Police Pension Liabilities

Lord Kennedy of Southwark Excerpts

Tuesday 6th November 2018 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, my honourable friend in the other place, the Member for Bradford South, Judith Cummins MP, first raised this matter with the Prime Minister at Prime Minister’s Questions on 24 October, and received a less than satisfactory answer, to say the least. Following that answer from the Prime Minister, the National Police Chiefs’ Council and the Association of Police and Crime Commissioners issued a joint statement in the names of Chief Constable Sara Thornton and Police and Crime Commissioner Mark Burns-Williamson. Their statement backs up the question from the Member for Bradford South and makes clear that the first notification which enabled forces to calculate the impact of pension changes came in September 2018. The impact of the changes risks a reduction in the number of police officers at a time of rising crime. It is not good enough to say today that some funding will be available, unless the issue is tackled comprehensively. The only people who will welcome the situation are the criminals, as there will be fewer police officers to tackle them and bring them to justice.

[Baroness Williams of Trafford]

My Lords, I thought that there might be a question in there, but there was not—it was a statement. I do not think the noble Lord asked me a question, but I acknowledge the points that he made. He may be aware that my right honourable friend the Policing Minister has absolutely pledged to work with the Treasury and the NPCC to ensure that the funding needed to service the pensions will be forthcoming. Additionally, on the police budget itself, he has pledged to review police spending power ahead of announcing the police funding settlement for 2019-20 in early December.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the response on 25 October from the National Police Chiefs’ Council and the Association of Police and Crime Commissioners makes it clear that they have received no guidance on what the changes will mean. Does the noble Baroness think that that is acceptable?

Counter-Terrorism and Border Security Bill

Lord Kennedy of Southwark Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Paddick]

My Lords, I support all the amendments in this group. Amendment 7, in the name of my noble friend Lady Hamwee, to which I have added my name, removes the publication of images from this section and the new offence of publishing an image.

The existing offence under Section 13 of the Terrorism Act 2000 already outlaws the wearing of an item of clothing and the wearing, carrying or displaying of an article,

“in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”.

As I understand it, the Government want this new offence to cover photographs taken in a private place. As Liberty has pointed out in its briefing, this increases the risk that in so doing law enforcement may,

“mistake reference for endorsement, irony for sincerity, and childish misdirection for genuine threat”.

I gave the example at Second Reading of an innocent Facebook post of a selfie in a friend’s bedroom, with the subject not realising that there was an ISIS flag on the wall behind them.

Both the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights have expressed their unease with the new offence, which, like Clause 1, risks disproportionate interference with Article 10 of the European Convention on Human Rights. There is a general point here that covers both Clause 1 and Clause 2. I accept what the Minister has said—that these offences are designed to address a gap in the ability of the authorities to prosecute some people—but this runs the risk of creating a chasm into which innocent people are going to fall. Regrettably, we have seen time and again—I speak as a former police officer with more than 30 years’ experience—legislation that is too loosely drawn being abused by the police to arrest and detain people who should not be arrested or detained.

Amendment 8, in the name of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, to which I have added my name, seeks to exclude those circumstances identified by the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights of,

“historical research, academic research or family photographs”,

and any publication that,

“was not intended to support or further the activities of a proscribed organisation”.

I appreciate that I have not heard from the Labour Front Bench in support of Amendment 9, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark—that has a similar intention to Amendment 8 but specifically includes journalism.

Taken together with the requirement that the publication was not intended to support, encourage support for or further the activities of a proscribed organisation, my concerns about universally exempting journalism, as in Amendment 6, do not apply to this amendment and therefore I support it.

This extension of the law risks criminalising those who have no intention of carrying out acts of terrorism or encouraging others to do so. As such, I agree with my noble friends Lord Marks of Henley-on-Thames and Lord Thomas of Gresford that Clause 2 should not stand part of the Bill.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the amendments in this group seek to provide clarity on the issues in question before the Committee on this clause. They seek to put into the Bill the recommendations of the Joint Committee on Human Rights, which has looked at the Bill in detail. The committee has set out the position clearly. This clause is intended to criminalise the online publication of an image depicting clothing or other articles which arouse reasonable suspicion that a person is a member or supporter of a proscribed organisation. The committee has taken the view that the arousal of reasonable suspicion of support for a proscribed organisation is a low threshold under which to make an offence. I agree very much with the committee in that respect, as I do with the noble Baroness, Lady Hamwee—it may be too low a threshold.

The noble Baroness and the noble Lord, Lord Paddick, have put forward Amendments 7 and 8 in this group, as the Joint Committee suggested. Amendment 9, as proposed by myself and my noble friend Lord Rosser, is similar in effect to Amendment 8 but, as we heard from the noble Lord, Lord Paddick, we also make reference to journalism and academic research. All the amendments in this group are reasonable and proportionate. The new offence of publication of an image would be retained but through them we have created a proper defence of reasonable excuse in the Bill, which is important. The noble Lord, Lord Marks of Henley-on-Thames, has opposed Clause 2 standing part of the Bill. That gives the Minister the opportunity to justify this afternoon what is proposed in the clause.

The noble Lord, Lord Carlile, made an extremely important point in respect of images in Northern Ireland. Like the noble Lord, I have travelled extensively in the Province, where you can now visit areas with murals all over the place. Some of them can still look quite aggressive but they are also very much part of the tourist trail in certain parts of Belfast. We need to look at this issue and be careful about whether what we do here has unintended consequences. If the Minister does not accept the amendments before the Committee, can she set out how we can be satisfied that there is adequate protection in place within the clause as drafted?

[Baroness Williams of Trafford]

My Lords, under Clause 2 it will be an offence to publish an image of an item of clothing or other article associated with a proscribed organisation,

“in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of”,

the organisation, as noble Lords have pointed out. This provision updates for the digital age the existing offence at Section 13 of the Terrorism Act 2000, which criminalises the display in a public place of such an item in such circumstances. That existing offence applies only partially in cases where a person publishes an image online. While it would be likely to catch a person who publishes an image of, for example, a Daesh flag displayed on the streets, it could be argued not to apply to publication of an image of the same flag displayed within a private home, even if both images are made available to the general public by publishing them online in the exact same way.

The purpose of Clause 2 is to put beyond doubt the application of Section 13 to any case where a person publishes an image of something which it would be unlawful to display in person. It does this by inserting a new offence into Section 13 as its new subsection (1A). This is important to ensure that the law applies properly to contemporary online activity. In the 18 years since the Section 13 offence was enacted, we have of course seen an exponential growth in the importance of the internet in day-to-day life, and sadly its role in radicalisation and the spreading of terrorist propaganda is no different. This includes publishing images of flags and logos associated with proscribed terrorist organisations. We therefore need to update our legislation to reflect these developments and to ensure that all public spaces, including those online, are properly covered by laws which prohibit the publication of such material. Amendment 7 would simply remove this provision in its entirety, rather than seeking to amend or improve it, leaving the gap I have just described and leaving our terrorism legislation out of date and incomplete.

Amendments 8 and 9 would add a reasonable excuse defence to the new Subsection (1A) offence I have outlined. Both specify certain examples of reasonable excuse. Amendment 6 includes instances where publication of the image was not intended to be in support of a proscribed organisation, whereas Amendment 7 makes this category an absolute exemption.

Noble Lords have indicated that their intention is to ensure that the offence does not catch those with a legitimate reason to publish images of items associated with proscribed terrorist organisations, in particular in the context of historical or academic research or family photographs, or who otherwise publish such images without nefarious intent. I am very happy to support both the sentiment and the intention behind these amendments. The Government have no desire to criminalise people for simply going about their legitimate professional activities or their normal family life, but these amendments are not needed to secure that outcome. In fact, the same outcome is already secured by Clause 2.

To explain why that is so, it is important to note that the mere publication of an image associated with a proscribed organisation is not enough on its own to constitute an offence under the existing Section 13 offence or the new offence that will be added to it by Clause 2. The offence will be made out only if the image is published in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of the proscribed organisation. This provides a clear and effective safeguard. For example, in a case where a journalist features an image of a Daesh flag in a news report on the activities of the group or an academic publishes such an image in a book or research paper, it would be clear from the circumstances that they are not a member or supporter of Daesh. Similarly, where a person publishes, say, an old family photo of an ancestor standing next to an IRA flag, the offence would not bite unless all the circumstances of the publication suggest that that person is a member or supporter of the IRA.

On the point made by the noble Lord, Lord Carlile, about the sensitivity of symbolism, pictures et cetera and Northern Ireland, if he will indulge me, I will move on to the specific Northern Ireland point on the next amendment.

This approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation—

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[Lord Kennedy of Southwark]

Before the Minister responds, perhaps I could clarify that point. She is saying that in the example of the photograph with a Daesh flag in the background but where the person does not realise what the flag is, the publication of that picture would not in itself be an offence because you would take into account things such as the message that accompanied the Facebook post—for example, a message saying, “I’m here with my friend and having a drink”—so all those things would be considered together. I think that is what the Minister is saying.

[Baroness Williams of Trafford]

As the noble Lord has just explained, it is about the whole context in which this happens. In any case, it will of course be the police and the Crown Prosecution Service that will determine those normal tests for prosecution, and of course ultimately the courts.

The noble Lord, Lord Marks, made the point about the viewer and the publisher. I had hoped that my words would explain that but they do not. I will take back what he says, and I am sure he will challenge me on it on Report. However, I hope the approach provides no less certainty to such individuals that they will not be caught by the new offence than would the proposed reasonable excuse defence, and it offers the advantage that the same formulation has been in force since 2000 in relation to the existing Section 13 offence, which would already be likely to cover many of the circumstances where the item depicted in the image is situated in a public place. As I have said, it is when the item is not located in a public place that the gap begins.

After 18 years that formulation is well understood by the police and the courts. Proof of its effectiveness lies in the simple fact that during that period we have not seen prosecutions of any journalists or academics who have published reports or books containing such images. That should give us some comfort. Nor have we seen any complaints that such people have been inhibited or discouraged from pursuing their legitimate professional activities by the existence of the Section 13 offence. I have sympathy for the objective behind the amendment but I hope that, for the reasons given, noble Lords will agree that it is not necessary. I hope that having heard the arguments for the Section 12(1A) offence and my assurances about the scope of the offence and the effectiveness of its existing safeguards, the noble Baroness will be content to withdraw the amendment.

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Moved by

[Lord Kennedy of Southwark]

14: Clause 3, page 2, line 37, leave out from “which” to end of line 41 and insert—
“(a) at the time of the person’s action or possession, the person did not know, and had no reason to believe, that the document or record in question contained, or was likely to contain, information of a kind likely to be useful to a person committing or preparing an act of terrorism,(b) the material in question was collected, recorded, possessed, viewed or otherwise accessed for the purposes of journalism,(c) the material in question was collected, recorded, possessed, viewed or otherwise accessed for the purposes of academic research”

[Lord Kennedy of Southwark]

My Lords, my Amendment 14 is supported by my noble friend Lord Rosser. Clause 3 seeks to create an offence of viewing material online that is likely to be useful to a person committing or preparing acts of terrorism. That is something we on these Benches can support. Our amendment seeks to build in protections that strengthen the intention of the clause. We seek to make clear in the Bill that no offence is committed if the person had no idea, did not know, or had no reason to believe that the material would be useful to someone committing or preparing for acts of terrorism, and that it could be viewed or collected for journalistic or academic research purposes. My noble friend Lord Davies of Stamford, who is not in his place, raised the important issue about journalism in a previous group of amendments. There is a point to be explored here about what defines a journalist. I am sure we will come back to that point in other debates. Do bloggers count as journalists? I actually think not, but again these are important issues which I am sure will be looked at elsewhere.

Amendments 15 and 16, which are largely the same, seek to put into the Bill the recommendations of the JCHR on page 8 of its report. My amendment would require the Secretary of State to issue guidance so that it is clear what is reasonable; we are talking here about what is and is not reasonable. It seems very sensible that the Secretary of State should issue guidance on that. When the Government respond to this group of amendments, and if they are not minded to accept what we have put forward, it would be useful for them to set out what protections are in place that would cause the amendment not to be approved.

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[Baroness Hamwee]

That is an interesting response and I will have to think about it. I share the concern of the noble and learned Lord, Lord Judge, not to involve the Executive where it should not tread. There could be parliamentary scrutiny. We have become possibly too reliant on codes of this and that to flesh out what lies underneath legislation—it is not something I much like, and I have obviously been sucked into it. So we could have parliamentary scrutiny if we had a statutory instrument, but we could also list in the Bill the sorts of examples we have talked about, in the way that the amendment from the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, seeks to do in Clause 4. I think that that is a particularly good way of going about it.

I do not suppose the Minister can answer this, but his reference to the Independent Reviewer of Terrorism Legislation prompts me to ask about progress in appointing the new reviewer. He is indicating that he cannot answer, and I did not expect him to, but it is a point that was worth making at some stage in this debate.

[Lord Kennedy of Southwark]

My Lords, I thank all noble Lords for their contributions to this debate and the noble Earl, Lord Howe, for outlining the position of the Government on this group of amendments. I appreciate his detailed response, which is beneficial to the Committee.

I will reflect on all the responses and comments—particularly the wise comments from the noble and learned Lord, Lord Judge. Those comments could be interesting for guidance on other legislation before the House on which the Government take a contrary view. However, we shall discuss that in a few weeks’ time. At this stage I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

Youth Crime: London

Lord Kennedy of Southwark Excerpts

Monday 22nd October 2018 Lords Chamber

[Baroness Williams of Trafford]

Before the House gets totally fed up with me, I will tell noble Lords that the Government have given £40 million, and £40 million has come from the Big Lottery Fund, for youth provision and social action. We continue to fund the growth of the very successful National Citizens Service, and £700,000 has gone into the Delivering Differently for Young People programme.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I draw the attention of the House to my relevant interests. There has been a cut to policing in real terms since 2010-11. In London, as the noble Lord, Lord Garel-Jones, mentioned, 81 youth centres have closed, 800 full-time youth workers are no longer there and there has been a £39 million cut in youth services in the capital since 2011. Does the Minister not accept that these spending reductions have a direct effect on the ability of the police and local authorities to tackle knife crime?

[Baroness Williams of Trafford]

My Lords, we have talked a lot in this place about police funding. It is important to note that public investment in policing has grown by over £1 billion from £11.9 billion in 2015-16 to £13 billion in 2018-19, including investment in counterterrorism policing, local policing and funding for national programmes. There are other funding streams, including the £175 million police transformation fund and special grants.

Sexual Offences

Lord Kennedy of Southwark Excerpts

Monday 22nd October 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I do not think that what has happened here is political correctness; I think that, given the sheer number of people involved in the types of crimes they committed against some very vulnerable girls, it has taken time to bring this case forward—and, of course, the case was delayed for reasons outside the CPS’s control. It is really important, for successful prosecutions to be brought, that full rigour goes into the investigation and subsequent prosecutions.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, first, I join the noble Baroness in paying tribute to the police and to the bravery of the victims of these appalling crimes. By coming forward, they have highlighted this evil, had the criminals brought to justice and protected other young girls from becoming victims. Compare that to the irresponsible actions of those who risked collapsing the trial. What work are the Government undertaking to understand the full scope and size of this crime, of these offences, in our country? Without understanding that, it will be very hard to effectively resource both prevention and investigations, and to bring all the perpetrators to justice.

[Baroness Williams of Trafford]

The noble Lord makes a very good point: unless we can understand the root causes of this, it is very difficult to tackle it. There have been several similar cases of the abuse of children. My right honourable friend the Home Secretary has said:

“I will not let cultural or political sensitivities get in the way of understanding the problem ... I’ve instructed my officials to explore the … characteristics of these types of gangs and if the evidence suggests that there are cultural factors that may be driving this type of offending, then I will take action”.

Crime (Overseas Production Orders) Bill [HL]

Lord Kennedy of Southwark Excerpts

Report stage (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Lord Paddick]

My Lords, were we to leave the European Union, the EU would examine our data protection regime to satisfy itself that it would be safe for the EU 27 to continue to exchange electronic data with the UK. This continued exchange of data is essential not only for law enforcement and counter- terrorism purposes but for commercial transactions.

The Government have recently passed the Data Protection Act 2018, which not only provides the necessary infrastructure to enable the UK to comply with the general data protection regulation, a piece of EU legislation, but ensures that the UK complies with EU standards of data protection in relation to law enforcement and national security that are not covered by the GDPR. In other words, the UK is ensuring that it complies with all EU data protection standards, so as to guarantee that it will be issued with a certificate of adequacy that will enable continued exchange of electronic data if we leave the EU.

If, as a result of this Bill or the treaties associated with it, UK companies were required to provide law enforcement agencies in other countries with personal data covered by the Data Protection Act and/or GDPR, and those foreign law enforcement agencies’ data protection standards were deemed by the EU to be inadequate, there is the potential for the EU to withdraw its adequacy certificate from the UK. Basically, if member states of the EU share data with the UK, and the UK shares that data under this Bill with law enforcement agencies that have inadequate data protection standards, the EU might stop sharing data with the UK. This amendment is designed to ensure that this does not happen. I beg to move.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the noble Lord, Lord Paddick, raised an issue about which Act would take precedence in the event of a conflict between this Bill—when it becomes an Act—and the Data Protection Act 2018. His amendment makes it clear that, in the case of a conflict, the DPA, along with the GDPR, would take precedence. That seems quite sensible: it gives us certainty on the matter, for the reasons outlined by the noble Lord. I support his amendment.

[Baroness Williams of Trafford]

I thank both noble Lords for their points. There has been nothing in our own domestic law that requires a UK provider to comply with an overseas order. There will therefore be no conflict with domestic law if a CSP decides that complying with a foreign order would put it in breach of its obligations under the GDPR.

The existence of any conflict with UK data protection law does not have the effect of making the order from the other country invalid. Equally, the existence of the order does not compel the UK CSP to ignore its data protection obligations under UK law. It will be for the CSP on which an order is served to reconcile and comply with all legal obligations it is under. It could apply for the variation or revocation of the order, or use the dispute resolution mechanism that we expect all specific international agreements to include. That said, we do not think that this is likely to be necessary in practice. The GDPR contains several “gateways” which permit the cross-border transfer of personal data, including in response to a request or order from overseas law enforcement.

I know the noble Lord’s concerns about data protection, and I absolutely sympathise with him. We have discussed this before, and I think that ultimately we all want the same thing: adequate protection for the privacy rights of individuals. I hope that my explanation will satisfy the noble Lord that the Bill does not in any way threaten data protection rights, which are robustly protected by existing legislation. UK CSPs will continue to be bound by the GDPR and the Data Protection Act. Therefore, I hope that the noble Lord will feel happy to withdraw Amendment 12.

Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018

Lord Kennedy of Southwark Excerpts

Tuesday 16th October 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, until about a year ago I was the Chief Surveillance Commissioner. I shall make a few observations in this debate, largely repeating what I said way back in July.

There are occasions when youngsters can sensibly and safely be used as CHISs. There are occasions when they help in the investigation of crime, and they sometimes work so that crime is prevented. That said, we need to recognise that a number of safeguards are in place—but the question is whether the safeguards are as complete as they should be. They include that an authorising officer in the context that we are considering is always, in every police force, at least at the level of assistant chief constable. This is not a responsibility discharged by relatively junior—or indeed even quite senior—officers. It is a situation in which the inspectors, as they used to be in the surveillance commission, always look at every case involving a juvenile CHIS with particular attention, for all the obvious reasons. However, it is problematic.

The question I have asked, and shall continue to ask, is why on earth we do not have a double-lock system to address all anxieties about whether even assistant chief constables may be as objective as they should be—bearing in mind their responsibilities for the investigation and prevention of crime—in balancing the safety, the welfare and the long-term safety and welfare of the juvenile CHIS. One way is to deal with this process in a way that is perfectly well understood—it certainly was in the surveillance commission and is obviously still understood to this day under the new arrangement. The judicial involvement in this process should not be after the inspection has taken place and the inspectors have reported to the Chief Surveillance Commissioner so that he can make a judgment. Instead, after the senior officer has decided that this is an appropriate situation in which to use a juvenile CHIS, the decision should then be considered by one of the judicial commissioners, who undoubtedly—this is not an implied criticism of assistant chief constables—will be focused more significantly on the protection and the needs of the young CHIS than perhaps a police officer might be.

It is a question of balance. It is a safeguard which could be introduced—unless things have changed dramatically—with little difficulty. Judges are used to giving authorisations for all kinds of elements involved in, if you like, the secret world, and this would be one more. Very few juveniles are used for this purpose and therefore it should not be a burden. I would love to hear the Minister’s answer as to why this should not happen.

The regret Motion, of course, is focused on a different point. I say to the noble Lord, Lord Paddick—to whom I forgot to apologise for not being here when he opened the debate: I ask him to forgive me—that there is a failure to keep us informed on this issue, and that is what I regret.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Lord, Lord Paddick, for moving his regret Motion. I pay tribute to my noble friend Lord Haskel, who first alerted your Lordships to this issue. The House is also grateful, not only on this issue but generally, for the work of the Secondary Legislation Scrutiny Committee, which scrutinises every instrument that comes before Parliament. It is able to get into what a particular instrument does and then, by engaging with a Minister and through its reports, bring matters of concern to the attention of the House.

Covert surveillance is an important tool that is used to provide the evidence needed to prevent and detect crime. It is necessary, as there may be no other way to get the intelligence needed. Having said that, we have to have proper codes of practice in place and, where that involves young people under the age of 18—who are still legally children—it is of particular concern and importance. We have to ensure that children’s rights are protected and that there are adequate protections in place to take care of their physical and mental well-being and that proper risk assessment is undertaken.

The regret Motion before us rightly expresses regret that organisations concerned with human rights and the welfare of children were not consulted about the decision to extend the maximum length of juvenile covert human intelligence sources authorisations from one month to four months. The Home Office certainly got its presentation of this change wrong. It used terms such as “administrative convenience”, which does nothing to reassure Members that the Government have got the balance right here. What should be of paramount importance is the welfare of the child being used as a covert intelligence source.

As we have heard, this issue was debated in the Moses Room in July—a debate led by my noble friend Lord Haskel—and during that debate I posed a number of questions to the noble Baroness, Lady Williams of Trafford, and I shall pose some more today. I hope she is able to give more reassurance to the House when she responds to the debate shortly.

Can the Minister explain carefully why the decision was taken to extend the term from one month to four months? Can she tell the House how the Government have satisfied themselves that these proposals satisfy Section 1 of the Protection of Children Act 1999 and the Convention on the Rights of the Child, which the United Kingdom ratified in 1991? Can she say how she has satisfied herself that the safeguarding and protection of the children concerned while they work as covert human intelligence sources is delivered? I am sure that she would not have brought this here if she were not personally satisfied.

Moving on to risk assessments, can the Minister tell the House how the rights of the child are protected? Can she outline what specific training or expertise a police officer or other security professional would have in respect of understanding the needs and rights of the child? In what circumstances would it be acceptable for someone who could represent the interests of the young person to not be present during meetings with the handler?

Can the Minister also deal with the issue of consent? How do we make sure that the consent is appropriately understood and given, both where the child’s parents or guardians are informed and in those instances where the parents are not informed or aware of what is happening? Indeed, they could be the people the child is seeking to monitor. The noble and learned Lord, Lord Judge, also raised important points that need answering by the Minister when she responds.

In conclusion, this is a very sensitive and important area of policy affecting vulnerable young people in some very difficult circumstances. It is right that the House uses every device available to it to assure itself that the Government have put the correct and adequate protections in place. Again, I thank both my noble friend Lord Haskel for raising this issue in the first place and the noble Lord, Lord Paddick, for tabling the regret Motion that has enabled us to debate it.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I also thank both the noble Lord, Lord Paddick, for introducing the debate and the noble Lord, Lord Haskel, for his work in bringing this issue to the committee’s attention in the first place. He may think that I am not really thanking him, but I am—it is important for your Lordships’ House to discuss these matters, particularly one such as this which has been in force for the past 18 years and only recently amended ever so slightly.

The debate allows me to both reiterate the importance with which the Government view the safeguarding of those small numbers of young people authorised as covert human intelligence sources and restate the enhanced safeguards that support the juvenile CHIS authorisation framework. We have recently strengthened those safeguards further, as noble Lords have mentioned.

I recognise the concern about the power more broadly, which has been remarked on before not just by me but by other noble Lords. The deployment involved is very small—it is unlikely to reach double figures. However, it is not a new concept. The 2000 order and the various iterations of the CHIS code of practice have governed the use of juvenile CHIS for almost two decades, ensuring that where it is necessary to authorise juveniles as CHIS, an enhanced authorisation and risk assessment is applied. I hope that the debate will assure noble Lords that the existing regime and our amendments to provide a legal framework place the welfare of the CHIS as the primary consideration; the interests of the child have been and will be paramount.

I will start by addressing the question of the noble Lord, Lord Paddick—the noble Lord, Lord Kennedy, asked me a very similar one—on why we have extended the authorisation for the juvenile CHIS from one month to four months and why we are increasing the period between renewals at a point when CHIS are being deployed in increasingly dangerous situations. Secondly, he asked why, when a monthly review of the case is required in any event, the review could not just continue to consider renewal of the authorisation—that is a question that the noble Lord, Lord Paddick, has now posed to me twice.

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[Baroness Williams of Trafford]

I do not know whether the noble Lord has that right or wrong. I will have to come back to him on that point. Just so he does not think I am derelict in my duty, I did ask that question but I will have to come back to him on it.

I turn to the second question, which was not about the changes that we have made but about the existing distinction in the safeguards, where an appropriate adult must be present in all meetings with a juvenile under the age of 16, but not for those aged 16 and 17. The noble Lord compared this with rules around the interview of juveniles under caution, where interviews of all under-18s require an appropriate adult to be present. I point out that 16 and 17 year-olds can absolutely request that somebody be present—a social worker, an appropriate adult or even a lawyer—but it is not mandated. That probably will not satisfy the noble Lord, but the law recognises that parental responsibility diminishes as a child matures. There are therefore a number of areas where the law treats over-16s differently from under-16s. For example, they can apply for their own passports or join the military.

Internal police guidance on deploying juvenile CHIS contains detail on how to safeguard and promote the well-being of the juvenile CHIS, including how to assess their maturity and capacity to give informed consent, which the noble Lord, Lord Kennedy, mentioned, a requirement to ensure that handlers are properly trained to deal with young people—they have day-to-day responsibility for the CHIS and must raise any issues surrounding matters including the safety and welfare of the CHIS with those responsible for authorising their deployment—and requirements to consider all aspects of safeguarding the young person.

[Lord Kennedy of Southwark]

I am grateful to the noble Baroness on that point. Is she saying that the officers concerned get special training in that respect to deal with young people in this situation?

[Baroness Williams of Trafford]

Yes. Any officer dealing with a juvenile will have safeguarding training.

The enhanced risk assessments required before a CHIS is tasked are reviewed and updated throughout the duration of an authorisation, and are also updated after an authorisation is cancelled and where contact is maintained with the CHIS. This applies to all juvenile CHISs, regardless of age, but it really should not be taken that the vulnerability of all those aged under 18 is not taken seriously when considering deployment as a CHIS. Rather, the risk assessments are made on a case-by-case basis by those charged with day-to-day dealings with the CHIS, including on their safety and welfare, and who are charged with relaying this to the authorising officer, who also has a role in this assessment.

In a recent letter to the chair of the JCHR, the Investigatory Powers Commissioner, Lord Justice Fulford, provided clarity on what his inspectors considered when inspecting public authorities which have authorised juvenile CHISs, and confirmed that the detailed focus of his inspectors is on the “duty of care”.

Turning to the very specific comparison, I think we are probably talking about a different scenario—one where the juvenile could be charged with an offence, and convicted or given a caution. With a juvenile CHIS, we are talking about a very different scenario. A child would need to give or confirm their consent to take on the role, and is under no obligation or pressure to act as a juvenile CHIS.

The third question raised by the noble Lord, and also by the noble Lord, Lord Kennedy, is how the needs of the specific child are prioritised, particularly with the UN Convention on the Rights of the Child in mind. The UK ensures that the principles of the convention are considered and realised through the approach taken in legislation and other measures, ensuring that the child’s rights and interests are safeguarded.

[Lord Kennedy of Southwark]

On the previous point made by the Minister about there being no pressure put on a young person to act as a CHIS, is it possible, when a young person has come to the attention of the authorities—or may have committed a crime—that it would be suggested to the child that matters would not be proceeded with if they were to act as a CHIS instead?

[Baroness Williams of Trafford]

I understand the noble Lord’s point. It would be unwise for me to stand at the Dispatch Box and say that that was the case, because I simply do not know. I can find that out. It would be rather cynical to take the view that these children, who are perhaps not perfect in many cases, would be deployed just on the information that officers could get out of them or as a quid pro quo for leniency over other matters in which they may have been found wanting.

[Lord Kennedy of Southwark]

I am just trying to understand the situation. It would be nice to hear from the noble Baroness at some point—maybe she can write to us. It should obviously always come to the attention of the authorities through various means, such as intelligence. However the authorities come to it, what are the circumstances such young people would find themselves in with the authorities?

[Baroness Williams of Trafford]

I will certainly write to the noble Lord on that matter.

The legal framework governing the authorisation and the use of the juvenile CHIS, when taken as a whole, is clearly capable of being exercised in a way which is consistent with the UN Convention on the Rights of the Child. The 2000 order, the supporting guidance provided in the CHIS code of practice and the internal guidance applied by public authorities seeking to use juvenile CHISs, all ensure that the welfare of any juvenile being considered for deployment as a CHIS is the paramount consideration.

Each part of the legislative framework is designed to ensure that the authorisation of a CHIS under the age of 18 is subject to enhanced safeguards, reflecting the need to consider the welfare of the child. The Regulation of Investigatory Powers (Juveniles) Order 2000 requires enhanced risk assessments to accompany any decision to use a juvenile CHIS, which are updated to reflect developments during the course of the deployment. They take into account the physical and psychological welfare of that young person, and are also updated after the deployment if contact is made.

The police will also have regard to their broader safeguarding responsibilities when making these decisions, which was the point raised by the noble Lord, Lord Kennedy. Indeed, the National Strategy for the Policing of Children and Young People, endorsed and published by the National Police Chiefs’ Council in 2015, says:

“It is crucial that in all encounters with the police those below the age of 18 should be treated as children first. All officers must have regard to their safety, welfare and wellbeing”,


as required under Sections 10 and 11 of the Children Act 2004 and the United Nations Convention on the Rights of the Child.

Counter-Terrorism and Border Security Bill

Lord Kennedy of Southwark Excerpts

2nd reading (Hansard - continued): House of Lords & 2nd reading (Minutes of Proceedings - continued): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, the first duty of a Government is to keep their citizens safe and have legislation on the statute book that gives powers to the appropriate authorities to keep people safe. I will always support the work of the Government in this regard. That is not to say that I will not question and probe them and seek to amend legislation when we believe that they are not striking the right balance. That is the point of our being here: to make legislation better and more effective; to fully understand the Government’s intentions; and to avoid as far as possible the problems caused by unintended consequences —a point made earlier by the right reverend Prelate the Bishop of Newcastle.

The noble Lord, Lord Anderson of Ipswich, speaks with great knowledge and experience of these matters and the House will benefit enormously from his contributions. I hope the Minister will answer the points he made.

It would not be right to respond to a debate on counterterrorism and border security without putting on record our thanks to and gratitude for the members of the security services and the police who have done so much to keep us safe, as well as those of the other emergency services, such as the fire brigade and the ambulance service, who are there when they are needed. They save people’s lives, as do NHS staff—not only doctors and nurses but the other healthcare professionals and ancillary staff who work together to deliver the services we all rely on, particularly in times of emergency.

We have seen terrorism on our streets too many times, most recently on Westminster Bridge and at Carriage Gates, at Manchester Arena, London Bridge and Borough Market, and at Parsons Green. There were also the terrible events in Salisbury—the poisoning of Sergei and Yulia Skripal, then the poisoning of Dawn Sturgess and Charlie Rowley on 30 June, leading to the death of Dawn Sturgess on 8 July. I express my sympathy to all victims of these terrorist incidents and their families. This is very real and we are lucky that many more plots and plans have been prevented, as the noble Baroness, Lady Williams of Trafford, mentioned in opening the debate. The noble Lord, Lord King of Bridgwater, set out in his contribution the number of offences and convictions and the potential terrorist operations that have been prevented. We thank all those heroes for their bravery and professionalism; they were there when we needed them to keep us safe.

The noble Lord, Lord Tebbit, was right to remind us of the names of parliamentary colleagues who lost their lives and were murdered by terrorists. I would add the name of Jo Cox, MP for Batley and Spen, who was murdered by a terrorist with links to the far right in her constituency on 16 June 2016. The terrorist shouted “Britain First” as he stabbed her to death outside the library in Birstall, where she was due to hold a surgery.

[Lord Tebbit]

The noble Lord referred to the murder of our parliamentary colleague Jo Cox by a far-right terrorist. He was not a far-right terrorist. He was an unbalanced man who was obsessed with the Nazis, the National Socialist German Workers’ Party—a left-wing party.

[Lord Kennedy of Southwark]

We will have to disagree on that point.

As I said, I support the Bill and will always seek to make a contribution in your Lordships’ House that supports the work of those who seek to protect us and to provide constructive opposition to improve legislation before us, as does my noble friend Lord Rosser.

Before we get to the Bill itself, I join other noble Lords in congratulating both noble Lords who made their excellent maiden contributions today. They bring considerable experience from the House of Commons where they served for many years with distinction. The noble and learned Lord, Lord Garnier, served as the Solicitor-General in the first part of the coalition Government. I lived and worked in the east Midlands for many years and, although I am a Londoner, I have much affection for my time there and in Leicestershire. I know the noble and learned Lord’s former constituency very well.

The noble Lord, Lord Tyrie, was the formidable chair of the Treasury Select Committee for the last seven years of his time in the House of Commons, having succeeded my noble friend Lord McFall to that position. In a previous life some years ago I appeared before a House of Commons committee. It was a scary experience. I am very pleased that the noble Lord was not a member of that committee; I would have been very worried about his forensic questioning. I am now worried about some forensic interventions in future debates, but I know that we all look forward to both noble Lords’ contributions in this House, which they will make many times.

We can support the Bill in general and will seek to make improvements during its passage through this House, building on issues raised in the other place and in today’ debate. The Bill is in two parts, with the first making changes to the law following reviews by the Government of their counterterrorism strategy and of counterterrorism legislation in force, while Part 2 seeks to provide new powers in respect of the detention and questioning of people at ports and border controls suspected of being involved in hostile acts on behalf of and in the interests of another state outside the United Kingdom.

As my noble friend Lord Rosser pointed out, a number of amendments to the Bill were tabled fairly late in the day in the Commons and were added with little scrutiny. Those amendments in particular will require detailed examination by the House. There are Members on all Benches, many of whom have spoken today, who are expert in providing scrutiny and challenge. In particular, I refer to the amendments made to the Bill in the other place covering entering and remaining in a designated area, the publication of images, obtaining or viewing material over the internet, increases in maximum sentences and extended sentences for terrorism offences.

My noble friend Lord Rosser outlined concerns about proportionality, particularly arising from amendments introduced in the House of Commons. The noble Lord, Lord Marks of Henley-on-Thames, drew out some contradictions in the Bill that will need to be examined further. The noble Lord, Lord Janvrin, made a very important point about people being radicalised in prison. I hope that the noble Baroness, Lady Williams of Trafford, will address that in her reply. That is not to say that we do not agree with the proposals but they need proper scrutiny, which they have not received so far.

Legitimate concerns have been raised by Bond, the UK network for organisations working in international development, humanitarian aid and peacebuilding. Can the noble Baroness tell us what the protections for aid workers in high-risk jurisdictions are? She may not think that these proposals pose any risk to them, but that view is not shared by everyone: we need to address the legitimate concerns raised by NGOs in this regard.

It would also be useful if the noble Baroness addressed the protection afforded by “reasonable excuse”. Is she really satisfied that it provides protection to mitigate the impact on individuals? The wider point was made about banks and other financial institutions taking derisking measures such as stopping bank payments and closing the bank accounts of NGOs. Journalists and foreign correspondents of UK news organisations can sometimes find themselves in very difficult and dangerous places. What they find and report on is vital, shining a light on those individuals, organisations and Governments, including dictatorships, who work in the dark, who abuse, oppress, terrorise and murder people, and who do not want their activities to be widely reported on. These activities can be against their own citizens or citizens of another country.

I made the point earlier about unintended consequences of legislation. We must be very mindful of that during the passage of the Bill, which I hope the whole House can see could have far-reaching effects on both international aid and journalism if not handled properly. I very much support the protection of press freedom and journalistic sources, as I support the victims of press abuse and their right to proper redress. Again, it will be important to clarify the intention of some of the clauses so that legitimate investigative journalism and reporting is not caught up and criminalised. It may be that, through regulation and guidance, protections will be sufficiently strong, but this is an important area for our deliberations.

The noble Baroness, Lady Warsi, made a powerful speech which the Government would be wise to listen to carefully. Getting the balance right on this legislation will be crucial. I was very sorry to hear about the abuse the noble Baroness has received on social media, which I condemn. The internet and social media is a wonderful thing and can enrich our lives, but the darker side and the abuse must be stopped. The Government really have to address that issue separately from the Bill.

Of course, we fully understand that the Government have to deal with the issue of foreign fighters returning from abroad, but any suggestion of updating and using the concept of treason, a law dating from 1351 and not used since 1945, is misplaced. There are other, more appropriate means of addressing these issues. I also think that we undermine, not uphold, the rule of law by removing the right to private legal advice. My honourable friend in the other place, Nick Thomas-Symonds MP, reminded us that the Appeal Court upheld this principle recently in the case of the Serious Fraud Office v Eurasian Natural Resources Corporation. Lawyers are subject to professional standards and it is right that they are. Illegal activities should be dealt with appropriately, but we should not lose the principle of being able to seek advice from a lawyer in private. Proposals in the Bill seek to change that, and the reasons given are that the person in question may want to contact someone in order to alert them that they have been stopped at a border crossing, or that a lawyer would not adhere to proper professional standards and would pass information on or would leak information inadvertently. There is a better solution, which is to establish a panel of lawyers, subject to proper rules and regulations, who would be able to give legal advice. The advice would remain private, retaining an important legal principle but also safeguarding against a person misusing the right to seek advice from a lawyer in private.

My noble friend Lord Rosser referred to the European arrest warrant and the important role it plays in bringing suspects quickly into the criminal justice system. We need a deal to secure the European arrest warrant and it will be a disaster if this cannot be assured. Criminals will be the only beneficiaries. It is worth noting that the Government sought a European arrest warrant against the suspects in the Skripal incident.

I fully endorse the comments of the noble Lord, Lord Kirkhope of Harrogate: there must not be even one hour’s gap in the work of sharing information with other European partners, as to allow this will benefit only the terrorist who is seeking to harm our country, citizens and residents.

The noble Baroness, Lady Manningham-Buller, made an important point about getting the balance right and the importance of co-operation with our partners. I accept the point she made about the pace and scale of operations and the need to plug a number of gaps in our legislation to address certain issues.

My noble friend Lord Rosser spoke about the Prevent programme and I fully endorse his comments.

In conclusion, this is an important Bill covering many serious issues for this House to consider over the coming period. I look forward to working with others to improve what is before the House today and to send a much better Bill back to the other place for its agreement. With that in mind, I hope the Government will continue to work in the consensual manner they have demonstrated to date.

Children: Covert Human Intelligence Sources

Lord Kennedy of Southwark Excerpts

Thursday 13th September 2018 Lords Chamber

[Baroness Williams of Trafford]

I thank the noble and learned Lord for our conversation on this matter. Of course, that would require a change in the legislation, but we consider that this enhanced authorisation, which has been in place for 18 years and approved under the leadership of successive Governments, is robust. It is subject to enhanced safeguards and strong and effective oversight. It should command confidence.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, can the Minister tell the House how the safety of the child is ensured when they are put in these dangerous situations where serious criminality is suspected of taking place? That can include the children providing information about their parents and other close family members to the authorities.

[Baroness Williams of Trafford]

The noble Lord asks the right question. The child’s safety remains paramount. Enhanced risk assessments are required before the CHIS is tasked and are reviewed and updated throughout the duration of an authorisation. They are also updated after an authorisation is cancelled where contact with the CHIS is maintained. In the case of children aged 16 to 17, the law recognises that these assessments must be done on a case-by-case basis. Therefore, the presence of a responsible adult may or may not be required at that stage.

Windrush

Lord Kennedy of Southwark Excerpts

Wednesday 12th September 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I cannot second-guess the thinking behind some of the decision-making, but it might be to protect some people’s names. However, as I have just said, the Prime Minister has committed to publication, whether in a redacted form or not.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, on the compensation scheme that is out for consultation, has the Home Office considered emergency payments to those who have been treated wrongfully and unfairly? I am thinking particularly of those in hardship.

[Baroness Williams of Trafford]

The noble Lord brings this up again and it is an important point, because we have heard anecdotal evidence of hardship. The Home Secretary recognises that. His immediate priority has been to help some of those affected to establish their immigration status but also to support people in advance of the compensation scheme being put in place. Where there is an immediate need—he outlined such a case to me the other day—we are supporting people to access housing and benefits and deal with immediate problems while removing immigration obstacles to their finding work. In addition, the noble Lord might want to know that we have signed an agreement with Citizens Advice, which can provide some of the professional bespoke advice that people might need.

Immigration Policy: Children and Parents

Lord Kennedy of Southwark Excerpts

Monday 10th September 2018 Lords Chamber

Asked by

[Lord Kennedy of Southwark]

To ask Her Majesty’s Government what assessment they have made of the extent to which the implementation of immigration policy has led to the separation of children from their parents.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the family Immigration Rules and the policy on exceptional circumstances provide a clear basis for considering applications to remain in the UK. Individuals with no leave to remain are expected to leave voluntarily. We may enforce their removal if they do not. Our family separation guidance makes clear that staff must consider the best interests of any children, including their needs and caring arrangements, before taking enforcement action.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, how many children are presently separated from their parents or carers in the UK as a result of decisions taken by the immigration authorities to implement the policies of the Government?

[Baroness Williams of Trafford]

I am afraid that I cannot provide the noble Lord with that exact detail, as it is not available. However, we have done dip sampling in the cases of 84 foreign national offenders from July 2017 to July 2018, and two family separations were detected. It is not clear whether they were temporary or whether we were seeking to remove one parent from the UK.