Social Welfare Law Cases: Legal Aid

Lord Kennedy of Southwark Excerpts

Monday 16th May 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, a fundamental principle of our courts is that they are open to all. If people choose to spend their money in a particular way, then the courts permit them to do that, but the Government spend on average £1.7 billion on legal aid. That is a figure which we have under review and are constantly working on it. We acknowledge the importance of this area.

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

My Lords, the pilot scheme put forward by the Government seeks to quantify the benefits to individuals, their support networks, the Government and, ultimately, the taxpayer. Those seem very sensible aims and I support them. But how is this to be achieved and taken forward, with the access that the noble Lord referred to in his first Answer, when the number of providers of these services has been reduced by a third and in some areas we have a complete desert of providers?

[Lord Stewart of Dirleton (Con)]

The noble Lord makes an important point. We understand that there are areas where there are no providers, but perhaps I may offer him this assurance: the Legal Aid Agency keeps the matter under constant review and looks to engage with new providers where there are none. No part of England or Wales is without access to legal advice, because of the existence of a national telephone helpline, which can be drawn upon by people who require to access legal aid and assistance who would not otherwise have that available to them.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Kennedy of Southwark Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

I have a great deal of sympathy for the noble Lord’s amendment because it highlights the unworkability of granting immunity in advance through a criminal conduct authorisation. However, our position is that the police should not be allowed to grant legal immunity to commit crime or, indeed, to say that something that clearly is a crime is no longer a crime—whether in advance or, as the amendment suggests, after the event. For that reason, we cannot support the amendment.

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

My Lords, Amendment 50 in the name of the noble Lord, Lord Davies of Gower, seeks to amend the Bill to allow for a criminal conduct organisation to retrospectively authorise action if it was to save someone from harm. Clearly, the noble Lord speaks with considerable knowledge and experience from his time as a serving police officer. I have great respect for the work that he has done in the past, and I pay tribute to those brave officers whom the noble Lord referred to, who every day put themselves at risk of considerable harm to protect us and keep us safe, and who also work to turn people so that they become informants. As the noble Lord, Lord Paddick, said, the whole question of child CHISs has been discussed, and we will return to it on Report. These are very serious issues.

So I see the point that the noble Lord is making, but we should not use this Bill, when it becomes law, to retrospectively authorise conduct. That would not be right. I see the point that the noble Lord, Lord Paddick, made, but on previous conduct we have a position now, and that must be the position going forward. I do not see this Bill being used for what the noble Lord seeks to do. I hope that the Minister when he responds will set out the Government’s thinking on this. I hope he will say that they do not support the amendment as it stands, because it would not be the right thing to do, but will set out carefully how the Government will address this issue in the future

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, my noble friend Lord Davies has called for the Bill to enable an authorising officer retrospectively to authorise conduct in certain situations. The noble Lord referred to his experiences in the field, as it were, and it will have been obvious to all noble Lords that he drew on a considerable wealth of practical wisdom which informed his thoughtful contribution to this debate.

We on this side thank him also for his thoughtful engagement with the Minister in the other place on this matter. However, while I understand the concerns behind this amendment, it is not the intention of the Bill to allow any retrospective authorisations. All criminal conduct authorisations are granted by an experienced authorising officer, who will scrutinise each authorisation to ensure that it has strict parameters, that it is necessary and proportionate to the threat it seeks to disrupt and that the criminality authorised is at the lowest level possible to achieve the aims of the operation.

The noble Lord, Lord Kennedy of Southwark, and other noble Lords asked for an outline of the Government’s position. It is clear that this must be a matter of balancing. We consider that, by allowing retrospective authorisations, we remove the ability of the authorising officer to scrutinise the criminal conduct before it takes place, or we remove from the centre of our consideration that advance consideration. While I share the sentiment that we would not want undercover operatives to be placed in difficult positions simply for acting in the public interest, none the less, one of the key components in the present arrangement is control. The authorising officer must have confidence that proper thought has been given to the consequences of the authorisation, and we do not believe that an after-the-fact analysis, when the activities were not under the control of the public authority, should be retrospectively authorised where an authorisation has such an important legal effect.

As now, in the rare situation described here, authorities will make their assessment of the public interest in relation to the actions of the CHIS, the undercover operative, and rely upon prosecutorial—and, ultimately, judicial—discretion, which is no small thing, if I may draw on my own experience and set it against the experiences of the noble Lord, Lord Davies, proposing this amendment, the noble Lord, Lord Paddick, and others who have spoken. I repeat that it is a matter of balance of important considerations. We consider it important—indeed, essential—to emphasise that illegal criminal conduct should be authorised in advance of any actions.

The noble and learned Lord, Lord Morris of Aberavon, sought to explore two questions in particular: how likely a situation is to arise where conduct would be sought to be justified retrospectively, and how often has it arisen in practice? To address those matters, it is appropriate to refer again to the code of practice, which has been a matter of discussion before your Lordships earlier in Committee. Referring to the code of practice, which has the force of law, your Lordships will see that while criminal conduct authorisations must be specific in nature and contain clear parameters, they will not be granted in terms that are too narrow. I refer your Lordships to chapter 7 of the code of conduct in that regard. As to how often these matters have been raised in the past, I cannot provide the noble and learned Lord with specifics on the matter, but I will undertake to explore the matter with him in writing.

The noble Lord, Lord Paddick, presented a highly specific example, drawn no doubt from his experience in the field, in the same way that the noble Lord, Lord Davies of Gower, drew on his. There is a sense that such a very specific example itself allows us to emphasise the need for discretion in the matter, to acknowledge that the situations in which CHISs will be exposed to danger are very broad and to allow me to reply with a degree of confidence that the very breadth of the situations which may possibly be encountered is such as to necessitate the anticipatory use of the authorisations we seek to put in place.

I say further that, in the course of preparation of the Bill, the matter was discussed with operational partners who would control and handle the operation of such persons in the field. They have told us that they are content that the approach which we seek to take is the correct one.

--- Later in debate ---

[Lord Anderson of Ipswich (CB) [V]]

My Lords, like the noble Lord, Lord King, whose experience I respect and whom it is a pleasure to follow, I have no objection in principle to the issue of criminal conduct authorisations by bodies, other than the police and agencies, that are engaged in the investigation of serious crime. That, I would suggest, should, however, be on three conditions: that those bodies have demonstrated a real need for that power; that they are properly trained to use it; and that there are sufficient safeguards against its unnecessary or heavy-handed use.

Before coming to those conditions, may I make two practical points in favour of granting these powers to those whose investigations make them necessary? First, if such bodies are already running CHIS, there is a strong argument for continuity of control. I have made in other contexts the point that the decision to issue a criminal conduct authorisation is very much part and parcel of the CHIS tasking exercise, and best taken in the knowledge that only prolonged contact can bring of the nature of the investigation and the personalities and risks involved. Yes, one could require the police to be brought in to grant the authorisation, but the involvement of a second authorising body risks a dilution of that experience and is no guarantee of better decision-making.

Secondly—this point arises from contact I have had with those whose job it is to inspect the use of the powers on the ground—it might be rash to assume that a request to the police to issue an authorisation on behalf of, let us say, the Food Standards Agency or the Gambling Commission would necessarily be allocated the resources or progressed with the urgency that might be required. That would be regrettable, but questions of priorities do arise when one organisation is asked, effectively, to do a favour for another.

Turning to my conditions, the first is that each of these bodies should have demonstrated a real need. I shall listen with great interest to the Minister, but I do understand the difficulties in explaining that sensitive topic in a public forum. Accordingly, it seems to me that this is one of the questions that might usefully be the subject of an independent classified review by some respected person such as the Independent Reviewer of Terrorism Legislation, whose conclusions could be presented to Parliament.

That is a procedure for which there are precedents in the national security field. The noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Russell of Liverpool, and I have each proposed it in previous debates on this Bill, and the noble and learned Lord, Lord Thomas, has written to Ministers about it in some detail. If, as I assume, this Bill may not reach Report stage until the new year, it may still not be too late for this to happen; perhaps the Minister could comment. Today’s offer of meetings with major users of the power is welcome, but not, I think, a substitute.

The second condition relates to training. There is plainly a need to mitigate any risk that bodies that use these powers only rarely will tend not to use them wisely, or in accordance with accepted current practice. So I assume that those designated as handlers, controllers and authorising officers in the other authorising bodies will be trained alongside their police equivalents. Perhaps the Minister will confirm that this is the case, and confirm also that they will not be excluded from elements of that training that could at least arguably be relevant to the exercise of their functions. This was an issue that I encountered in another context during my investigatory powers review A Question of Trust.

The third condition relates to safeguards. I have been left in no doubt by Ministers that the Government have set themselves firmly against prior independent authorisation, for reasons that I have myself described as understandable. In that context, I am grateful to the Minister for her indication last Tuesday that the Government are open to discussions on the concept of real-time notification of CCAs to judicial commissioners. The real-time element is crucial, because it is clear in this field that prevention of abuse, where possible, is always going to be easier than cure.

I hope that in the Minister’s response today, or at any rate as part of those welcome discussions, we will be assured that less frequent users, in particular, will be required where possible to pre-consult with a judicial commissioner. There is a precedent for this under the Investigatory Powers Act in the power to submit proposed novel or contentious uses of other covert powers to IPCO for guidance. Such a requirement would help ensure that any uncertainties are resolved, and that any authorisation that may subsequently be issued by those bodies is consistent with best practice.

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

My Lords, Amendment 63, moved by the noble Lord, Lord Paddick, and other amendments in this group seek to draw attention to the range of organisations that will be given powers to grant criminal conduct authorisations to individuals involved in criminal conduct. There is a list of organisations on page 4 of the Bill, and I found it surprisingly long. Perhaps I just did not know how many organisations were involved in this activity.

Could the Minister tell the House how many organisations are currently involved in intelligence and providing authorisations after the event, and also set out for us why they in particular need those powers? Some colleagues have argued that these should be matters just for the police and the security services—that they should have the powers and other organisations should come to them for approval and authorisation. On the face of it, that could seem quite a sensible way forward.

For example, why do the Gambling Commission and the Environment Agency need these powers? There may well be very obvious and sensible reasons why they do, but it is important that those reasons are set out clearly. Initially, restricting the list could appear attractive, because these are serious powers, and we want to ensure that people are exercising them properly.

I think the noble Lord, Lord Cormack, expressed views held across the whole House about the concern here. We need to take on board, whatever the House decides in the end, that there is concern about the use of these powers, and they must only ever be used proportionately and by a minimum number of organisations.

My noble friend Lord Sikka drew the attention of the House to another point, and other noble Lords mentioned it as well. It is not due to this Minister, or to this or any other Government, but the risk that we run when we grant powers is that they are given to Governments of the future as well. Things can change. We might like the Minister who is in position today, or whoever has a particular position, but they will not always be in that position. We are granting powers to a potential range of Governments in future—and why are they necessary?

Then there is the whole question of statutory instruments. I have regularly attended debates on them, and it is quite frustrating the limited amount of power that we have as a Parliament, or as the House of Lords, to deal with them. There are many times when you want to vote them down, but you do not because you recognise that the fatal Motion is not often the way to do things. So you are limited as to what you can do—that is a fair point.

We need a very detailed response from the Minister, explaining why these organisations in particular need these powers, whether there are others, and why the Government need the power to extend that further under the limited provision of a statutory instrument, and not through primary legislation.

I accept the point that the noble Lord, Lord King of Bridgwater, makes: people need to be kept safe in this country and lots of organisations are doing very difficult and dangerous things. No one is against that. Equally, the noble Lord, Lord Anderson of Ipswich, made the point about the real need for training and safeguards. That seems sensible to me; if any organisation is to have these powers, you have to be confident that it will use them properly, proportionately and effectively.

I look forward to the Minister’s response. There are a number of areas to cover here for the House.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Kennedy of Southwark Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I would like to say a few words in support of Amendment 19 and make a brief comment on Amendment 20.

Amendment 19 is an issue of principle, rather than detail. Most of what I want to say has already been said by the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd. The only point I add is this: when one is considering imposing a criminal sanction on an individual, you have to have regard to the effect of the sanction on the individual in question. For many people, to have a criminal conviction against them is a major disadvantage in future life, particularly for people seeking further employment who have to provide references to their criminal background, if any. It may also affect travel, particularly in countries which deny travel to people who have criminal convictions. Although it may be easy to say that a sentence of not more than two years is not much to trouble about, it is actually something to trouble a great deal about.

That is why the way in which these offences are created, and the extent to which the wording of the offence can be scrutinised, is so very important. It is not a light matter; it is a matter of great importance to the individual. For that reason, there is an issue of principle, which I think lies behind the noble and learned Lord’s amendment.

I hope that the noble and learned Lord, Lord Falconer, will forgive me for saying that the framing of Amendment 20 creates a rather strange situation for the devolved institutions, and the legislatures in particular. The way in which Clause 2 defines the “appropriate national authority” is simple, so far as England and Wales are concerned, because it is simply the Secretary of State. But when you come to Scotland and to Northern Ireland, there is a choice: in Scotland, it is either the Scottish Ministers or the Secretary of State for Scotland; and in the case of Northern Ireland, it is the Northern Ireland department or the Secretary of State for Northern Ireland.

I raised the point at our first sitting that there is some doubt as to what exactly the function is of each of these two people. Take Scotland as an example. In what situations is it appropriate for Scottish Ministers to act alone, and when is it right for the Secretary of State for Scotland to act alone? If one is contemplating the use of the super-affirmative procedure, that is available only to the Secretary of State, because anything done by Scottish Ministers can only be the subject of an instrument laid before the Scottish Parliament. The same is true for the Northern Ireland department: it cannot use the UK procedure because its instruments have to be laid before the Northern Ireland Assembly.

I make this point in case, by any chance, this amendment is to go further. I am not sure how far the noble and learned Lord wants to do that, but just in case he does, a bit more thought is required as to how exactly one is to relate this amendment to the position in the devolved Administrations. The way I left it at the first sitting was that I would much prefer that the Secretary of State for Scotland was not involved, and that the question of implementation—a devolved matter anyway—was left with Scottish Ministers. But one way or another, the situation will need to be clarified. The presence of this amendment gives me a chance to reiterate my point that there is a lack of clarity in the way that the Bill is framed, as far as the relevant authority is concerned.

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

My Lords, Amendments 19, 20 and 21 are probing amendments tabled by my noble and learned friend Lord Falconer of Thoroton. I welcome the amendments, as we have a chance to debate these important issues again.

As a general rule, I do not like Governments taking Henry VIII powers. It is much better that primary legislation is made or changed, and that both Houses debate and decide on the issue, rather than procedures such as these, which are not a proper substitute, whether they use the affirmative or super-affirmative procedure.

That brings me on to Amendment 19, moved by my noble and learned friend. This is a particularly important amendment as, without it, criminal offences could be extended or amended, and the penalties for offences could be changed. That is unacceptable. I hope all noble Lords will agree that it is a matter for Parliament to decide, and that there is no justification for doing otherwise. I would therefore like to hear from the noble and learned Lord, Lord Keen of Elie, the justification for not accepting the intent of this amendment, if that is the Government’s position this afternoon.

The noble Lord, Lord Thomas of Gresford, made the point that this is no way to make new law and new offences. I very much agree with that. There should be no cases of new offences having penalties agreed without the consent of Parliament, where that would normally be the case. But these powers could be used to circumvent that.

My noble friend Lady Kennedy of Cradley made the point that we have seen very few of these types of agreements in the last 60 years, and that the powers and procedures proposed here do not seem justified in that case. My noble friend also made reference to reports that statutory instruments in this area risk being struck down by the courts. It would be good if the noble and learned Lord, Lord Keen of Elie, could address that point when he responds to this debate shortly.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, Amendment 19 is a very important amendment to probe the Government on what they anticipate the application of Clause 2 will be. I very much enjoyed some of the other contributions today, particular that of the noble Lord, Lord Thomas of Gresford, which was particularly scathing and deserves to be in a newspaper somewhere. I loathe the Government trying to make these power grabs. The idea that they can just extend the concept of a crime is inherently damaging to democracy.

In particular, the key question that I need the Minister to address is in what circumstances he foresees a private international law agreement creating or amending criminal offences. As I understand it, the Bill and the agreements that it seeks to implement are entirely focused on the resolution of disputes between individual people or companies. Can he tell us what situations would give rise to any criminal liability, as opposed to civil liability? Does he anticipate that we will attach criminal fines and imprisonment to civil disputes? If there are not any good examples, why is this provision contained in the Bill and should your Lordships’ House not amend the Bill exactly in the way proposed by the noble and learned Lord, Lord Falconer of Thoroton?

Prisoners (Disclosure of Information About Victims) Bill

Lord Kennedy of Southwark Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

I appreciate that with many prisoners currently serving life sentences or sentences of extended degree there will never have been a Newton hearing. However, if the provision that I suggest in my amendment were adopted, it would encourage judges, who could be given directions by the senior judiciary to follow that course, first, to say that they would deal with the defendant on the basis that he was culpable and, secondly, to hold a Newton hearing. In future, this might be a much more satisfactory way of dealing with matters than the current situation, in which the Parole Board looks at the matter with a lower standard of proof many, many years later.

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

My Lords, I support Amendment 2 and the other amendments in the name of the noble Baroness, Lady Bull. I contributed to the Second Reading debate on the Bill a few weeks ago in the Chamber, where the noble Baroness made a powerful speech. Like other noble Lords, I welcome the Bill and pay tribute to the campaigners who have got us to this point.

The amendments before us allow us to have a debate on the detail of the issue in question. The balance that has to be stuck here is between justice and the denial of a funeral to a victim’s family, which brings further pain and distress to a family denied the ability to grieve properly, a prisoner with mental health issues and respect for human rights. These are extremely difficult issues that have to be approached with thoroughness. Decisions being made clearly and victims being listened to are an important part of the work that we expect the Parole Board to do.

The Parole Board has to take account of several factors in making its decisions. I have never met a member of the Parole Board, unlike my noble friends Lord Blunkett and Lord Ponsonby, but the Parole Board deserves our support in the difficult job that it is asked to do. I do not doubt that it undertakes its responsibilities with the utmost seriousness, making difficult and important judgments independently, and I wholeheartedly endorse the comments of the noble and learned Lord, Lord Hope of Craighead, in that respect.

The noble Baroness, Lady Bull, has posed a number of points for the Minister to address about the state of mind of the prisoner at a particular time as well as the prisoner’s mental capacity. I very much see the point that the noble Baroness is making: that these issues should be taken into account at the time of the hearing. I look forward to the Minister’s reply on these points and on other points made by noble Lords.

[Baroness Watkins of Tavistock (CB)]

My Lords, I support the amendments in the second group in the name of the noble Baroness, Lady Bull, and the noble and learned Lord, Lord Hope, particularly in relation to Amendments 2 and 4, which are reiterated in subsequent amendments. I reinforce my full support for the Bill and congratulate the Government on bringing it forward.

I support the concept of removing any discretion to disregard non-disclosure by prisoners when Parole Boards are reviewing their cases. This is because there is a very small minority of people who may have severe mental health problems but who are also well able to give the impression that they have complete amnesia. I was interested in what the noble Lord, Lord Thomas of Gresford, said earlier about healthcare professionals believing what they are told by people with mental health problems. I actually worked in Broadmoor and introducing as part of the concept as a trainer that you should not read a patient’s records until you had got to know the patient a bit. That is sometimes quite shocking because you trust people but then find that significant things they have told you are in fact extremely inaccurate. So we must be clear that medics are not on the whole easily fooled by the very small minority of people who are able to display very significant selective amnesia.

Of much more interest to me at the moment in relation to this Act is that the Mental Capacity Act 2005 and its subsequent amendments, as referred to by other noble Lords, particularly the noble Baroness, Lady Barker, indicate that we have a growing population with significant acquired brain injury, severe psychosis and, of course, a range of neurodegenerative progressive disorders, known largely as the dementias, which mean that prisoners who have been in prison for 15 to 30 years may well have developed cognitive difficulty during the period of their imprisonment. When they then apply to the Parole Board, it is right that they have full access to a medical assessment in line with their human rights. I believe there will be a proportion of people who apply in this way who do not have sufficient cognitive ability at the time when they come to the Parole Board that they will be able coherently to remember the kind of issues that we have raised during this debate.

In summary, I support the approach of the charity Rethink Mental Illness that these amendments would provide an explicit reference to mental capacity, meaning that there would be consistency adopted by Parole Boards when reviewing individual cases. I would like to see the amendments supported, but I am also very aware that, in the review of the Mental Capacity Act, we were able to deal with some things by ensuring that they would be put into guidance for practitioners. That may be something to consider in relation to the amendments tabled by my noble friend Lady Bull.

Prisoners (Disclosure of Information About Victims) Bill

Lord Kennedy of Southwark Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 28th April 2020 Lords Chamber

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

My Lords, I first welcome my noble friend Lord Ponsonby to the Opposition Front Bench and make it clear that I fully support this Bill and its aims. I pay tribute to the campaigners, including, as we have heard, the McCourt family, led by Marie McCourt. They have sought this change to the legislation and, along with the families of the victims of Vanessa George, have enabled this to happen. It is thanks to them that the Bill is here. Hopefully, when it soon becomes an Act of Parliament, it will be able to give some comfort to the families of victims in future.

I also pay tribute, as have other noble Lords have, to my honourable friends in the other place—the Members for Plymouth Sutton and Devonport and for St Helens North—for their work campaigning with the families of victims, which has helped bring this legislation forward today. I also pay tribute to the Government for bringing the legislation forward, for putting it in their manifesto and following that through —we are all very pleased it is here. The Bill is fairly short, of course. It has two clauses that amend the Crime (Sentences) Act 1997 and address the release of prisoners under the Criminal Justice Act 2003. The noble and learned Lord, Lord Garnier, made a number of points. He is a respected lawyer and I am sure that the noble and learned Lord, Lord Keen, will respond to those points. These detailed questions of law need to be addressed and I hope we will get a response to them.

In respect of the crime of murder, as we have heard, the Bill brings into force provisions which have become known as Helen’s law. The noble and learned Lord, Lord Keen, referred to that in his opening remarks. In responding to the debate, will he set out in more detail for the House how this process will work, compared to the guidance given to the Parole Board previously, and this new statutory obligation to consider the non-disclosure about a victim’s remains? Would the Parole Board always have considered this question—I think it probably would—or might it not have considered the non-disclosure of victim’s remains because it had the discretion not to consider that matter?

Will the noble and learned Lord also address the situation where someone is convicted of the crime of manslaughter but is given a determinate sentence of some years in prison? Does he believe that the issue would not in effect arise, in that someone who was convicted of the crime of manslaughter and had refused to disclose what happened to the body would expect to receive a life sentence from the court, as opposed to an ordinary determinate sentence or an extended determinate sentence, which are, of course, covered in the Bill? For anybody given an ordinary determinate sentence, one would assume that the victim’s remains had been recovered, due to the nature of the crime they had committed attracting that type of sentence.

Will the noble and learned Lord, Lord Keen, address the fact that the Bill requires the Parole Board to consider the issue but does not prevent it deciding that someone is still suitable for release? In such a case, will he confirm that the powers of the Secretary of State in these circumstances have not changed but will stay as they are at present? Will he also set out where we are in respect of people convicted of murder but who do not admit their guilt and, in some cases, protest their innocence? What happens to them? Are they, in effect, in denial and not allowed to be considered? It would be interesting to find out.

My noble friend Lady Kennedy of Cradley made an important point about contacting victims and their families to seek their views before somebody is considered for release. Again, I hope the noble and learned Lord can address that point. It is very important because people move away over what can be a period of many years and contact with them can be lost. The possibility of their finding out through the media, including social media, is not something we would want to see in the future.

The Bill is important in helping the families of victims come to terms with the hurt and the grief. In that sense, the Government should be congratulated on bringing the legislation forward. On the other side, there is the issue of the mental health of some prisoners, and that of human rights, which must be a concern for all of us at all times. These are of course rights that murderers deny their victims and their victims’ families, but human rights are still important. Perhaps the noble and learned Lord can address that in his remarks. I look forward to his response in due course.

Queen’s Speech

Lord Kennedy of Southwark Excerpts

Wednesday 8th January 2020 Lords Chamber

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

My Lords, first, I congratulate the Government on their comprehensive win in last month’s general election. If nothing else, it allows for a period of stability in the coming years so that important issues can be addressed. I am always willing to support the Government if I think they have got matters rights, but I will always oppose the Government if I believe that, no matter how well intentioned, they are making the wrong call. That will be my job in this noble House in the coming years, as it has been since I arrived here 10 years ago.

The debate today focuses on home affairs, justice, constitutional affairs and devolved affairs. I intend to make some initial comments about the Bills in the Queen’s Speech in these subject areas. Anything I do not cover will no doubt be covered ably by my noble friend Lord Rosser and other noble Lords in today’s debate. I join the noble and learned Lord, Lord Keen of Elie, in paying tribute to the civilians and others at London Bridge for their bravery, and I offer my condolences to the victims and their families.

Some measures in the Queen’s Speech seem to be trying to fix the damage done by the coalition and Conservative Governments, an example being the recruitment of 20,000 additional police officers, to which the Minister referred. That still will not take us back to the level we had in 2010. I was pleased to see that the domestic violence Bill will return, and I hope it will become law later this year. Domestic violence is an evil, wicked crime, and the measures outlined in the Bill will make significant progress in protecting victims and bringing perpetrators to justice. The Bill will, I am told, place a legal duty on local authorities to offer secure accommodation to people fleeing violence. Perhaps, when she responds, the Minister will outline how her department is going to ensure that adequate funds are provided to cover this new duty. Just placing a new duty with no additional funding is not going to deliver the step change that we need to see, and with other measures we have been told too often that new obligations are to be brought but no additional funding, or inadequate funding, is provided.

I have similar concerns in respect of the serious violence Bill, in which it is proposed to create new duties for a range of agencies and encourage partnership working. I want measures in place to deter violence, but partnership working with local authorities, youth services and other agencies costs money. These bodies have not been immune to significant spending reductions in recent years, and without a significant increase in resources I do not see how the proposals will be delivered to any great effect. Will the Minister outline any specific measures she expects to be taken in respect of county lines? This is an area of great concern to many people.

From reading the briefing, the police powers and protections Bill seems to be something that has merit and that we could support. Providing additional support and protections to police officers, who undertake a most difficult but necessary job, is welcome. We will have to look in detail at what is being proposed versus what the professionals think is necessary. I recall that in the previous Parliament a Bill sought to protect all blue-light services and that one of the demands from the Police Federation was tougher penalties for spitting at officers. That was resisted by the Government; they would not be persuaded on this matter. We may need to look at that and bring it back in this Bill.

In respect of the Extradition (Provisional Arrest) Bill and the foreign national offenders Bill, we will have to wait for more detail on the proposals before taking a view, but we need to have proper safeguards in place to eliminate injustices and ensure that we are getting the balance right. I note that one of the first acts of the new Government was to abandon protections for child refugees in the withdrawal Bill. I hope that is not indicative of the asylum and immigration policy the Government intend to pursue.

On the proposed espionage legislation, we will see what comes forward, but it is right to review and update our legislation and protections to protect the United Kingdom from the actions of foreign agencies and powers that want to do us harm through industrial espionage or other threats to our security, safety and economic well-being, and we will support the Government on those matters.

Moving on to the justice proposals, I think we can all sign up to the Government’s aim of a fair justice system that keeps people safe, although after that point there may be differences in how that is delivered and what that means. In both the counter-terrorism Bill and the sentencing Bill, it is just not enough to say that we want to lock up people who have committed offences for even longer. I want sentences that reflect the crime and the community’s and public’s revulsion, but also, while people are in prison, I want real work to be done with them to address their offending behaviour. For very serious terrorists and criminals who commit other appalling offences, I fully accept that that is easier said than done, but it must be the other side of the coin in these matters.

Locking people up for longer and longer will, on its own, not address serious offending and protect us. It is also extremely costly for the taxpayer. Perhaps the Minister can tell us what work has been done to access the best strategies for tackling terrorists and other dangerous offenders, as well as looking at other programmes in Europe and beyond to deal with such matters.

The Prisoners (Disclosure of Information About Victims) Bill seems very worthy of our support. Ensuring that prisoners make proper progress and rehabilitation is a good aim, and if certain facts that would help bring closure to victims and/or their families are not disclosed to the authorities by serious offenders, that should be considered by the Parole Board when considering an application for a prisoner’s release. In many ways, it is surprising that that is not done already.

The proposals for the Divorce, Dissolution and Separation Bill seem to be progress, although I am not sure that they will satisfy the noble Baroness, Lady Deech. I am very much of the opinion that the more we can keep lawyers and the courts out of divorce proceedings, the better for everyone—I am thinking of divorcing couples’ pockets.

On the constitutional matters contained in the Queen’s Speech, the creation of a constitution, democracy and rights commission is something on which the Government must be very careful. They won a large majority in the general election and will be able to get their business through the House of Commons with no problems whatever, but they must allow Parliament, the courts and the judiciary to scrutinise, challenge and, in some cases, strike out their decisions. We live in a democracy and all these parts of the state, along with a free press, are important pillars that keep matters in check. If things are not respected and treated carefully, there will be grave risks for our country, and the Government must always keep that in mind.

I very much support the repeal of the Fixed-term Parliaments Act 2011. I opposed it in the first place and it has proved to be dreadful legislation. It has been totally ineffective. Even when it was working and prevented the new Prime Minister calling an election, I recall hearing on a Saturday night that the Liberal Democrats and the SNP were going to offer him a Bill to call an election days after he had lost a vote under the Act. I thought, “What nonsense”, and then I heard that the leader of the Opposition was also going to back the Bill. The rest is history, and the only winners have been the Prime Minister and Nicola Sturgeon, the First Minister of Scotland.

Giving the Prime Minister the power to call a general election, which has been the traditional way here in the UK, is something that we should go back to. From recollection, it is very obvious when there is going to be an election. Most Governments who are doing well in the polls will seek a dissolution of Parliament at around the fourth anniversary of their election. If they are trailing in the polls and doing badly, they will carry on into the fifth year and probably quite near to the end of their term of office, unless of course they are defeated in a no-confidence Motion, which is not going to happen any time soon.

In respect of measures to be introduced regarding elections and postal votes, I would prefer there to be much more comprehensive legislation in respect of elections. I know that the noble Lord, Lord Young of Cookham, will support me on that. I think he agrees with me that our election law is not fit for purpose.

I also think it is time for the Government to take a look at the role and function of the Electoral Commission. It has made a difference but we need to ensure that what it does in terms of all our election law is right. We have plenty of time to do that and I hope that the Government will use the coming period to make sure that it happens. I would appreciate a response from the Minister on that as well.

With that, I draw my remarks to a close. I look forward to the rest of the debate, with contributions from many interesting speakers. I also look forward to the maiden speeches, which we will be hearing shortly.

Queen’s Speech

Lord Kennedy of Southwark Excerpts

Monday 21st October 2019 Lords Chamber

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

My Lords, I draw the attention of the House to my relevant interest in the register as a vice-president of the Local Government Association.

I am delighted to see the noble Lord, Lord Bourne of Aberystwyth, in his place. This is my first opportunity to pay tribute to the noble Lord. I always enjoyed our friendly debates across the Dispatch Boxes. He was engaging and courteous at all times, both in and outside the Chamber. He was a very able Minister and is a real loss to the Government. I know he will continue to make informed contributions to your Lordships’ business, as he will today.

My focus today is a number of the proposals in the Queen’s Speech, covering areas in which I will have some involvement in your Lordships’ House in this Session of Parliament—however long it lasts. While this Session continues, and until Parliament is dissolved, I am absolutely committed to working with those on all Benches to improve the Bills that come before us. As the noble and learned Lord, Lord Keen of Elie, has told us, the debate today will cover home affairs, justice, local government, devolved affairs and constitutional affairs. I have seen only one of the Bills that is to be brought before us. With that proviso, I intend to set out my initial thinking and how I hope we will progress. My noble friend Lord Rosser will cover the areas that I do not reference. I look forward to all contributions from noble Lords to today’s debate.

Generally, I welcome measures that seek to address crime, in particular violent crime and thereby strengthen the public’s confidence in the criminal justice system. The types of crime perpetrated, and how they come about, change over time. We therefore need to update our response regularly and consistently. But addressing crime is about not only punishment but rehabilitation and addressing the problems in the first place, before we get anywhere near the involvement of the police, prisons or probation services. Longer prison sentences might get the Government a few favourable headlines in some of the tabloids, but do they punish, address offender behaviour and help with rehabilitation? That is the question we should be asking. Any Government who get the balance right and make positive inroads to both addressing offender behaviour and delivering proper rehabilitation will get, and truly deserve, praise for making our country a safer place, and save the taxpayer many millions of pounds.

Looking at some of measures announced in the Queen’s Speech, I am pleased that the Domestic Abuse Bill is making progress. I hope it can be speedily passed into law. If we do nothing else before this Parliament is dissolved, notwithstanding the issues around Brexit, I hope that this Bill will become an Act of Parliament. Domestic abuse is a wicked crime, perpetrated by those closest to you—those who should be protecting you, not making your life a living hell. There is no stereotype of a domestic abuser; they come from all walks of life. What happens to victims is wicked and evil, and totally unacceptable. Those who commit such crimes must understand that they will face the full force of the law, while victims must be confident that they have the protection of the state in all its forms.

From the Opposition Benches, I have been working hard, along with my noble friends Lord Rosser, Lady Gale and others, to get this important Bill passed into law. When the Bill arrives in this House, I will raise the issue of victims in some parts of the country being charged by GPs for a letter to confirm their injuries and that they have been a victim of domestic abuse, so that they can get access to services. That is terrible. It is wrong and the Government should put a stop to it. Perhaps the noble Baroness, Lady Williams of Trafford, will address that issue when she responds to the debate.

I welcome measures that will further support victims of crime, and the contributions of the noble Baroness, Lady Newlove, who is not in her place, will be important to those debates.

I hope the Government will take up the care and support of victims of modern slavery. The Private Member’s Bill of the noble Lord, McColl of Dulwich, was lost in the other place, which is most regrettable. It will be good if, in this Session of Parliament, the care and support afforded to victims in England and Wales is brought up to the same standard that victims enjoy in both Scotland and Northern Ireland.

The Prisoners (Disclosure of Information About Victims) Bill puts on a statutory footing a practice already in place. Criminals need to understand that their failure to provide the most basic closure to victims and their families will be quite properly taken into account by the Parole Board when they are seeking release from prison.

I agree with and welcome many of the proposals in the Serious Violence Bill. I support a multiagency approach to tackling the root causes of violent crime. An emphasis on intervention with young people and an acknowledgement that law enforcement alone cannot tackle violence is correct—I agree with every word—but that means the involvement of social workers, youth workers, community workers, teachers and other parts of the local government family, along with the voluntary sector. However, it will be no solution to the problem if further requirements and burdens are placed on local authorities without commensurate increases in the resources they have to deliver these new obligations. Unfortunately, it has been a recurring pattern for the Government to do that. We have heard time and again from the Government the standard response that local authorities have the powers to tackle these issues. Maybe they do, but they do not have the resources and that is a big problem.

On social care increases, too many times we have seen that when we have been allowed to increase resources it comes in the form of approval to increase council tax rather than in direct government grants. As noble Lords will know, council tax is a regressive form of taxation.

The proposals to recruit 20,000 new police officers are welcome but have to be seen in the context of the Government cutting a similar number of police officers since 2010. Experience has been lost and I have a Question on tomorrow’s Order Paper about the relationship between the number of officers and the number of crimes committed. The Police Protections Bill looks like a measure that we on these Benches can fully support but, again, the detail will be as important as recognising police bravery and supporting officers. What is proposed in the Bill needs to make a positive difference, not only in words but in deeds and proper actions.

Turning to the Extradition (Provisional Arrest) Bill, criminal activity does not respect borders and boundaries, and so making things as difficult as possible for criminals and making sure that they cannot evade justice is to be supported. It is, though, disappointing that these measures may have to be used if we no longer have access to the European arrest warrant, which has been a success in bringing people back to the UK—and in sending them elsewhere in the European Union if they are hiding in the UK—to face justice. Clearly that is another of those Brexit dividends we were not told about. This legislation will need careful scrutiny to ensure that we get the balance right.

Again, in principle I welcome the Divorce, Dissolution and Separation Bill. The noble Baroness, Lady Deech, has sought through private Members’ legislation to improve divorce proceedings many times and I will fully support her in anything she does to make these matters better.

The White Paper on English devolution, referred to in the Queen’s speech, seems, disappointingly, to carry on with the same confused patchwork of local government reforms that started with the Cameron Government. This is not a real devolution of power. I see no devolutionary zeal, only tired tinkering, and that is disappointing. The Labour Government elected in 1997 made radical changes to the governance of the United Kingdom. The one country that did not see radical change—other than the establishment of the Mayor of London and the London Assembly—was England, which still has very a centralised form of government. I do not see much progress here to deliver a new settlement.

There has been much talk of measures around electoral integrity. I want measures in place that ensure that people who are entitled to vote are able to and to eliminate voter fraud, but any measure to require that identification be produced at the polling station must be introduced carefully and proportionately. From all the evidence I have seen, voter ID fraud is minimal. We cannot have hundreds more people who have the right to vote being refused it at a polling station. That would be totally unacceptable. We actually have a voter underregistration problem in the UK. Any measures brought in by the Government should address that problem as well as part of any voter integrity package, along with measures to make our elections safe from abuse and from unscrupulous campaigners who seek to benefit from the inadequacies of our electoral law, so that elections are free and fair. The noble Lord, Lord Young of Cookham, who is not in his place, has agreed with me numerous times at the Dispatch Box that our present electoral law is not fit for purpose and in need of urgent reform. That urgent reform should be put in place before we have a general election. The Government will have the full support of the Opposition to do that quickly if they choose to act on these matters, which they should do urgently.

In concluding, I repeat the point I made at the start: I will engage positively with the Government and all Benches in this noble House to improve proposals that come before us for consideration. When I agree with the Government, I will happily say so and support them, and where I differ, I will seek to persuade them of the soundness of my arguments. I always reserve the right, however, to divide the House if all else fails. I look forward to an interesting debate today and to the Minister’s contribution at the end.

Northern Ireland Executive: Update

Lord Kennedy of Southwark Excerpts

Thursday 6th September 2018 Lords Chamber

[Lord Duncan of Springbank]

The noble Lord, Lord Dubs, is quite correct. Statements from me will not solve the problem; they never can. All I believe we can push for now is to put in place the right structures that will help to move this forward. That is why I have said that my right honourable friend the Secretary of State for Northern Ireland is open to there being a chair from an external area who can take a role in this. As I said, it is not off the table; it is now under active consideration. That is an important realisation. Whether the noble and right reverend Lord, Lord Eames, wishes to put his hat in the ring remains to be seen.

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

My Lords, having the Assembly, devolution and the Executive restored is very important. Twice in this Chamber recently, the noble Lord, Lord Cormack, has talked about bringing the Assembly back. I do not think the Minister has addressed that point in particular. Is there a legal impediment to that—yes or no? If there is, fine, but if not, the Minister also said that nothing is off the table. We need to know whether the Government are considering that. If it would be useful and helpful, maybe we should think about that. Will the Minister address those specific points?

[Lord Duncan of Springbank]

I always like being asked specific points. I will correct this if I stray from what I understand to be the case, so I ask for a certain tolerance in what I am about to say. Much will depend on the interpretation of the standing orders that the Assembly has constructed and drafted as to whether it can meet in a different formation or formulation. At present that has not happened, but we are having to think afresh. So if there is indeed a role as part of a functioning wider body, which may draw on trade unions, churches or others to bring those voices to bear—whether it meets in a different room or in a different place entirely—none of these things can be dismissed. There needs to be an opportunity for those voices to be heard, but—this is the important point—voices that continue to repeat the worn phrases of the past and bring nothing to refresh the future are no advantage to us in this regard. We need to have new voices with a new focus. If we cannot have that, bringing Assembly voices into it would be a retrograde step—but if they can think afresh, those voices will be welcomed to the wider debate. I will correct that if I am not fully accurate.

Arbitration and Mediation Services (Equality) Bill [HL]

Lord Kennedy of Southwark Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, along with other noble Lords I offer my congratulations to the noble Baroness, Lady Cox, on securing a Second Reading for her Bill today. The noble Baroness is a highly respected Member of your Lordships’ House with an enviable record as a campaigner, a fighter for justice, someone who does not shy away from tackling the big issues and, as the noble Lord, Lord Cormack, has said, someone who will not be put off by a brush-off from the Front Bench.

The Bill seeks to make provision regarding the application of our equality legislation to arbitration and mediation services. The effect would be to prevent providers of such services doing anything that would constitute discrimination, victimisation or harassment on the grounds of sex. I agree very much with my noble friend Lady Donaghy when she made the point that women have had to fight for equality, so that where women are relying on custom and practice, we have a long way to go. Sometimes the law needs to step in and take action to ensure that matters do not start going backwards.

As we have heard, the Bill seeks to achieve these aims by inserting a new subsection into the Equalities Act 2010 and the Arbitration Act 1996. The 1996 Act allows parties to have their civil disputes arbitrated outside the civil court system, although the court can set aside the decision if the arbitration does not comply with accepted standards of fairness and procedure as set out in the Act itself. With her vast experience as a former chair of ACAS, my noble friend Lady Donaghy talked about the importance of arbitration and the need for both parties to be able to agree freely. I concur with the comment of the noble Lord, Lord Carlile, about the value of arbitration and its particular value when it is undertaken by a faith group, as well as his words about the rights of citizens to take action where such bodies act contrary to the law of the United Kingdom.

The Bill also seeks to provide important clarification that discrimination includes treating evidence given by men as being of greater value than that given by women. It would also give powers to the court to set aside any order based on a mediation settlement agreement or other negotiated agreement if it believes that, on the evidence before it, one party’s consent was not genuine. There are further provisions in the Bill that place obligations on public bodies to inform individuals who have been married under certain religious practices or those living in polygamous households that they may be without legal protection.

We live in a great country. For all our problems, and they may be few or they may be many, whatever your viewpoint is on particular issues, justice, tolerance, respect for the rule of law and equality are all things that this country both stands for and stands up for. We have the right to campaign, to demonstrate, to have our say and to be treated equally by our fellow citizens, as well as having a fair chance at taking the opportunity to share in and be protected by the law equally, no matter who we are. That is all about being a citizen of the United Kingdom and living in this country.

The Bill does not state that it applies to any one faith or religion. As the noble Baroness, Lady Cox, has made clear to noble Lords, it applies to all faith groups equally. It may be that at certain times the protection of our freedoms that this Bill seeks may be used by a particular faith group more than others. I am very clear that discrimination against women and girls is wrong. Where Muslim women and girls are being discriminated against and denied their rights, that is wrong. It must be challenged, it must be opposed, and Parliament and the Government have a duty to challenge such behaviour and to take action to ensure that such discrimination is ended.

The first way that discrimination is challenged is often when brave people speak out against injustice, which we have seen throughout our own history and across the world. Usually such people are condemned as mad. They are generally abused and may suffer even further discrimination. Then a wider group of people will come around to their view so that they are not as denounced as they had been previously. Finally, often those who doubted in the first place then come forward with their own views so that something becomes the norm and the law is changed. We can see the contrast from where we were during the campaigns for women’s suffrage and where we used to be in respect of gay relationships between consenting adults before the publication of the Wolfenden report, and where we are today, with equal marriage, the acceptance of gay relationships and equality of gay people in respect of their rights and responsibilities. Attitudes have changed, and they should also change in this area.

When we hear shortly from the noble and learned Lord, Lord Keen of Elie, I suspect we may be told that the Government are aware of the concerns expressed and that they will continue to consider and review the issue. However, the protections needed are already in place. I hope that I am wrong and that the noble and learned Lord will go further in his remarks today. We will also hear, I am sure, about the independent review of sharia law which was established in May 2016, and that the Government want to receive the report on the review to consider its findings in the light of the evidence and to see whether anything further needs to be done to ensure that everyone, including Muslim women and girls, is provided with the protections they need to ensure that their rights are protected and that they are able to access justice. I hope that the noble and learned Lord will be able to give as full as possible a response to the points which have been raised, in particular by the noble Baroness, Lady Cox.

My noble friend Lord Anderson of Swansea has again spoken in support of moving forward, as indeed he did on the previous attempt to make progress in this area. He said that he fully supports the Bill and the principles behind it. Like me, he supports the noble Baroness, Lady Cox, in her attempts to champion the rights of women and girls and to address the specific problems suffered by some who are unaware of their legal rights.

In conclusion, I thank the noble Baroness for bringing this Bill before your Lordships’ House. Having its Second Reading so late in the parliamentary Session means that I am not sure how much further progress it is going to make without the Government’s help and support. This is a problem which needs to be addressed more widely, as the reality is that the vast majority of Private Members’ Bills put forward by noble Lords do not even get a Second Reading, although a great many of them seek to do good work and would make a difference to our lives in this country. We need to review the procedure. In the meantime, however, I look forward to the response of the noble and learned Lord.

--- Later in debate ---

[Lord Keen of Elie]

Do I need to repeat that? With the greatest of respect, this Government and certainly I would never consider that there was any basis for such a proposition. I acknowledge the need for equality not just of gender but in all respects. This Government acknowledge the importance of equality not just in respect of gender but in all respects. But in pursuing it we must have regard to the rights of individuals to perform their own religious functions in a way they see fit. But above all of this stands the rule of law and we remain determined to ensure that those who purport to carry out religious functions do so in accordance with the rule of law and with respect for all individuals, whatever their gender or ethnic background.

I assure the noble Baroness that this Government are concerned about the issues that have been raised, understand the seriousness of the issues that have been raised and appreciate the contributions that have been made by your Lordships’ House in addressing these points. I therefore express to her and all noble Lords who have spoken today my sincere appreciation of their contributions on what is not only an important issue but a complex one.

[Lord Kennedy of Southwark]

We have all heard the Minister’s concern, his appreciation and everything else—but can he just tell us what is going to happen next for the Government?

[Lord Keen of Elie]

My Lords, I thought that I had already explained it. Lest the noble Lord was not in the Chamber at that stage, we are considering the Casey report, which was received in December of last year; we are awaiting the sharia review; and we will bring these materials together in order that we can establish an informed view of the extent of the problem and what the potential solutions may be.

[Lord Kennedy of Southwark]

I thank the Minister for that. I am very worried now when I hear the word “review”. I tabled a couple of Written Questions asking what “review” means when it is mentioned at the Dispatch Box. I was told in a Written Answer from the Government that there is no definition of a review. The Minister will appreciate that when I hear that word I am very worried about what it actually means. I hear what the Minister says but, equally, I hope that he has heard the concern from all round the House in this debate.

[Lord Keen of Elie]

I have of course heard the concerns that underpin this Private Member’s Bill. I have of course also understood the depth of feeling and the depth of concern that there is to see these problems addressed.

Immigration Bill

Lord Kennedy of Southwark Excerpts

Monday 1st February 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, Amendment 184, in my name and that of my noble friend Lady Hamwee, concerns the power of immigration officers to examine the immigration status of those entering the UK. Clause 20(2) inserts the ability of the immigration officer to curtail existing leave to enter the UK. The amendment would replace the consideration of whether the leave “should be” curtailed, which implies an inappropriate degree of discretion, and substitute “is required to” be.

Also in this group is our opposition to Clause 21 standing part of the Bill. It seems disproportionate that immigration officers should have the power to search premises simply to establish whether an employer should be given a civil penalty for employing an illegal worker, or to establish whether a landlord should be given a civil penalty for leasing a property to a disqualified person. Immigration officers already have powers to search for evidence in relation to criminal offences related to these two activities. Surely it is only in the most serious cases, where a criminal prosecution would at least be being considered, that it would be appropriate for immigration officers to search premises in this way. It is rare for powers of search to be granted in connection with civil penalties in British law, and Clause 21 should not undermine such a principle.

We also oppose Clause 22 standing part of the Bill. This clause allows an immigration officer who is lawfully on premises to seize anything that he thinks may be evidence of any offence, under any legislation, if he thinks it necessary to prevent the evidence being concealed, lost, altered or destroyed. Initially, this appears a sensible approach, to obviate the need to call for police assistance when something is discovered that is not related to an immigration offence—for example, discovering what appear to be class A drugs.

Police officers receive extensive training in securing and preserving evidence, and in the questioning of suspects in relation to the discovery of evidence during searches. In addition to the need to carefully question the subject about the ownership of the items in question, since usually the owner of the premises denies that the item belongs to them, there is the question of whether photographic or forensic evidence is required in situ. I have been involved in searches of premises, and there have been many cases of police being involved in searches of premises where the very facts that the substance in question was on the premises and who it belonged to have been questioned subsequently in court. It is something of which the police have now had extensive experience, and they know how to handle these situations. I suggest that it would take a lot of training and experience for immigration officers to reach the level of expertise necessary to ensure that convictions subsequently take place. Either immigration officers will require extensive, and necessarily expensive, training in evidence preservation and the questioning of those suspected of non-immigration offences, or there is a real danger that valuable evidence will be lost in such cases.

There is also the question of what I might call false positives, when immigration officers seize items that they wrongly believe to be evidence of an offence and then pass them on to the police, placing a significant administrative burden on the police to process, secure and subsequently return the items to the owners. With significant cuts to police resources, the last thing the police need is for immigration officers to dump innocent items on them that they then have to deal with. We therefore believe that Clause 22 should not be part of the Bill. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, Amendment 184 and the two clause stand part debates in respect of Clauses 21 and 22 give an important opportunity to explore here exactly what the intention is behind the clauses. It is important that the Minister carefully sets out what he believes are the reasonable grounds for immigration officers to conduct a search for documents in respect of illegal working or leasing premises to disqualified persons obtained in the commission of an offence. Will the Minister set out what he means by a search of the premises? At any point, would that include a search of the person? How would that be conducted?

These are very sensitive matters and I want to be satisfied that proper processes are in place, and that people are treated with respect. We often need to remember that asylum seekers have not always had a good experience of meeting officials of the state in other countries, and we must ensure that actions are taken in a proportionate manner and to the highest professional standards. I have the highest regard for the officers who undertake this work for the Immigration Service; they do a very difficult and challenging job.

The noble Lord, Lord Paddick, made an important point when he talked about the extensive experience and knowledge that police officers have when it comes to conducting searches and preserving evidence to secure convictions. Are we confident that the immigration officer would have this knowledge? The noble Lord makes another important point when he talks about the burden of bureaucracy arising from items taken during a search that are then passed on to police but in the end do not secure any convictions because there is no offence at all.

[Lord Alton of Liverpool (CB)]

My Lords, before the Minister replies to the noble Lords, Lord Kennedy and Lord Paddick, may I add a word in support of their points, particularly the point about proportionality that has just been made by the noble Lord, Lord Kennedy? Why does the Minister feel we need to add to those powers that immigration officers already have, as set out in chapter 16 of the Home Office Enforcement Instructions and Guidance?

Would he also comment on the extensive powers that immigration officers already have to search without warrant in connection with a criminal offence? What is envisaged here, as I try to understand it, is to give those same officers powers to search premises without a warrant, in circumstances where they do not have any reasonable suspicion that a criminal offence has been committed. Is that the case? Is there no restriction in this clause authorising an immigration officer to act only where it is not practicable to obtain a warrant? If that is so, this is quite an extension of powers, and one that is disproportionate in the way that the noble Lord, Lord Kennedy, has described.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, on that very point, I know that the Minister cannot do it today, but would he be prepared to write to noble Lords, or to the noble Lord, Lord Paddick, and explain what that training and guidance will be? He said it would be very extensive, and I am sure it will be, but I wonder how long it will take, what the cost will be and how practical it will be.

[Lord Keen of Elie]

I should add that the guidance on immigration officers’ use of powers is set out in the enforcement instructions and guidance, which are published on the UK Government website. But I would be content to write to the noble Lord to set out an outline of the proposed training for those immigration officers who are going to have the limited power conferred by Clause 22 with regard to the preservation of evidence that they believe has been the product of some criminal act.

There was one further point made by the noble Lord, Lord Paddick, about the false positive, as he termed it, and the administrative burden. I respectfully suggest that that burden will be no greater than the burden imposed upon police officers in circumstances where immigration officers believe that they have encountered the product of a criminal act and then telephone or radio the police and invite them to attend a premises. So there is a question of balance here, but it is not, on the face of it, going to be a disproportionate burden when compared to the present circumstances in which the matter is, in any event, brought to the attention of the police.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord. As he indicated, Amendment 194 would remove the ability for immigration officers to seek an all premises warrant where they have a power to enter and search premises for material which is likely to be relevant evidence of an immigration offence under the 1971 Act. As the noble Lord anticipated, one purpose of this is to bring the provisions on such warrants into line with those for police warrants under PACE.

In addition, Amendment 201 is intended to do the same thing, but I should perhaps explain that when the immigration warrants were originally provided for, as running for one month, that was in parallel with the time that a police warrant would run under PACE. Subsequently, the warrant under the Police and Criminal Evidence Act was extended to a three-month period, so they fell out of sequence. The difficulty is that, from time to time, there are joint immigration officer and police operations which involve warrants being granted, and it is not convenient that the immigration warrant should be a period of one month while the police warrant is for a period of three months. The purpose of Amendment 201 in particular is simply to bring the time limit back into line with that which applies for police warrants.

Coming back to Amendment 194 and the use of all premises warrants, it is considered appropriate that an all premises warrant should be available to immigration officers, not only because that is consistent with the form of warrant available to police officers pursuing their own powers but because there are many circumstances in which an all premises warrant will be required for effective recovery of material pertaining to either illegal working or potential offences in respect of landlords and illegal renting. For example, where you have someone who has a number of restaurants employing persons who may be suspected of being illegal immigrants, you may have a warrant in respect of particular premises and then discover that all the records are actually kept elsewhere—in an office, a lock-up, or something of that kind. Therefore, it is appropriate that all the premises that are subject to the control of a particular employer should be available under the warrant, otherwise we would have a very long, drawn-out, step-by-step process of knocking down one domino, going from one warrant to the next one, and so on. It is in these circumstances that it is considered appropriate that an all premises warrant should be allowed in the case of immigration officers. I hope that that addresses the concerns or reservations expressed by reference to Amendments 194 and 201. In a sense, they bring immigration warrants into line with police warrants, but they were in line with police warrants before the amendment to the Police and Criminal Evidence Act. In addition, there are substantive reasons why it is practical and effective for immigration officers to have an all premises warrant facility available to them.

Government Amendments 195 to 200 and 202 to 209 may look rather complex, but have at their core a very simple proposition; that is, in Scotland it is not lawfully possible to secure an all premises warrant and a multiple entry warrant. Therefore, it is necessary to ensure that immigration officers operating in Scotland do so within the bounds of the Scottish criminal justice system.

[Lord Kennedy of Southwark]

I see the need for the amendments, but will the noble and learned Lord explain further how we have had to come to this stage in the Bill—I assume that it was drafted in the Home Office, checked and rechecked, and then went all through the Commons—and now we find that we have to table an amendment because these powers are not available in Scotland? I am surprised that we had to come to this stage to realise that point.

[Lord Keen of Elie]

It may be that the Scots only recently had a look at it. I am not in a position to elaborate, but I hope that the noble Lord will accept that as a potential explanation.

[Lord Kennedy of Southwark]

That is very helpful, thank you.

--- Later in debate ---

[Lord Paddick]

My Lords, in moving Amendment 210, in my name and that of my noble friend Lady Hamwee, I shall speak to Amendments 211 to 213 and Amendment 215.

Amendment 210 suggests the addition of “reasonably” in the power of the Home Secretary to direct public agencies to supply documents, so that she must “reasonably suspect”, rather than simply “suspect”, that someone may be liable to deportation under new Section 20A(2). Amendment 211 suggests a similar change to the power of the Secretary of State to retain such a document. Amendment 212 requires the Secretary of State to return a nationality document that is no longer required to the person who supplied it, as previously debated on Amendment 188.

Amendment 213 again queries extending the definition of “nationality document” from “a document showing” the individual’s “identity, nationality or citizenship”, to one that “might establish” the individual’s “identity, nationality or citizenship”, as previously debated on Amendment 189. I do not think that the Minister addressed in that debate the broadening of the definition from a document “showing” the individual’s identity to one that “might establish” their identity. That is a considerable broadening of the definition.

Amendment 215 would insert a new clause after Clause 30 relating to complaints and the investigation of serious concerns relating to the conduct of immigration officers. It suggests that a commission be established to,

“make recommendations about the establishment of an independent oversight body”,

for immigration officers and other authorised officers, in so far as they exercise powers available to immigration officers. My understanding is that the Independent Police Complaints Commission currently investigates complaints against immigration officers, but only relating to powers similar to those exercised by the police. There is not one overall coherent complaints investigation or recording system. Would the Minister confirm this? Even if the IPCC has a role, we believe that such arrangements may be inadequate and should at least be reviewed to ensure that they are effective.

The Independent Police Complaints Commission is fighting an uphill struggle to win the trust and confidence of the public in general, and the black and minority ethnic communities in particular. Those most likely to come into contact with immigration officers are those seeking asylum and others in a very vulnerable position. The likelihood that such people will have a good understanding overall of their rights and the standard of conduct expected of immigration officers and other authorised officers is far less than among those born in this country or who have lived here for some time. Indeed, the way they may have been treated by officials in their own country may well be far below the standard expected of immigration officers and other authorised officers in the UK.

In all the circumstances, it seems that there is at least a question that needs to be examined as to whether the existing arrangements by which long-standing residents of the UK—well-versed in their rights and the conduct expected of officials—can have their concerns about the police and immigration officers investigated are adequate for asylum seekers and those newly arrived in the United Kingdom. I beg to move.

[Lord Kennedy of Southwark]

My Lords, this group of amendments concerns the supply of information to the Secretary of State and the establishment of a commission for standards for immigration officers. I was somewhat surprised that without Amendment 212 or something similar—it may need refining—it would be left to the Secretary of State to dispose of nationality documents as they think appropriate, without any further clarifications. It would be useful if the noble and learned Lord, Lord Keen, would confirm that there is no question that these documents will not be returned to the person when they are no longer needed by the Secretary of State or their officials. I understand that we would not want to return the documents to someone who had no right to have them, but if they have been obtained lawfully they should go back to them.

Amendment 215 requires the Secretary of State to establish a commission to make recommendations for an independent oversight board to set standards for immigration officers. Given the sort of powers that immigration officers exercise as public officials, it is right that we should have in place a proper process to look at complaints about their conduct and standards. It would be helpful if the noble and learned Lord were to set out what happens at present. Is this safeguard in place with regard to certain things but not to others, as the noble Lord, Lord Paddick, indicated? Does the noble and learned Lord think that the present system is adequate in all respects?

[Lord Keen of Elie]

I am obliged to the noble Lords, Lord Paddick and Lord Kennedy of Southwark, for their observations on these provisions.

Amendments 210 and 211 are essentially the same as those previously discussed in relation to Amendment 191 in seeking to ensure that the Secretary of State may direct a person to supply a relevant nationality document only—and may retain that document only—if she acts reasonably in her suspicion that the person to whom the document relates may be liable to removal from the United Kingdom, and that the document may facilitate that removal.

Amendment 213 is the same as Amendment 189, put forward to Clause 25, in seeking to limit the definition of “nationality document”. The noble Lord, Lord Paddick, observed that I had not addressed the distinction between the term “showing” and the term “might establish”. It respectfully appears to me that it is the distinction between that which is explicit on the face of a document and that which may be inferred from its terms. The terms of a document may not on their face show a particular position but an analysis of the terms of that document would lead to an implication about the source of the document, the person using it or the background of that person. So I suggest that it is the distinction between a document being explicit on its face, and giving rise to what might be termed a circumstantial evidential route to a determination with regard to a person’s nationality or route of travel.

Amendment 212 differs slightly from those previous amendments to Clauses 25 and 26 on the Secretary of State’s power to dispose of documents which she no longer wishes to retain in that it requires the document to be returned to the person who supplied it. However, to answer the question raised by the noble Lord, Lord Kennedy, we again face a difficulty when the Secretary of State is provided with documents which are clearly forged or counterfeit. The desire is to ensure that these should not remain in circulation and therefore be returned to someone who would put them back into circulation or use them again. I hope that that satisfies the noble Lord. It should be acknowledged that some of the bodies supplying documents will not be in a position to establish whether they are forged or fraudulently obtained—but, generally speaking, Immigration Enforcement personnel are able to determine that from the analysis of documents.

As we have discussed, Clause 29 contains powers that enable the Secretary of State to require public authorities, subject to certain conditions, to supply nationality documents to the Home Office for immigration purposes. Schedule 6 lists those public authorities to which the new duty applies. Government Amendment 214A is quite straightforward in terms of its effect in that it adds education bodies to that list: these are schools and further and higher education providers across the United Kingdom. This power will be exercisable only where the Secretary of State suspects that a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and that the document may facilitate the removal.

I wish to be absolutely clear that this is not a power to require education bodies or, indeed, any of those listed, to collect data or information on behalf of the Secretary of State, or to seize documents from people, as it applies only where the Secretary of State has reasonable grounds for believing that a nationality document is already lawfully in the possession of the relevant body—that is to say, that they hold the document for the purposes of their own functions.

--- Later in debate ---

So there is a wide-ranging series of bodies available to ensure that complaints from the public are properly handled and effectively disposed of. I again point to the observations made a little earlier by the noble Lord, Lord Paddick, about the use, or alleged misuse, of warrants in circumstances where they have been employed by immigration officers. That points up the fact that there is a very effective monitoring system in place. In these circumstances, I urge noble Lords to accept government Amendments 214A and 214B and invite the noble Lord, Lord Paddick, to withdraw his amendment.

[Lord Kennedy of Southwark]

The noble and learned Lord has gone through the various bodies to which we can complain. However, there are a lot of bodies to which one can complain about all sorts of different things. Perhaps his officials should reflect that there is a case for bringing all these things together because having all these bodies may not be the best way to run things. As regards the nationality documents, I entirely accept the point about fraudulent documents but if a document is genuine I assume that it would be returned to the relevant person.

[Lord Keen of Elie]

On the last point, the Secretary of State will act reasonably, and is lawfully obliged to act reasonably, so there cannot be any real difficulty about that. On the noble Lord’s first point, our complaints procedure may be so comprehensive that it is difficult for him to get his arms round it. However, I would be content to write to outline that procedure in more detail if he felt that would assist.

--- Later in debate ---

[The Earl of Sandwich (CB)]

My Lords, my noble friends have been tempted to move into the next group of amendments. I can see why, as bail and detention are so inextricably intertwined, but I will try to resist that temptation. I would say that the question of bail has been raised on successive immigration Bills, and many of us remember that historic repeal by Labour of the clause that would have brought in automatic bail. This issue has a direct bearing on the next group of amendments and the old problem of the inadequacy of initial decisions.

I will simply quote here the words of the highly regarded Detention Forum, which was mentioned by my noble friend Lord Hylton. It said:

“Given the lack of automatic bail hearings for individuals who have been detained, and without the initial decision to detain being sanctioned by any kind of legal proceeding, the lack of effective case-working has serious and damaging consequences”.

I have had some experience of visiting detention centres where there are a lot of patient and courageous visitors who, just like the inmates themselves, have become frustrated with the system. There are some who have committed serious offences but there are genuine migrants and asylum seekers in their hundreds, anxiously awaiting either sentences or appeals for crimes that they have not committed. I understand that in 2014, more than 30,000 individuals were detained but only 12,000 removed. I support the later amendments on the need for a time limit to detention but I will not mention that now. We have already heard the example of Yarl’s Wood and of the work of the Shaw report, so I will leave that for later.

[Lord Kennedy of Southwark]

My Lords, the intervention by the noble and learned Lord, Lord Keen, is helpful in respect of this group of amendments. It starts with Amendments 215A and 216A in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. These amendments seem practical and proportionate. I concur with the points made by the noble Baroness, Lady Hamwee: a person must be released if there is no power to detain and they cannot lawfully be detained, and it does not seem right to use the term “bail”. I particularly agree with the point made by the noble Baroness, Lady Hamwee, and other noble Lords that language must be accurate. People seeking asylum should be seen as victims and not treated as criminals. That is an important point.

Amendment 217, which was tabled by my noble friend Lord Rosser, the noble Baroness, Lady Hamwee, the noble Lord, Lord Paddick and me seeks to add an additional clause that sets out a process whereby somebody detained has a clear procedure to go before the First-tier Tribunal within eight days, then after 36 days and then every 28 days for it to determine whether they should be released on bail. This is an important role for the judiciary, as the noble Baroness, Lady Hamwee, said. The amendment makes provision for detention not to be indefinite and for a proper review process. Depriving somebody of their liberty is a serious matter. It is right that the reasons for detention should be vigorously tested and that the tribunal should be satisfied that there is no other reasonable course but to detain the person. We support this amendment.

Amendment 219 seeks to remove from the Bill the power for the Secretary of State to detain an individual granted bail by the tribunal without just cause. Amendments 220, 222 and 223 would remove the provisions that would allow the Secretary of State to override the decisions of the tribunal with regard to electronic monitoring or residence conditions on immigration bail. Amendment 224 would require the Secretary of State to make provide accommodation facilities for a person released on bail. This is an important provision under the heading:

“Powers of Secretary of State to enable person to meet bail conditions”.

Ensuring that a person has a roof over their head should be a primary concern. Amendments 221A and 221B in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, seek to remove the words,

“causing a danger to public health”,

and,

“in that person’s interests or”.

I particularly look forward to the response of the noble and learned Lord, Lord Keen, on this. The noble Baroness, Lady Hamwee, made an excellent point.

Amendment 221C clarifies that the arrangements to communicate must be reasonable. It is an important requirement. These are difficult matters and the emphasis on the word “reasonable” is very welcome. Amendment 221D makes clear that the functions are exercised on behalf of the Secretary of State. The remaining amendments are in the name of the noble Lord, Lord Bates, and I looking forward to an explanation of them.

[Lord Keen of Elie]

I am obliged to the noble Baroness and to noble Lords for their observations on this part of the Bill and on bail. I notice that we have all referred to “bail” throughout the debate. Going back through various parliamentary reports over many years, the references are consistently to “bail”. It is a term that we understand in this context. That is important because, as the noble Baroness observed, the use of language is significant in this context. It is as well to bear that in mind.

I shall look first at Amendments 215A and 216A on the use of the term “immigration bail”. Let us be clear: no one is seeking to criminalise immigration or to treat immigrants as criminals. It so happens that the term “immigration bail” has come into common parlance in this context. Clause 32 and Schedule 7 are intended to simplify the current powers on bail and temporary release contained in various Immigration Acts, effectively reducing six different forms or statuses to one. The description “immigration bail” was chosen because it is a well-understood concept. The statutory underpinning for criminal bail and immigration bail are in entirely different pieces of legislation. The naming of immigration bail is not about criminalising people. It is about being clear about an individual’s situation. The term “temporary admission” could have been chosen, but it is a less accurate way of describing the status as it would not capture, for example, the circumstances of individuals encountered in the UK without leave or those who had leave but are subject to a deportation order. In these circumstances, we resist the suggestion that “immigration bail”, which is widely understood by those who engage in this debate, should be replaced by “temporary admission”, which is less exact and less accurate as a means of describing the relevant status.

Amendment 217 is on automatic bail hearings. It would require a bail hearing in the tribunal after eight days of detention, then after 36 days and every 28 days thereafter. The Government take matters of liberty seriously and have made clear in the recent Written Ministerial Statement by my right honourable friend the Minister for Immigration that changes to policy and the operational approach to detention should lead to a reduction in the number of those detained and in the duration of detention before removal, especially for the most vulnerable. However, the Government do not consider that introducing mandatory and scheduled bail hearings will aid these reforms. There is already well-established judicial oversight available. Individuals detained under immigration powers have unrestricted opportunity to apply to the tribunal for bail at any time. They can also apply for a judicial review of their detention or for a writ of habeas corpus to the High Court, again at any time.

The current system is flexible by design, both in the interests of justice and in allowing the detainee ready access to the tribunal. Introducing automatic bail hearings at set periods in all cases would be a significant resource burden on the tribunal at the expense of the taxpayer and would take valuable judicial time that could be spent on other matters, potentially prolonging the time spent in detention and denying other appellants timely access to justice. Mandatory bail hearings at set intervals were placed on a statutory footing, as a noble Lord observed, the last time the Opposition formed a Government, being legislated for in Part III of the Immigration and Asylum Act 1999. However, they were never brought into force and were repealed in the Nationality, Immigration and Asylum Act 2002. What was the reason for the repeal? The plans were unworkable in practice and would have been a significant resource burden. That remains the position today, so we resist the amendment.

Amendment 221A would remove the requirement to consider the public health implications of bailing an individual. It is not about incarceration. In order to detain pending removal, there must be a realistic prospect of removal in a reasonable timeframe. Paragraph 3 of Schedule 7 sets out a number of factors that the bailing authority must have regard to when considering whether bail is appropriate and the conditions of bail that should be imposed. Naturally, risk to the public and community is a paramount consideration, whether that is the likelihood of the person committing an offence, the likelihood of the person absconding or the likelihood of the person’s presence in the UK being a danger to public health. This would, for example, be a consideration if there were a pandemic and an individual were infected and detained pending removal. Clearly it would not be possible to detain under immigration powers if the sole consideration was protecting public health and there was no underlying immigration justification for the exercise of the detention power. It is a justifiable power in the context of protecting public health.

Amendment 221B would remove the requirement to consider whether it is in a person’s best interests to be detained before being released on bail. I understand the reason why this amendment has been laid, as when could it ever be in anyone’s best interests to be detained? First, let me be clear on a point of principle. It is the Government’s policy that there is a presumption of liberty and that immigration detention should be used as a last resort. This is long standing and will not change. It is important to put that on the record and I am sure that the whole Committee will agree that this is right.