Domestic Abuse Bill

Lord Lexden Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 27th January 2021 Lords Chamber

Clauses 10 and 11 agreed.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, we now come to the group beginning with Amendment 37. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Clause 12: Advisory Board

Amendment 37

Moved by

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This afternoon and on Monday, we talked quite a bit about the independence of the commissioner, but the fact is that her—or his, in due course—resources are inevitably limited by the Secretary of State. Is this a necessary control? Can she not be trusted to do the sensible thing in designing the advisory group and appointing members to it? I beg to move.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The noble Baroness, Lady Newlove, who is next on the list of speakers, has withdrawn her name, so I call the noble Lord, Lord Dholakia.

[Lord Dholakia (LD)]

My Lords, I wish to speak on Amendment 39, which is grouped with Amendments 37, 38, 40 and 43. Before I start, I just say how good it was to listen to the contribution that my noble friend Lady Hamwee has just made.

I intend, in effect, to identify some of the issues that have been taken up previously. I am pleased to say that my noble friend Lord Paddick spoke about this matter at Second Reading, and he is backed up by my noble friend Lady Featherstone. At Second Reading, he was able to identify why such a provision in the Bill is necessary. The amendment seeks to ensure that at least one person on the advisory board has experience with regard to the interest of male victims and those in same-sex relationships. My noble friend Lady Featherstone was responsible for equality issues during her time at the Home Office, and her ministerial experience is very useful in contributing on this matter. Of course, I always bow to the knowledge of my noble friends Lady Hamwee and Lady Burt.

This legislation makes considerable improvements to the way in which we deal with female victims. That must never be underestimated, and rightly so, but we have the opportunity to ensure that male victims of domestic abuse, who, according to ONS statistics, make up 35% of victims, have the same opportunity to pursue their grievances. In any gender-neutral legislation, a programme of public education on this point is vital.

I am surprised that only 1% of funding is allocated to male victims, according to the briefing I have received. I am told that male victims are three times less likely to report their abuse to police. I was engaged in the work of the former Commission for Racial Equality and firmly believe that support should be granted to all victims regardless of their gender, sexuality, ethnicity, age and ability. Perhaps the Minister could look at this issue. We should not give an impression that the Bill has less focus on male victims. Some of the suggestions I have made clearly point towards this interpretation which should be avoided. I urge the Minister to support a gender-neutral approach in the guidance on the Domestic Abuse Bill, which so far seems to lack such an explanation. I will go further. We need to build the confidence of people who may want to use this legislation to advance their cause by giving them confidence to do so by making sure that gender includes men, so I make that suggestion to the Minister.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have taken part in this debate. As noble Lords have outlined, these amendments all relate to the composition of the advisory board that will provide the commissioner with advice on the exercise of her functions. The advice could span a range of issues but is expected to contribute towards the development of the commissioner’s strategic plans, at the very least.

It is important that the advisory board contains a broad range of interests and represents a number of key statutory agencies and domestic abuse experts. I could start listing them, but then noble Lords might hold me to my words. But I can give examples. For example, they might have experience in housing or refuges or have medical experience, and so on and so forth. To maximise the effectiveness of the board, it is required to have no fewer than six members and no more than 10. That is to ensure that the board remains focused and provides clear advice to the commissioner.

Amendment 37 seeks to lift the upper limit on the membership of the board. We think that a maximum membership of 10 is appropriate to ensure that the board can operate effectively and efficiently. It does not preclude the commissioner from also seeking advice from other sources, but we need to avoid creating an unwieldy board which cannot then provide effective support to the commissioner.

In relation to Amendment 38, I do not believe there is any real practical difference here. To be able to represent, for example, the providers of health care services, I would expect the relevant member to have experience and expertise in this field. I suggest that we can leave it to the good judgement of the commissioner to appoint suitably qualified individuals.

Amendments 39, 40 and 43 all seek to add to the categories of persons who must be presented on the board. As I have indicated, we risk creating a board that is too unwieldy and therefore cannot effectively discharge its functions and support the commissioner in her role. An advisory board member could represent the interests of more than one group. For example, they could represent the interests of victims of domestic abuse, while also representing the interests of specialist charities. The structure provided for in Clause 12 confers sufficient latitude on the commissioner to include other key areas of expertise, such as in relation to children.

In addition to this board, through her terms and conditions of employment the commissioner will be required to establish a victims and survivors advisory group to ensure that it engages directly with victims and survivors in its work. The commissioner may also establish any other groups as she sees fit. While the appointments are a matter for the commissioner, I expect the membership of the victims and survivors advisory group to be representative of all victims of domestic abuse—a point well made by the noble Lord, Lord Paddick.

The advisory board must be able to operate efficiently and effectively. It is important that it has a balanced membership, with expertise in critical areas relating to supporting and protecting all victims and bringing perpetrators to justice. Clause 12 strikes the right balance, setting out minimum and maximum representation but otherwise giving the commissioner the space to appoint the right individuals to the board. On that basis, I hope that the noble Baroness is content to withdraw her amendment.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, I have received no requests to speak after the Minister, so I call the noble Baroness, Lady Hamwee, to conclude the debate on her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, I am glad that three of my noble friends spoke about male victims. I do not think we can remind ourselves too often that, whatever the language in the Bill—I am well aware of the lengths to which the Government have gone to express the Bill and supporting documents in gender-neutral language—the Bill is also about awareness. We have a task to make ourselves and others aware that it is not a gendered issue.

The noble Lord, Lord Hunt, made the point about governance far more clearly than I did. I was indeed thinking about an integrated approach.

The Minister started on a list of those who might be members of the advisory board. I do not know whether she stopped herself because she realised she was making my point for me—that was certainly how I heard it—but she also said we should leave it to the commissioner to find the right individuals to represent these various categories. We should leave it to the commissioner and trust the commissioner to create an effective, efficient advisory board and to achieve the balance to which the Minister referred. I had thought there might be something more about this in the draft framework document, but essentially it repeats what is in the Bill.

I do not think the Minister replied to the point about the term “represent”. Indeed, she used that term herself. I remain really concerned about that, because I do not think that properly describes what the advisory board—as a body made up of a group of individuals, but we should look at it as a body—is really there to achieve.

I rather feel that the Government’s answer to all the amendments in the group is “not invented here, so sorry”. It sounded more like “not invented here” than “not necessary”. However, we will consider whether we pursue some of these points at the next stage, and I hope we do. I beg leave to withdraw the amendment.

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, we now come to the group consisting of Amendment 44. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make this clear in debate.

Clause 13: Strategic plans

Amendment 44

Moved by

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For those who may question the need for the statutory duty in this arena set out in the amendment, it is important to remember the sheer scale of domestic abuse in this country. The ONS estimates that 1.6 million women aged between 16 and 74 experienced domestic abuse in 2019—that was before Covid and before lockdowns. Our argument is that only a statutory duty to make trained inquiries a standard practice will create the sufficiently large, systemwide change needed to assist so many victims of abuse. Without that statutory duty, the designate commissioner, Nicole Jacobs, will not have the powers or resources to ensure that consistent training is taking place across public authorities. I ask the Minister, who I know is committed to this portfolio, to look positively on our argument that public authorities should routinely ask and take action.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The next speaker on the list, the noble Baroness, Lady Ritchie of Downpatrick, has withdrawn, so I call the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise to support this amendment strongly: because this is done in such a patchy way, it needs a complete rethink.

I want to focus my comments on the training of police in domestic abuse. I have mentioned before in your Lordships’ House the organisation SafeLives, which has trained various police forces and found it incredibly effective in making them aware and more empathetic. Arrests and prosecutions rocket because, all of a sudden, police officers understand what is involved.

This week, at the APPG on Policing and Security, I asked Assistant Commissioner Louisa Rolfe, who is the NPCC lead for domestic abuse, about the number of police forces that had done this sort of domestic abuse training. The latest figures she had showed that 23 out of 43 forces had done the training, which I think noble Lords will agree is not enough. She made the valid point that it was not just about paying for it—which does hamper some police forces, because they have to pay for it themselves—but about the logistics of taking officers away from their day-to-day duties.

So, it is a postcode lottery. You might live in an area where training has been delivered, or you might not. There has to be blanket provision: this sort of training must be delivered as part of basic training to all police forces and any other public servants who may encounter survivors of domestic abuse. However, it is police officers who are in drastic need of this training. I ask that the Minister take this issue back to the Home Office and make it clear that the police should have this training as a matter of course. It represents the deep, far-reaching approach that all public organisations should be taking against domestic abuse. This is how we win against abusers.

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In conclusion, I share the noble Baroness’s objective in ensuring that all relevant front-line practitioners receive appropriate training so that they can effectively respond to domestic abuse and support victims. We remain to be persuaded that legislation is necessary, but we will continue to keep this under review, including in light of the still relatively limited experience of the “Ask and Act” scheme in Wales. In the meantime, I hope that the noble Baroness will feel able to withdraw her amendment.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, I have received no requests to speak after the Minister, so I call the noble Baroness, Lady Armstrong, to conclude the debate on her amendment.

[Baroness Armstrong of Hill Top (Lab) [V]]

My Lords, I am really grateful to everyone who has contributed and been so positive about the importance of really good trained inquiry from whichever front-line worker a woman or victim is likely to turn up in front of. I will not mention everyone individually, but I need to answer a couple of things.

My noble friend Lord Hunt spoke very eloquently about the importance of employing people with lived experience in many of the services that work directly with those who have been abused—this is very important. I work with organisations that do this. However, he is also right that, if you are going to do it, you have an additional responsibility to make sure that they are well trained and supported. This amendment would help to make sure that that happened.

I was delighted that the noble Baroness, Lady Verma, contributed to the debate. When I was doing the commission, I met a number of women from the black, Asian and minority-ethnic communities and, of course, women with disabilities as well as some of the organisations that worked with them specifically. Too often, they met people who simply did not have the specialism or capacity to support them.

It is really important to understand the distinct and often disproportionate ways in which some minoritised women experience abuse, as well as knowing the right referral pathways. Training must involve the expertise of service providers, run by and for minoritised communities. These are really important things that I encourage the Government to think and talk to a wide group about. I certainly look forward to working with the noble Baroness, Lady Verma, on this agenda.

My noble friend Lord Rooker raised the issue of costs. Agenda has estimated that this would cost about £3.6 million. The Minister also mentioned the duty being a burden, and, as a previous Local Government Minister, I know all about that and want to address it. I would like to work with her officials to go through what some organisations have been doing to deliver this training in a way that enhances their organisation as well as ensuring really good support for the women and other victims who come in front of their front-line workers. I believe that there is merit for the public service rather than it being a burden in relation to doing things in the way that we have talked about this evening.

I hear what the Minister says, and I would love to work with her and her officials to find a way forward because I am afraid that, at the moment, there is plenty of guidance but no means of making sure that it is always translated into action. This is where we need to understand how we make sure that this happens for every victim of abuse who presents to a public authority. As such, there is work to be done, and, in the light of that, I am happy to withdraw my amendment today, with the idea that we will do some more work and perhaps come back later with another amendment on Report.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Lexden Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, I ask the noble Lord, Lord Anderson of Ipswich, not just to resume his speech—we look forward greatly to the rest of it—but, if he would be so kind, to repeat the last few statements he made, because sadly they were inaudible.

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

I am grateful, and apologise for what seems to have been something of a crossed line.

I dealt with proposed new paragraph (a) in Amendment 21, so will move on to proposed new paragraph (b). I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy than for misconduct in public office, but that is because, if the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy.

However, I believe that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences, if the CCA has first been declared a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or a criminal court. The Minister and the Bill team have been extremely helpful in explaining their thinking on this; I believe that there is nothing between us on this point. I would be most grateful if she could confirm—this is the third confirmation I am asking for—that this is the Government’s understanding of the law.

Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS in Northern Ireland are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect are the powers vested in judicial commissioners under the Investigatory Powers Act. Section 231 provides for serious error reports, and Section 232(2) provides for the Investigatory Powers Commissioner to

“provide advice or information to any public authority or other person in relation to matters for which a Judicial Commissioner is responsible”,

presumably including the CPS. Could the Minister confirm, fourthly, that this is also the Government’s understanding?

I move on, more briefly, to civil recourse for the innocent victim of an authorised crime. I start from the position that some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation, not from the person who was authorised to commit the crime but from the authority which authorised it or from the state more generally. Proposed new paragraph (c) in Amendment 21 seeks confirmation of what I do not believe to be in dispute: that compensation may be obtained from the Investigatory Powers Tribunal in a case brought by an innocent victim. That is the fifth thing I ask the Minister to confirm.

That may, however, not be the most practical of remedies. Judicial commissioners have the power to tip someone off that they may have a remedy in the IPT when they consider that to be in the public interest but, as the noble and learned Lord, Lord Falconer, and I suggested in Committee, there may be very limited circumstances in which that will be possible; there might well be risks to the operation and to the CHIS if unconnected persons were informed that their injuries were attributable to an undercover operative. The judicial commissioners are likely to have that well in mind, hence the importance of Amendment 22, which in the case of injury to an innocent victim would ensure that an application could be made in the normal way to the criminal injuries compensation scheme. That would have the great advantage of affording compensation to the innocent victim without it being necessary to disclose to the victim the status of the person—the CHIS—who inflicted the injury.

In their response last week to the Joint Committee on Human Rights, which was published by the Joint Committee at 11 this morning, the Government state that, having considered the question in detail, they have concluded that

“nothing in this Bill would frustrate a victim’s ability to recover compensation for injury or loss through that scheme.”

That is certainly encouraging, but I am afraid that the mouth of this particular gift horse needs a little more inspection. If actions committed pursuant to a valid criminal conduct authorisation are, in the words of Section 27(1), “lawful for all purposes”, can the Minister explain how injuries caused by such acts can be criminal injuries for the purposes of the compensation scheme? That is the sixth and final assurance I request from the Minister.

There is often an argument for making things clear in statute, even if satisfactory assurances can be given. Accordingly, if the Government accept the thrust of these amendments but have difficulties with the drafting, I shall certainly look constructively on any commitment to come back at Third Reading with revised drafts. I shall listen carefully to what the Minister says in response. Depending on the content of that response, and if no commitment is given to accept these amendments or come back to them at Third Reading, on Wednesday I may test the opinion of the House on either or both of Amendments 21 and 22.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the noble and learned Lord, Lord Falconer of Thoroton, who is next on the list, has been replaced by the noble Lord, Lord Rosser.

[Lord Rosser (Lab) [V]]

My Lords, speaking for the Opposition, we support the essence of this Bill. As noble Lords from all sides of the House have said in earlier debates, this Bill addresses a necessary—if at times uncomfortable—reality, which prevents crime and keeps us safe. We pay tribute to those in our security services and elsewhere for the work they do on our behalf.

There has been much discussion in this House on the detail of what is before us. I very much respect the strongly felt concerns raised by my noble friend Lady Chakrabarti. I take what she said, as I do all her contributions, in the constructive spirit in which I know it was intended. However, we have reservations about the effect of the amendments she has tabled. The current status quo is that criminal conduct authorisations are given without formal accountability, and prosecutorial discretion becomes a factor only if a CHIS is caught and arrested for the offence. For the overwhelming majority of cases, prosecutorial discretion never becomes relevant. In the circumstances that a CHIS, having been authorised, is caught carrying out that criminal act, the CPS will be made aware of the authorisation and will not prosecute, on the basis of overriding public interest. The CHIS does not now, and will not under this Bill, have immunity for committing an unauthorised offence.

We therefore believe that the Bill reflects the status quo in practice. We feel that putting this on a statutory footing, with authorisation conferring immunity—with appropriate safeguards—is the best way. We seek to add provisions into the Bill on immunity plus safeguards, including on the function of the Investigatory Powers Commissioner, looking at every authorisation and possible prior judicial authorisation—to which my noble friend Lord Dubs referred—which will preserve the use of CHIS criminal conduct authorisations in the national interest while ensuring that there are safeguards for every authorisation.

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[Baroness Wheatcroft (CB) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Blunkett, who speaks with deep personal experience and authority. I listened to the passionate debate on the previous group of amendments, and now on this group. The noble Lord, Lord Dubs, made his case for Amendment 5 in his usual persuasive manner, but I favour a slightly different approach, not least for the reasons outlined by the noble Lord, Lord Blunkett. Hence I will speak to Amendment 16, as introduced so effectively by the noble Lord, Lord Hain, and supported by the noble Lord, Lord Cormack.

If the state is to grant advance pardon to individuals to commit serious breaches of the law, this should not be a common occurrence, and it is a decision that should be taken at the highest level. To my mind, that should be at the level of government. I accept that there might be occasions when, for matters of national security, criminal acts will need to be committed, but I have not been convinced of the need for change in the status quo regarding the way these authorisations are given. However, as the charity Justice says, it is inconceivable that the Government should not be accountable for serious criminal offences committed with their approval—but if that approval is delegated to officials, who will be accountable?

I have many qualms about this legislation. As many have remarked, the Government have repeatedly failed to make a convincing case as to why such a drastic abandoning of moral norms should be sanctioned. They have certainly failed to provide convincing arguments as to why such a broad set of agencies should need access to criminal conduct authorisation. What undercover activity does the Food Standards Agency, for instance, envisage having need of? However, while I am not comfortable with aspects of the legislation, I have no doubt of the Government’s determination to press ahead with it. It is therefore down to this House to try to make it more palatable.

As ever, the Government are keen to embrace anything that will show contempt for the European Court of Human Rights, and this obviously presents an opportunity to do that. But it is imperative that we try to stop these powers being used with impunity—and how better than by making government directly accountable? It would clearly be wrong for officials to have the power to grant immunity from prosecution to undercover agents on the basis of what they perceive as necessity without external authorisation.

The noble Lord, Lord Dubs, believes that the judiciary could provide that authorisation; the noble Lord, Lord Blunkett, pointed out the flaws in that. I would prefer it to be the Government: the shift in responsibility from Ministers to officials has become a worrying trend. It seems that senior officials are deemed dispensable these days, but Ministers are not; ministerial resignations are now very rare, although I am sure that most of us have a little list of those that we feel are long overdue. The issuing of these orders is a very serious decision, with potentially enormous effects; it would surely be appropriate for a Minister to take ultimate responsibility.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the name of the noble Lord, Lord Rosser, appears next on the list by mistake—he has already spoken—so I call the noble Lord, Lord Butler of Brockwell.

[Lord Butler of Brockwell (CB) [V]]

My Lords, in supporting the new clause in Amendment 33 and its consequentials, I am riding pillion to my noble friend Lord Anderson of Ipswich. When I heard his speech at Second Reading, I immediately felt that his approach struck the most practical balance in controlling the activities of intelligence agencies embedded in groups carrying out criminal activities. Following the noble Baroness, Lady Wheatcroft, I rather suspect that the scale of this is both at a lower level and in a larger quantity than previous speeches have suggested. One has to see the practicality of that in those terms.

My experience, both when I was in government and when I was on the Intelligence and Security Committee of Parliament, leads me to believe that control of these operations requires three things. First, it requires better precision than there has been so far in the definition of how far agents can be authorised to go in participation in criminal activities. That is fair to them, and it is fair to the authorities. Ever since the case of Brian Nelson, the Northern Irish loyalist informer, to which I referred in Committee, I have felt that it is unsatisfactory that judgments on these matters should be left open and to the discretion of prosecuting authorities after the event, although I have no doubt that the decision to prosecute Nelson—indeed, he confessed—was correct.

Secondly, there is a need for close contact and immediacy in the control exercised. These situations in which covert intelligence agents are involved are often fast-moving. Communication between agent and controller may need to be rapid, and control needs to be agile. I do not believe that that can practicably be provided by a judge or a Secretary of State.

Thirdly, independent oversight is needed in as close to real time as possible. Controllers cannot be the judge and jury in these matters—certainly not the sole judge and jury—since there is an obvious temptation to cross lines in the interests of achieving what are often laudable objectives. I am persuaded that oversight is likely to be best achieved by giving the independent Investigatory Powers Commissioner a more active and immediate role. It seems to me that the provision proposed by my noble friend in the proposed new clause achieves these objectives in a practical way, and I am glad to hear that the Minister is inclined to agree that this is a fair and effective way forward.

The Liberal Democrats’ Amendment 17 takes a similar approach and, to that extent, I am sympathetic to it, but I am sceptical about whether the requirement for “prior approval” by the Investigatory Powers Commissioner, even with a get-out clause in circumstances of urgency, would meet the requirement for operational agility—so I will stick with my support for my noble friend’s amendment.

Domestic Abuse Bill

Lord Lexden Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 5th January 2021 Lords Chamber

[Lord McColl of Dulwich (Con) [V]]

My Lords, one of the important ways in which this Bill was enhanced in another place was through the removal of the “rough sex” defence. In successfully making the arguments for this change, Members in the other place cited evidence submitted by Louise Perry of the campaign group We Can’t Consent to This. Ms Perry said:

“We can’t really ignore the porn factor … It’s there at a click of a button and can be accessed at such a young age. And the algorithms push you into a rabbit hole of more and more extreme stuff.”


At that time, I was heartened by the fact that, in addition to removing the “rough sex” defence, the Government would soon be making a key investment to combat domestic violence in the future by delivering on the 2015 Conservative manifesto commitment to

“stop children’s exposure to harmful sexualised content online, by requiring age verification for access to all sites containing pornographic material”

through the online harms Bill.

The negative impacts of exposure to pornography on child development are extensive. In February 2016, the DCMS stated in its important document Child Safety Online:

“Pornography has never been more easily accessible online, and material that would previously have been considered extreme has become part of mainstream online pornography. When young people access this material it risks normalising behaviour that might be harmful to their future emotional and psychological development.”


I quite agree. One of the very negative impacts of exposing children to pornography is the impact it inevitably has in normalising rough sex in their thinking, and in the development of their expectations.

In addition to helping parents protect their children from the wider harms associated with exposure to pornography, the Government’s commitment also provided a key way of helping to prevent the normalisation of rough sex in the thinking and expectations of the next generation. I was therefore very disturbed when the Government announced last month that the online harms Bill will not meet its manifesto commitment and will, instead, only seek to protect children from user-generated pornography.

As the online harms Bill will plainly not be delivering on the earlier manifesto commitment, the obvious way forward would be for the Government to now implement Part 3 of the Digital Economy Act to give effect to the world-leading legislation that your Lordships’ House has already passed to protect children from accessing pornography and, therein, the normalisation of rough sex on pornographic websites. This House has already passed that legislation; now we just need the Government to implement it.

[The Deputy Speaker (Lord Lexden) (Con)]

The noble Lord, Lord Ramsbotham, has withdrawn, so I call the noble Baroness, Lady Kennedy of The Shaws.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Lexden Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

Amendments 20 and 21 not moved.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

We proceed to the group beginning with Amendment 22. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this, or anything else in this group, to a Division should make that clear in debate. I should inform the Committee that if Amendment 22 is agreed to, I cannot call Amendments 23 to 30.

Amendment 22

Moved by

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[Baroness Massey of Darwen (Lab) [V]]

My Lords, in speaking to Amendment 25, I shall put the views expressed by the Joint Committee on Human Rights in Chapter 5 of its report on the Bill. I am a member of that committee.

The amendment seeks to limit the use of criminal conduct authorisations to protecting national security and preventing crime. The JCHR report accepts that authorising criminal conduct may, in certain circumstances,

“be necessary and proportionate in the interests of national security or for the purpose of preventing or detecting serious crime.”

These were the purposes considered by the Investigatory Powers Tribunal when it approved MI5’s policy in the third direction challenge, and are the purposes highlighted by the Home Office in the Explanatory Notes. However, the Bill also permits CCAs to be made for the purpose of preventing disorder and for the economic well-being of the United Kingdom, as was mentioned before. The report says:

“It is difficult to understand why it is necessary to include ‘preventing disorder’ as a potential justification for authorising criminal conduct. Serious disorder would amount to a crime … and therefore be covered by the purpose of ‘preventing crime’. Any non-criminal disorder would not be serious enough to justify the use of criminality to prevent it.”


The NGOs Reprieve, the Pat Finucane Centre, Privacy International, the Committee on the Administration of Justice, Rights and Security International and Big Brother Watch raised concerns that the Bill could allow for CCAs to be granted in relation to

“the activities of Trade Unions, anti-racism campaigns and environmental campaigns that have been the site of illegitimate CHIS activity in the past.”

The report concludes:

“The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime”


and that

“the power to authorise criminal conduct as contained in the Bill is far too extensive”.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, the noble Lord, Lord Hain, whose name appears next on the list, has withdrawn, and the noble Lord, Lord Dubs, unfortunately did not join the debate remotely at the start. I therefore call the noble Baroness, Lady Bryan of Partick.

[Baroness Bryan of Partick (Lab) [V]]

My Lords, it is a real pleasure to take part in this debate. I am sorry that my noble friend Lord Dubs will not be joining us, but I am speaking before my noble friend Lord Judd—they have both spent many decades of their lives fighting for civil liberties. They will remember, I am sure, Maria Fyfe, who entered Parliament in 1987 and did so much over the years to champion women’s representation, but who sadly died this morning. I am sure that they and others will join me in sending condolences to her family and comrades in Scotland.

I shall speak specifically to Amendment 22 in the names of my noble friends Lord Hendy and Lord Hain, and moved very able by my noble friend Lady Chakrabarti, but I also support the other amendments in this group which argue that, should this Bill become law, CCAs could be used only to prevent or deter serious crime. The terms “preventing disorder” and being

“in the interests of the economic well-being of the United Kingdom”

are so imprecise that almost any campaigning group or trade union could be included. These criteria are potentially political and could be used simply to defend the status quo against anyone who challenges it.

It seems quite odd that this legislation could not wait until the findings of the Undercover Police Inquiry. As the inquiry progresses, it is hearing that police have been used to spy on any number of groups that were deemed to be “anti-establishment”, even when they were humanitarian organisations such as Operation Omega, which tried to provide humanitarian aid to then East Pakistan. One police officer sent into the group has said:

“They weren’t hurting anyone, they weren’t disturbing anyone. Okay, you could argue that we don’t like to see these things posted on our lampposts, you know, stuff like that.”


He was then asked:

“Did you hear them promote or encourage public disorder?”


He replied:

“That’s a difficult one to answer, because a lot of organisations recommend demonstrations and activity that would bring their cause to the attention of the press and thereby to the rest of the population.”


A demonstration is of course a legitimate form of campaigning, but it is unfortunately seen as illegitimate in some quarters.

The undercover work extended into the trade union movement. Trade unions are a legitimate and essential part of our democracy, as guaranteed by the ILO since 1949. Member countries, including the UK, are required to guarantee the existence, autonomy and activities of trade unions, and to refrain from any interference that would restrict this right or impede their lawful exercise. Despite this, the Metropolitan Police Special Branch established the industrial intelligence unit in 1970 to monitor what it saw as growing industrial unrest. There is, we understand, a present day equivalent in the industrial liaison unit of the national domestic extremism and disorder intelligence unit.

I have no idea what justification could possibly have been used to send spies into humanitarian organisations, political parties or trade unions, but I suspect that preventing disorder and it being in the interest of economic well-being of the United Kingdom will have been used. There can be no justification for this and it should be removed from the Bill.

On Monday we heard the Statement in the other place that there would be no inquiry at this time into the murder of Pat Finucane—even though there is no doubt that there was state collusion in his assassination. After 30 years, the Government will still not shine a light on this atrocious event. His death should serve as a reminder that Governments and their agents can lose the capacity for moral judgment when they convince themselves that only they serve the greater good.

We were told on Tuesday that these examples happened a long time ago and that things have changed. But while the Bill continues to cover more than serious crimes and includes subjective actions such as disorder and economic well-being, it is a danger to anyone involved in politics and trade unionism. We should never grant the legal right for covert actions against citizens whose only crime is to disagree with the Government of the day. This amendment would go some way to achieving that.

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For that reason, I believe that this group of amendments has raised some very important points indeed, which we must all take seriously. I do not want to live in a society in which the police have this as a useful technique, with certain, modest restraints. I want to live in a society where this is not normal and where, if it is needed, exceptionally, those grounds can be properly justified in terms of national priorities, in the interests of our people as a whole. Good will between the public and the police is crucial to our stability as a society, and the holding of public confidence in the police is crucial too. We must be careful that we do not place that in jeopardy.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The noble Baroness, Lady Blower, who appears next on the list, has withdrawn, so I call the noble Lord, Lord King of Bridgwater.

[Lord King of Bridgwater (Con) [V]]

My Lords, unlike, I think, every other speaker to these amendments so far, I do not support them. I see in them, once again, attempts to impose yet more conditions that may affect the effectiveness of the operation of undercover support and sources doing what I thought was generally agreed to be vital work in the interests of enforcement and the life of people in our country. I say at the start that a number of these things, and the worry about how these powers may be exercised, do not pay respect to the fact of the code of practice, which many have said should be required reading for everybody taking part in these debates. The importance of that code of practice is that it is going to have to be approved by both Houses of Parliament. That will be a very important protection, because it is under that code of practice that authorising officers issuing CCAs, and the Investigatory Powers Commissioner, will obviously be required to act.

I make no apology for repeating what I said on an earlier amendment in quoting James Brokenshire, the Minister for Security, when he gave the astonishing figures for a single year in London alone. The use of undercover sources resulted in 3,500 arrests, the recovery of more than 100 firearms and 400 other weapons, the seizure of more than 400 kilograms of class A drugs and the recovery of more than £2.5 million in cash. It also enabled, which I did not mention, the National Crime Agency to safeguard several hundred victims of crime, including from child sexual exploitation and abuse. Those figures alone, just from London in one year, surely leave nobody in any doubt of the importance of this vital source of support for preserving an orderly and law-abiding society. I make this point because, under the code of practice, which includes this question, others are seeking to add the word “serious” to “crime”. How does an authorising officer react when an informant comes and says, “There is a group of people who are starting to get together, I am not quite sure what they are up to, but I think there is a real risk that it could turn, later on, into something much nastier”?

When one looks at those figures I quoted from James Brokenshire, how many lives have been saved; how many people’s lives have not been disrupted; how much misery and poverty that might otherwise have entailed has been prevented? For these reasons, I am not persuaded of the need to add “serious” to crime; I think it might inhibit the operation of a properly authorised issuer of a CCA, who obviously has to use his judgment, and has to persuade the IPC as well that his judgment is correct and is in line with the code of practice.

I should also say a word about preventing disorder. We are living in extremely difficult and dangerous times at the moment. We know that the power of social media now makes it possible, in an instant, practically, to organise major demonstrations which may, in fact, be based on that new and horrid ingredient “fake news”. These may disrupt many people’s lives and may cost people’s lives. Although there are many very worthy causes—whether it is Black Lives Matter or Extinction Rebellion—pursuing very understandable and admirable objectives, none the less we also know that around the fringes of those organisations, or in the confusion that some of their demonstrations cause, other sources of crime can easily emerge and it often makes opportunities for gangs to commit many more crimes as well. So I would not delete “preventing disorder”, provided it is properly covered within the code of practice.

The other thing I would just add is about economic well-being. I totally support trade unions—I always have done and, as Secretary of State for Employment, I was obviously closely involved—and legitimate trade union activity. However, we all know that, within our lifetime, we have had one or two instances where that has not been the case. One instance was the miners’ strike, when Mr Arthur Scargill said that one of his objectives was to bring down the Government, and he was not averse, in the process, to accepting money from the Soviet Union in pursuit of that objective. It is to the credit of Neil Kinnock, now the noble Lord, Lord Kinnock, if I may say so, that he would not support him at that time, because Mr Scargill had not put the issue to a vote of the whole trade union movement.

I think we have seen here, and I understood at the beginning of this, that virtually all noble Lords recognise the vital importance of undercover source information and for there to be a proper system, a statutory system, under which they would operate. That is what I wish to see. I wish to see a thoroughly effective code of practice, thoroughly trained issuing officers and rapid and close contact with the Investigatory Powers Commissioner as they carry out their work.

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[Baroness Massey of Darwen (Lab) [V]]

My Lords, I shall speak to Amendment 56 on behalf of the Joint Committee on Human Rights, of which I am a member. This report was derived from consultations with many knowledgeable and concerned participants. My noble friend Lord Dubs, also a member of that committee, has already contributed significantly to these debates. Unfortunately, he is otherwise engaged this afternoon in unavoidable commitments, but I hope that he will be here to present Amendments 39 and 63.

Amendment 56 establishes a prohibition on the authorisation of serious criminal offences in similar terms to those appearing in the Canadian Security Intelligence Service Act 1985. The Joint Committee on Human Rights expressed concern that even the most serious offences, such as rape, murder, sexual abuse of children and torture, which necessarily violated basic human rights, were not excluded on the face of this Bill. Noble Lords today and previously have expressed grave concerns about this issue. The Home Office considered this necessary because it feared it created a checklist for suspected CHIS to be tested against. The Government’s position is that the Human Rights Act provides a guarantee against certain criminal conduct. However, it is noted in paragraph 40 of our report that, if a criminal gang or terrorist group were familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees of protections set out in the Human Rights Act. The committee did not consider it appropriate to legislate by providing open-ended powers while relying on the Human Rights Act as a safety net.

The report noted that the Human Rights Act has not prevented previous human rights violations by undercover investigators, or CHIS. For example, the Human Rights Act was in force for much of the period when undercover police officers from the National Public Order Intelligence Unit were engaging in intimate relations with women involved in the group that they had infiltrated. The committee also noted that other countries with similar legislation, including Canada, the US and Australia, had expressly ruled out CCAs ever enabling the most serious offences. I realise that this has been referred to before today. The report therefore concluded:

“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The next speaker on the list, the Lord Bishop of Carlisle, has, sadly, withdrawn, so I call the noble Lord, Lord Dubs.

[Lord Dubs (Lab) [V]]

My Lords, I was originally not going to be present for this debate, and I left the main thrust of the argument to my noble friend Lady Massey. I simply say that I endorse what the Joint Committee on Human Rights has said, and this has set the pattern for many of the debates this evening. I am fully in support of the arguments put forth by my noble friend Lady Massey.

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

We now come to the group beginning with Amendment 39. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear in the debate. I should inform the Committee that, if Amendment 39 is agreed to, I cannot call Amendment 40.

Amendment 39

Moved by

Windrush Compensation Scheme

Lord Lexden Excerpts

Monday 23rd November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I totally take that point on board. I agree with the noble Baroness that they might be frightened and that any notion of “state” might be frightening to them. As I have said, we have done quite a lot of outreach through church leaders, faith leaders and community leaders, but I shall certainly take that back. I know we will be reflecting on how far we have got with people coming forward and trying to make that process better, because clearly, more people should be coming forward.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the time allowed for this Private Notice Question has now elapsed.

Visas: Visitors from Peru

Lord Lexden Excerpts

Monday 16th November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I understand the noble Baroness’s point about visa application centres and some of the distances that people have to travel. We continually review our global visa operation to improve performance and accessibility so that people can make their applications as easily as possible.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the time allowed for this Question has now elapsed.

Child Trafficking

Lord Lexden Excerpts

Monday 16th November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

The noble Lord goes to the heart of the problem: traffickers are at the heart of all these awful crimes, some of which result in the deaths of people crossing the channel and suchlike. Safe and legal routes are at the heart of our philosophy, as my right honourable friend the Home Secretary has laid out.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, the time allowed for this Question has now elapsed.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Lexden Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, we will now proceed with the remaining amendments and debates. I will call Members to speak in the order listed in the annexe to today’s list. Interventions during speeches or before the noble Lord sits down are not permitted, and uncalled speakers will not be heard. Other than the mover of an amendment or the Minister, Members may speak only once on each group. Short questions of elucidation after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk. The groupings are binding, and it will not be possible to degroup an amendment for separate debate.

A Member intending to press an amendment already debated to a Division should have given notice in the debate. Leave shall be given to withdraw amendments. When putting the question, I will collect voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make this clear when speaking on the group. We will now begin.

Amendment 15

Moved by

Asylum: British Overseas Territories and Ferries

Lord Lexden Excerpts

Monday 5th October 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

It is very important that local authorities are not only warned of impending arrivals but consulted with and engage with the people arriving. Criminals should be assessed quickly and expeditiously, and I think that no noble Lord would disagree with criminals who need to be deported being deported quickly.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, all supplementary questions have now been asked.

Asylum System

Lord Lexden Excerpts

Monday 28th September 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

Clearly, France is geographically very close to us. We are in constant dialogue with France. We do not seek to replicate Dublin, of course, but in our reaching out to the EU with legal texts to see what happens after the transition period, we remain hopeful that those discussions will be fruitful.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, all supplementary questions have been asked.