides the police and licensing authorities with a means to screen out unsuitable premises and plan for any additional policing requirements. The Government carefully considered these concerns. The Government are unaware of any reports of increased crime or disorder during previous occasions when licensing hours have been extended in this manner. Licensing hours were extended during the 2014 World Cup for a similar period and there were no reports of increased disorder as a result. This order has similar terms to the equivalent orders relating to the celebrations for Her Majesty the Queen’s Diamond Jubilee and the Royal Wedding. The relaxation is for a limited period and we believe this is appropriate to celebrate an occasion of this sort.

The Government are committed to reducing burdens on business and public bodies where possible. This licensing hours order will reduce the burden on businesses, which would otherwise need to use a temporary event notice to extend their opening hours, at a cost of £21. It will also reduce the burden on the licensing authorities that would have to process the notices. I hope noble Lords will agree that the licensing hours order is an appropriate use of the powers conferred on the Home Secretary by the Licensing Act 2003. I commend the order to the House.

[Lord Rosser (Lab)]

I thank the Minister for his explanation of the purpose of the order, which we support. I had better indicate that right at the beginning, since the Minister may get the impression from some of the points I want to raise that perhaps we do not support the order—so I say from the start that we do.

The Explanatory Memorandum refers to the outcome of the consultation on the order. It states that all the “partner agencies” that were consulted replied in the affirmative to the three questions being asked, with the exception of the Association of Police and Crime Commissioners. It seems that the APCC considered the order,

“disruptive to planning police resources”,

and felt that it posed an,

“increased risk of alcohol-related disorder”.

I have to say that its concerns are immediately swatted aside in the Explanatory Memorandum in one sentence:

“However, the Government is not aware of any evidence of alcohol-related disorder during periods covered by previous Licensing Hours Orders”.

It is interesting that there is no impact assessment to address this point and that related to police resources, among others. It is also interesting that the organisation whose concerns have been, frankly, so abruptly dismissed by the Government in the Explanatory Memorandum is the one that represents and speaks on behalf of the elected police and crime commissioners, whom the Government created to increase public accountability of the police and to ensure that, through them, public concerns could be reflected and addressed. The Explanatory Memorandum suggests that, if the elected, accountable police and crime commissioners—who should know what the impact of the order may be in their own areas better than the Government—express concerns that are contrary to the Government’s stance, their concerns will carry little weight.

Perhaps the Minister could comment on that and, in the absence of an impact assessment, perhaps he could at least expand on the statement in the Explanatory Memorandum—which I quote again—that,

“the Government is not aware of any evidence of alcohol-related disorder during periods covered by previous Licensing Hours Orders”.

Does that sentence mean that in the additional hours covered by previous licensing hours orders there were no incidents at all throughout the country of alcohol-related disorder? If that is the case, frankly, that is unbelievable. Or is it meant to mean that the total number of incidents of alcohol-related disorder on the nights when there were extended hours under previous orders was no greater in total than the number of such incidents on a normal night without extended hours?

Immigration (Leave to Enter and Remain) (Amendment) Order 2016

Debate between Lord Keen of Elie and Lord Rosser

Wednesday 27th April 2016 Grand Committee

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

My Lords, I shall begin by observing that this is a highly technical order.

The UK welcomes record numbers of visitors to come and enjoy our historic sites and experience our vibrant culture. In the year to June 2015, 9 million non-EEA visitors came to the United Kingdom, an increase of 0.5 million compared to 2014, with 1.9 million visit visas issued in 2015—an increase of 2% compared to the previous year. The Government are keen that the UK continues to attract business and leisure travellers, who will help our economy grow further. So in April 2015 we simplified the immigration system for people visiting the UK. We streamlined the visitor routes by reducing their number from 15 to four and created more flexibility for visitors to do a wider range of activities.

The order’s provisions, which are of a technical nature, have two basic purposes: first, to update provisions in the 2000 order relating to the extent to which entry clearance will have effect as leave to enter and to the categories of person who may be granted leave to enter automatically and who can be granted or refused leave orally; and, secondly, it makes provision about lapsing leave.

The order extends the period for which entry clearance takes effect as leave to enter for certain categories of visitor, who may, exceptionally, be granted a visa for a period that is longer than the usual six months. These are private medical treatment visitors, who may be granted a visa for up to 11 months, and academic visitors, who may be granted a visa for up to 12 months.

With the simplification of the visitor routes of entry, two routes—those for visitors coming to study for a short period and for parents coming to stay with their children at school here—are no longer treated as visitors. This was done to make their purpose clearer. The order makes a change to ensure that short-term students and parents of tier 4 child students are included in the categories of person to whom leave may be given or refused orally.

The order also makes changes to update the categories of person who may, provided they are a registered traveller, be granted leave to enter automatically if they enter by an e-gate. A registered traveller is a low-risk frequent traveller of a specified nationality who can benefit from quicker processing at the border by entering via an e-passport gate. This is available at most UK airports.

Finally, the order makes a change to ensure that leave granted to partners and children of certain British or settled Crown servants and British Council employees does not lapse after two years when they are accompanying their partner or parent on an overseas posting. The change also means that those granted leave under the family provisions of the Immigration Rules can complete their probationary period outside the United Kingdom before applying for indefinite leave.

I commend the order to the Committee.

[Lord Rosser (Lab)]

I note that the Minister gave me a look when he started by saying that the order is of a highly technical nature, which I think was a suggestion that he hoped that I might not have too much to say, and I am able to grant him his wish. Since there appears to be nothing in the order of a controversial nature, there are no questions that I wish to raise or meaningful comments that I can make, so I will leave it at that and sit down.

[Lord Keen of Elie]

I am most obliged to the noble Lord for his brevity.

Modern Slavery Act 2015 (Code of Practice) Regulations 2016

Debate between Lord Keen of Elie and Lord Rosser

Wednesday 27th April 2016 Grand Committee

[Baroness Butler-Sloss (CB)]

My Lords, I think the code of practice is absolutely excellent and I have no comment on it, other than to praise it. I am absolutely delighted that the Modern Slavery Act includes these powers on ships.

I hope the Minister will forgive me for raising an issue that is not strictly on board ship. I remain, with others, very concerned about smaller ports. I have two questions, but I do not necessarily expect the Minister to be able to answer them today. First, what are the powers and code of practice in relation to ports in England and Wales, particularly the smaller ports that have regular ferry services but are not in the larger group? Secondly, the particular port I have in mind, which those of us concerned with modern slavery are especially worried about, is Holyhead. Holyhead does not appear to have a very good organisation at the moment for checking those who are coming through, who may in fact be being brought in for forced labour or sexual or other exploitation. Perhaps I could be told at some stage what is going to be done, or is already being done, about the smaller ports, with a really close look at what is happening in Holyhead.

[Lord Rosser (Lab)]

I thank the Minister for his explanation of the purpose and effect of this order, which brings into force a code of practice to be followed by constables and enforcement officers when arresting a person under the maritime enforcement powers set out in the Modern Slavery Act 2015. Without the powers in the 2015 Act, law enforcement authorities are not in a position effectively to police modern slavery offences that take place in international waters, and do not have the power to stop or divert vessels in UK territorial waters.

Human trafficking and modern slavery do not occur only outside the United Kingdom. The National Crime Agency has reported that last year 3,266 people, of whom 928 were children, were identified as potential victims of trafficking in the United Kingdom, with that first figure being a 40% increase on the number of potential victims in 2014. The United Kingdom is predominantly a destination country for victims of trafficking but it is also a source and transit country. Last year, potential victims of trafficking found here were reported to be from 102 different countries of origin.

Of course, our police and border forces need to have the most effective means available to pursue, disrupt and bring to justice those engaged in human trafficking. The code covers arrest and obtaining information. Is that power restricted to the ship or vessel on which it is suspected that slavery or human trafficking is taking place, or does it cover any wider geographical area or port facilities used, or about to be used, by the ship, or other vessels supplying or servicing the ship?

The Explanatory Memorandum states that the Government are,

“working with the Scottish Government and Northern Irish Executive with a view to commencing the maritime powers in Parts 2 and 3 of Schedule 2 simultaneously across the United Kingdom on 31 May 2016”.

I am not sure whether the Minister said that that objective had now been achieved or it is still to be achieved. If it is the latter, what would the consequences be if it was not achieved by 31 May 2016?

The Explanatory Memorandum refers to consultation that has taken place on the draft code of practice and states that, in response to comments made,

“the Code was amended to improve provisions for record keeping by constables and enforcement officers, and enhance the information to be provided to arrested persons on the period of time likely to be spent in transit to a police station or other authorised place of detention”.

Were any other suggestions or requests made in the consultation in relation to the code of practice that were not taken on board by the Government? If so, what did they cover?

Finally, were any issues raised by the Independent Anti-slavery Commissioner about the code of practice, and is he satisfied with the wording of the code and its consistency, for example, with other relevant codes of practice?

[Lord Keen of Elie]

I am obliged to your Lordships. I shall begin by addressing the point raised by the noble and learned Baroness, Lady Butler-Sloss—in particular in the context of her mixed metaphor. Border officials are maintained at ports, particularly ones where there are commercial operations going in and out of the country. The United Kingdom has more than 11,000 miles of coastline and the demands that that raises are considerable. To try and meet those demands, I understand that field agents are also deployed to respond to intelligence about arrivals in smaller ports. There is also a system of self-reporting that operates from some of these ports. However, with regard to the particular issues mentioned in respect of Holyhead, I undertake to write to the noble and learned Baroness to outline what our position is and what the views of the border officials are with regard to operations there, in light of the concerns that have been raised.

I turn now to the points raised by the noble Lord, Lord Rosser. With regard to the question of arrest and information, the powers of arrest are limited, as I understand it, to the vessel in question.

It was proposed that, subject to agreement with Scotland and Northern Ireland, commencement would take place on 31 May. Very recent intelligence suggests that there is still an issue to be bottomed out—if I can put it that way—with the Northern Ireland Executive over which jurisdiction would respond to any complaints regarding the conduct of a police officer who moved from one set of waters into another. In other words, if an English enforcement officer begins in England and Wales and moves into Northern Irish waters, are they then subject to the jurisdiction of Northern Ireland or do they remain subject to the jurisdiction in England? That has still to be resolved. If it cannot be resolved by 31 May then consideration would have to be given as to whether Part 3 of the Act could come into force on that date without the relevant code. That is being borne in mind.

On consultation, I am told that the consultation raised only a series of minor points with regard to the code and they were all taken into consideration.

With regard to issues concerning the independent commissioner and the code, the code was, of course, discussed with his office and he expressed that he was content with the code.

I hope that that deals with the points raised by noble Lords—

Modern Slavery Act 2015

Debate between Lord Keen of Elie and Lord Rosser

Wednesday 13th April 2016 Lords Chamber

[Lord Rosser (Lab)]

My Lords, if peer pressure does not work—by which I assume the Government mean that people do not stop using firms that are still exploiting labour as part of the supply chain—are we getting the loud and clear message from the Government today that they do not actually intend to do anything themselves?

[Lord Keen of Elie]

That is not so. As has been made clear, the Government are committed to reviewing the transparency and supply chain regulations over a five-year period and have already established a two-year internal research programme to look at the effectiveness of the provisions, which will be monitored and considered. They have to be given an opportunity to work. We are in the vanguard of these developments: they were proposed in California, and we were the first country to follow suit with similar provisions, wider in their terms even than California’s. Other countries are looking with interest at the direction in which we have taken this matter.

Immigration Bill

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 12th April 2016 Lords Chamber

[Lord Rosser]

My Lords, I support the questions raised by the noble Baroness, Lady Hamwee, in relation to the first amendment and retrospection, which was addressed by the Constitution Committee, and to the other two amendments and the extent to which they do or do not mean that the Secretary of State could dictate to a criminal court, including a court of criminal appeal. I am afraid I did not see the Minister shake his head when the noble Baroness, Lady Hamwee, made that comment, but I hope that, if that is the position as far as the Government are concerned, it does not mean that the Secretary of State will in any way be able to dictate to a criminal court and that the Minister will set out very clearly in his response why it is incorrect to draw that inference or assumption from these amendments.

[Lord Keen of Elie]

I shall begin with the observations made with regard to alleged retrospective effect in the provisions in Clause 63. Reference was made to a decision of the Court of Appeal in the case of B v the Secretary of State for the Home Department. Before that decision, which is subject to an appeal that I will come back to in a moment, it was widely—indeed, universally—understood that individuals could be released on immigration bail in circumstances where their detention was no longer lawful under the Hardial Singh principles; that is, there was no reasonable prospect of their deportation and they therefore had to be released. That understanding was shared by the relevant tribunals: the First-tier Tribunal and the Special Immigration Appeals Commission. Indeed, it was the decision of the president of the Special Immigration Appeals Commission which was overturned in the recent decision of the Court of Appeal, that determined that if detention was no longer lawful under the Hardial Singh principles, it would follow that bail could not be granted and, in particular, that bail could not be granted subject to conditions. As one might imagine, that had wide-ranging implications for the purposes of security, particularly in the case of B, who appeared to be an established Algerian terrorist who was at risk of carrying out terrorist activities to assist others in Algeria and elsewhere. The decision of the Court of Appeal has been suspended pending an appeal to the Supreme Court, which is set down to take place in December. However the Government’s position is that the position prior to the decision of the Court of Appeal was correct and it should be reinforced by statutory provision. It is for that reason that Clause 63 is in its present form. I understand that the appeal to the Supreme Court will proceed in any event, but it is essential, particularly in a matter that impacts on our security, that there should be no doubt or difficulty and no gap in our legislation so far as that is concerned.

Turning to Amendments 10 and 11, the test of practicability is for the Secretary of State, not the court, but there is no question of the Secretary of State usurping the functions of the court. It may be recollected that for that reason an amendment was made to Schedule 10 at an earlier stage to make clear that the Secretary of State could not usurp or overturn any decision-making power of the court or tribunal in these circumstances. That remains our position with respect to Schedule 10, as amended.

Immigration Bill

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 15th March 2016 Lords Chamber

[Lord Rosser]

The noble Lord, Lord Ramsbotham, has made a powerful case in support of Amendment 84, to which my name is also attached, and I do not intend to repeat all the points. The amendment is intended to provide for judicial oversight if a person is to be detained for a period longer than 28 days. If the noble Lord, having heard the Government’s response to Amendment 84, decides to test the opinion of the House, we will vote in support.

Immigration detention is a matter of concern. For the person detained it is detention for an indefinite period, since they are not given a date when it will end. Their life is in limbo. A recent all-party group inquiry into immigration detention heard evidence that detention was in some ways worse than being in prison, since at least people in prison know when they will get out. There is medical evidence that it causes anxiety and distress, not least among the more vulnerable groups. The all-party inquiry to which I have referred heard from medical people with knowledge in this field that the sense of being in limbo and the hopelessness and despair it generates lead to deteriorating mental health. One such witness said that those who are detained for more than 30 days have significantly greater mental health problems.

For his report for the Home Office into the welfare in detention of vulnerable persons, Stephen Shaw commissioned a review by Professor Mary Bosworth of the evidence linking detention with adverse mental health outcomes. Mr Shaw said that he regarded her view as a study of the greatest significance. Two of Professor Bosworth’s key findings were: first, that there is a consistent finding from all the studies carried out across the globe, which were from different academic viewpoints, that immigration detention has a negative impact upon detainees’ mental health; and, secondly, that the impact on mental health increases the longer detention continues.

In his conclusions, Mr Shaw stated:

“Most of those who have looked dispassionately at immigration detention have come to similar conclusions: there is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform”.

He ended by saying:

“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced”.

In the first three quarters of 2014, 37% of those detained were detained for longer than 28 days. Home Office guidelines are that detention should be for the shortest possible time and should be used only as a genuine last resort to effect removal. Yet despite centres being called “immigration removal centres”, most people who leave detention do so for other reasons than being removed from the United Kingdom. According to government statistics, more than half the detainees are released back into this country.

There could surely be some scope for a wider range of community-based alternatives to detention, enabling more people to remain in their communities while their cases are being resolved or when making arrangements for them to leave the country. The family returns process, which is designed to reduce the number of children detained, has resulted, according to the Home Office’s own evaluation, in most families being compliant with the process and no increase in absconding.

I note the views expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and his reason for not supporting but also, as I understand it, for not opposing this amendment if it is put to a vote. If Amendment 84 is passed by this House, the Government also have the option, if they choose to take it up, of putting an amended proposition as the Bill goes through its remaining parliamentary stages.

Amendment 84 does not of course put a time limit on immigration detention but it would ensure that a decision to continue to detain after 28 days was a judicial decision dependent on the Secretary of State having to make the argument that the circumstances of the case concerned required extended detention. The amendment does not preclude or prevent detention going beyond 28 days but it means, in a country where we uphold justice and the right to liberty, that at least after a period of time the decision to continue to detain has to be a judicial one, not an administrative one. Surely this House can support that.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions to this debate. The diversity of views expressed perhaps underlines the issues that have to be wrestled with in such a difficult area.

The Government take the issue of deprivation of liberty very seriously. Our current published policy in respect of immigration detention is quite clear: there is a presumption of liberty. There is a well-established principle that for an individual to be detained pending removal there must be a realistic prospect of removal within a reasonable time, and that is carried out by virtue of judicial oversight. Depriving someone of their liberty is always subject to careful consideration and account is invariably taken of individual circumstances.

Amendment 84 would significantly impact on our ability to enforce immigration controls and maintain public safety, particularly at a time when the Government have set out a commitment to ensure effective use of detention, complemented by a renewed focus on facilitating an increased number of voluntary returns without detention, which safeguards the most vulnerable while helping to reduce levels of immigration abuse.

It might be helpful to remind noble Lords that most people detained under immigration powers spend only relatively short periods in detention. According to published statistics for the year ending September 2015, more than 32,000 people left detention. Of these, 62% had been in detention for fewer than 28 days. The overwhelming majority of detainees—93%—left detention within four months. Of those, approximately 40% were subject to deportation action, having been previously convicted of criminal offences in the United Kingdom or the EU and having refused to leave the UK on a voluntary basis.

Immigration Bill

Debate between Lord Keen of Elie and Lord Rosser

Tuesday 9th February 2016 Grand Committee

[Lord Keen of Elie]

I am obliged to the noble Lord. Clearly some important issues are raised here. The noble Baroness, Lady Hamwee, noted that there was some reference to this issue in the Conservative Party manifesto. The noble Lord, Lord Rosser, will correct me if I am wrong but it also featured in the Labour Party manifesto, so I would understand him to have a reasonable degree of insight into what is proposed here.

[Lord Rosser]

I am asking how the Government intend to apply this. It is their legislation.

[Lord Keen of Elie]

I fully understand the nature of the noble Lord’s inquiry; I was just pointing out that the rationale behind this legislation was recognised not only in the Conservative Party manifesto but in the Labour Party manifesto.

I begin by looking at Amendment 242, moved by the noble Baroness, Lady Lister. I am glad to have the opportunity to reassure her and other noble Lords that the duty being imposed by this provision does not apply to individuals who communicate using British Sign Language. I believe it may help if I explain that it will not be the responsibility of individual members of staff to meet this duty; it will be the responsibility of public authorities, as the employers. I remind noble Lords that, as employers, public authorities have a duty under the Equality Act 2010 to make reasonable adjustments for their staff. If reasonable, a British Sign Language interpreter would be provided. In addition, any worker or job applicant who communicates using British Sign Language must be considered for recruitment on a par with any other applicant.

To comply with the duty in Part 7, public authorities must ensure that the British Sign Language interpreters whom they employ, rather than the recipients of such a workplace adjustment, speak fluent English. Given that fluent spoken English is the reason the interpreter has been engaged, there should be no difficulty at all in public authorities meeting that duty. In those circumstances, I seek to reassure the noble Baroness, Lady Lister, about the position in regard to British Sign Language.

Immigration Bill

Debate between Lord Keen of Elie and Lord Rosser

Monday 1st February 2016 Lords Chamber

[Lord Keen of Elie]

I believe that I did observe that we accept the broad thrust of his recommendations. At this stage, we have not determined which of the 64 individual recommendations we will implement. I cannot see that as surprising in the time available.

[Lord Rosser]

That comes back to the point that the noble Lord, Lord Ramsbotham, made about this legislation in relation to an inquiry that has just taken place. In my opening contribution, I commented that a statement that we are accepting the broad thrust of the recommendations is as long as a piece of string. Perhaps I can test the Minister on that. Recommendation 62 states:

“I recommend the Home Office give further consideration to ways of strengthening the legal safeguards against excessive length of detention”.

Is that one that the Government intend to accept? I am only asking about one recommendation out of 64. The Minister shakes his head. That makes my point.

[Lord Keen of Elie]

With great respect, one could ask about one out of 64,000. It is not a question of which one but of addressing all of them in due course and in the context not necessarily of primary legislation but of the need for further guidance. The noble Lord has underlined the potential need for further guidance in this area.

--- Later in debate ---

[Lord Rosser]

The reason for asking about recommendation 62 was that the Minister sought to tell us there was not a problem because people could apply for bail. But recommendation 62 is based on Mr Shaw looking at the situation with regard to bail. It is in the light of having looked at it that he said:

“I recommend that the Home Office give further consideration to ways of strengthening the legal safeguards against excessive length of detention”.

So I would have thought that the Minister, having referred to the very issue that prompted recommendation 62, might have a view on what the Government’s response was to it. But clearly there is silence from the Government on that particular score.

I do not know whether the Minister intends to respond to the question about the Home Office internal review. As I understand it, the noble Lord, Lord Ramsbotham, has said that he raised the question and has not had a response to it. Is there an internal Home Office review going on? I am obviously not going to get an answer, so it looks like a secret review.

[Lord Keen of Elie]

There could well be a secret review, but in so far as there is an ongoing review, we will write to the noble Lord about its progress. However, I have mentioned the matter which the noble Lord, Lord Ramsbotham, raised, about the short-term holding facility rules and the review of those rules. I indicated that we were going to consult on those draft rules in the light of the Shaw report.

[Lord Rosser]

Is the purpose of the Home Office internal review to decide whether to accept any or all of the Shaw report recommendations, or is it on another issue?

[Lord Keen of Elie]

There is an internal review, and I have already indicated that we will set out the position in writing.

[Lord Rosser]

That is a very interesting reply; the Minister is not prepared to tell me what the purpose of the review is. That is a fair comment, because he could have stood up and told me. I asked him the question and he has not answered it. I will just leave it in this context. We detain people who are not criminals for an unknown period of time as an administrative or executive decision and not as a judicial one at any meaningful stage. The message that has come over from the debate so far, in the absence of anything very specific from the Government, is that the Government find that situation entirely satisfactory. A number of noble Lords in the Committee this evening do not find that situation satisfactory. None the less, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Keen of Elie]

Again, I am obliged to the noble Baroness for highlighting this point. The new clause would require the Secretary of State to review the requirement that non-visitor migrants of specified nationalities register with the police, and then lay before both Houses a report on that review. In our submission, such a review and report is not necessary.

The noble Baroness correctly identified that there is a police registration scheme. The provision is set out in Section 3(1)(c) of the Immigration Act 1971. The requirements to register with the police are specified in the Immigration Rules. The requirement to register with the police is normally placed on a migrant who is aged 16 or over, from a non-EU country and who is given leave for longer than six months. The requirement is to register within seven days of obtaining qualifying leave to enter or remain. There are a number of exceptions where the requirement will not usually apply, including ministers of religion, people exercising access rights to a child resident in the UK, and those granted refugee status.

The requirement to register with the police is not onerous. In the Metropolitan Police area, where there is the highest concentration of migrants required to register, there is a designated office in Borough. For all other police force areas, the individual should register at the nearest police registration office. As the noble Baroness noted, there is a registration fee, currently £34, which reflects the administration costs of the police registration certificate.

The noble Baroness mentioned an occasion when students were reported to have had to queue. In October 2012, some long queues of migrants, mainly students, were seeking to register at the London Overseas Visitors Records Office. OVRO made changes to its process following that incident, including providing pre-booked timeslots for migrants required to register, and I am advised that there has been no recurrence of those queues. Universities are also given the option of collating the relevant paperwork from their students who are required to register and delivering it to the OVRO in bulk. The police continue to work and engage with those involved to manage peak flows in registrations and to minimise any inconvenience from that. I accept that there was an occasion in 2012 when there were delays, but that has not repeated itself.

The information required for registration is all information that will be held by the individual, including personal details, a current photograph, passport details, address in the United Kingdom, their last place of residence outside the UK, and details of their employment and/or place of study. This information is then on record for the police and other law enforcement to access, as necessary, in order to maintain security.

The various requirements for those seeking to stay and live in the UK, as set out in the Immigration Rules, are periodically under review to ensure that they strike the right balance between immigration control and security in the UK. I believe that this current approach is proportionate, particularly in the current state of heightened security concerns, and it is unnecessary for there to be a statutory requirement for a formal review to be conducted and a report laid before both Houses. In light of these points, I invite the noble Baroness to withdraw the amendment.

[Lord Rosser]

How many people should have registered under this arrangement in 2014, or any other year that the Minister is aware of, and how many did register? What is the penalty for not registering and how many people have been penalised for not registering?

[Lord Keen of Elie]

I am obliged to the noble Lord for his three questions and I will write in response to provide the detail, which I do not have immediately to hand at this moment. I hope that was not a surprise to the noble Lord.