National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

Moved by

[Lord Murray of Blidworth]

52: Schedule 2, page 73, line 17, at end insert—
“4A An application for an order under paragraph 3 or 4 may be made without notice to a judge in chambers.”Member's explanatory statement
This amendment provides that an application for a production order may be made without notice to a judge in chambers. Schedules 3 to 5 already make equivalent provision for orders under those Schedules.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, government Amendments 52 to 59 are minor and technical, and bring consistency across the police powers in the Bill by aligning Schedule 2 with equivalent provisions in Schedules 3 to 5.

The amendments serve several purposes. First, they ensure that applications made under Schedule 2 for production orders and explanation orders may be made without notice to a judge in chambers in England, Wales and Northern Ireland, or to a sheriff in chambers in Scotland. This means that, in cases where it could harm an investigation, an application may be made without notifying the defendant. For example, the police may require a production order to obtain evidence from a person suspected of preparing to conduct espionage. Notifying them of the application in advance may result in the destruction, concealment or alteration of that evidence.

Secondly, the amendments ensure that a production order made under paragraphs 3 or 4 of Schedule 2, or an explanation order made under paragraph 8, has effect as if it were an order of the court. This means that if a person fails to comply with the requirements of the order, they can be treated as being in contempt of court, which is a criminal offence punishable by up to two years’ imprisonment or an unlimited fine. Failing to comply with a production order or explanation order can impede a state threats investigation. To avoid damage to such an investigation, it is crucial that provision is made to hold to account those who choose to disregard these orders. This approach mirrors that of the account monitoring orders under Schedule 5 of the Bill and the equivalent production order power in terrorism legislation.

Finally, Amendments 56 and 57 simplify the way that the term “judge” is defined in Schedule 2, aligning it with the definition in Schedules 3 to 5. The amendments do not change the meaning or interpretation of “judge”; they just ensure the drafting is the same across the schedules.

I ask noble Lords to support the inclusion of these amendments.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am grateful to the Minister for that explanation. As he has explained, these amendments make provision for applications for production and explanation orders to be made without notice to a judge in chambers. The amendments also make it clear that the orders should take effect as if they were court orders, so that disobedience would be treated as contempt of court.

We of course accept that such orders should be sought and obtained without notice, where necessary; we would expect that, generally speaking, it would be so necessary, because, as I think the Minister pointed out, a warning that application was going to be made for such an order would encourage the persons holding the material to hide it or other evidence concerned or to concoct explanations and provide false support for such explanations. If the orders are made without notice, the person is caught unawares and the orders are more likely to be productive. We also accept that disobedience should be punishable as contempt of court, simply in order to give the orders teeth, which they ought to have.

However, I add one general point. These production and explanation orders are quite draconian in nature and represent a significant intrusion on privacy and liberty. We accept that the conditions set out in the Bill for making these orders are tightly drawn and that, if those conditions are met, the orders are justified. However, it is important—I am sure the Government accept this—that those applying for these orders, and judges scrutinising these applications, will need to be astute to ensure that the conditions set out in the legislation for the orders to be made are fully met.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am very grateful to the noble Lord for his remarks and I take on board what he says. These minor and technical amendments seek to bring consistency across the police powers in the Bill, as I have said, by aligning Schedule 2 with the equivalent provisions in Schedules 3 to 5. It is right that we are consistent across the Bill in its provisions and definitions, which these amendments seek to achieve.

Amendments 52 to 59 agreed.

--- Later in debate ---

[Lord Hacking (Lab)]

I will just say hear, hear—the Bill is far too long and far too complicated.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions. I speak first to Amendment 60, tabled by the noble Lord, Lord Coaker. First, I thank him very much for the frank way in which he posed his questions, and I am glad to say that I can answer the first tranche of his questions simply with yes. I will set out in more detail why that is.

The amendment relates to the power for the Secretary of State to designate sites where those arrested under Clause 25 can be detained. There was a lively debate on this topic in the other place, which led to the Government carefully considering this issue and amending the Bill to provide for the sites to be designated only if they are in the UK. As the noble Lord observed, this provision can be found at paragraph 1(1) of Schedule 6, and I can confirm that is indeed the case. That states that the power

“may be exercised only in relation to land or a building in the United Kingdom which is owned or controlled by a police force”—

so that is any police force.

The Government consider that the amendments to Schedule 6 in the other place have sufficiently clarified the need for and the intention behind this power and I understand that this satisfies the noble Lord’s concerns regarding where the sites may be located. Just to confirm, the power therefore extends to the MoD Police, the British Transport Police, ,the Civil Nuclear Constabulary, et cetera, and there are no special arrangements in relation to Northern Ireland.

Clause 25(6) confirms that a 24-hour detention period can be extended by a reviewing officer to a maximum of 48 hours. The first review is as soon as reasonably practicable after arrest and then this must be reviewed at least every 12 hours, obviously up to the maximum.

The noble Lord mentioned arrest abroad. UK constables do not have the power of arrest abroad and the powers therefore do not therefore extend to Armed Forces police abroad. Any relevant people would be arrested by local officers and extradition would be arranged in the conventional way.

I will return to the topic of oversight later but I can confirm that His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a statutory role in inspecting all police forces under Section 54 of the Police Act 1996, about which the noble Lord knows. That body regularly inspects all aspects of policing, including places of detention. Given that any sites designated under this power will be under the control of the police, they would automatically be subject to their inspection, and the Government therefore believe that there is no need to include a further statutory inspection regime as this will be duplicative.

I can confirm that it was never the Government’s intention to designate sites located outside the UK. This amendment clarifies the policy position. In Northern Ireland, the Police Service of Northern Ireland is subject to annual statutory inspection by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services under Section 41. Similarly, in Scotland, His Majesty’s Inspectorate of Constabulary in Scotland provides independent scrutiny of Police Scotland and the Scottish Police Authority. We do not consider it reasonable to interpret this to include locations under the temporary control of a police force, such as a crime scene.

Amendments 61 and 63 in the name of the noble Baroness, Lady Ludford, are to Schedule 6. They seek to implement two of the recommendations from the Joint Committee on Human Rights’ report on the Bill. The first amendment seeks to remove the ability for the police to delay a suspect’s access to certain rights while being detained under the arrest power in the Bill for solely asset recovery reasons; I will address this first, if I may.

If the police have intelligence to suggest that a detained suspect has property that is connected to suspected criminal activity—for example, cash—and might use their permitted communication with a named person or their solicitor to ask them to take steps to move cash or property on the suspect’s behalf, to hide evidence or otherwise ensure that the asset cannot be seized by the police, it is clearly right that the police should be able to delay that communication taking place while they seize those assets, gather associated evidence and ensure that crime does not pay. I believe that the safeguards written into the Bill as drafted are sufficient when delaying these rights. The direction to delay must be given by a senior police officer, who must have reasonable grounds to believe that allowing access to these rights at that point in the investigation will hinder recovery of the property.

Additionally, it is written into the legislation that the suspect must be allowed to exercise both these rights within the first 48 hours of detention, so there will not be a situation where a suspect is detained for longer than this without exercising these rights. More details on this process will be contained in the code of practice made under this part of the Bill, including the fact that any delay in these rights must be recorded in the custody record and the suspect must be informed of the decision. Similar provisions can be found in PACE Code H, which operates for detentions under the Terrorism Act 2000.

I turn to the noble Baroness’s second amendment—

[Baroness Ludford (LD)]

I apologise for interrupting but, before the Minister moves on to Amendment 63, can he explain something? It may just be my inability to see it but, in their response, the Government refer to

“proceeds from crime from state threats activity”.

I have not been able to find that phrase in the text of the Bill; it just refers to how there can be a delay in informing a family member or notifying a solicitor if

“the detained person has benefited from their criminal conduct”

and the recovery of the asset “will be hindered by” those rights being exercised. Where does it refer to proceeds of crime arising from state threats activity, so that one can see it being brought within the national security purview? I cannot see that in the text but I am sure that the Minister can point out how the response is justified on that point.

[Lord Murray of Blidworth (Con)]

Forgive me; the answer is that, in the text of the Bill, this is not limited to state threats proceeds of crime. The operation of the Bill is as I just described in my speech and, as I have already said, its safeguards are built into the statute itself.

The second amendment to Schedule 6 tabled by the noble Baroness seeks to remove certain circumstances whereby a review of a suspect’s detention may be postponed. There are various reasons why a review may need to be postponed. For example, the suspect may be receiving medical treatment and be unable to make representations on their continued detention to the review officer. It may be that there is a delay in the review officer arriving at a custody suite, or they may be reviewing another suspect’s detention if multiple arrests have been made in a short period.

It is impossible to predict all the possible circumstances and make specific provision for them in the legislation. The legislation does not provide for the review to be permanently postponed. It is required to be carried out as soon as possible, but this proposal provides for some operational flexibility. The code of practice—which, as I have said, the Government will publish in due course—will provide further information on reviews of detention, and we will state the requirement for any postponement of detention reviews to be recorded on the custody record. In the meantime, similar provision again can be found in the Police and Criminal Evidence Act code of practice code H, which operates for detentions under the Terrorism Act 2000.

With that, I conclude.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for that very helpful reply, which put on the record clarification of certain things, in particular that the word “constable” applies to all police forces across the UK. That was helpful in answer to the points raised by the noble Baroness, Lady Ludford. As the Minister will know, a number of regulations and codes of practice will be coming before Parliament with respect to the detention of people under these powers. They will require some quite careful consideration by Parliament.

With that, I beg leave to withdraw the amendment.

Migration and Economic Development Partnership with Rwanda

Lord Murray of Blidworth Excerpts

Tuesday 20th December 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I read the judgment this morning; it is a very comprehensive judgment and I respect it. However, it is astonishing to me that, on such a flagship issue, in which the Government have invested so much capital, judicial review has been awarded for all those claimants and, therefore, it is at the moment inoperable.

The Government chose to bring this arrangement through a memorandum of understanding, not a treaty, to avoid scrutiny and a proper ratification process by Parliament. We did our best in this House, through the International Agreements Committee chaired by the noble Baroness, Lady Hayter, to scrutinise this—but the Government chose a route to put this into place to avoid proper scrutiny. So can the Minister be clear today about what the legal, binding basis is on the commitments that have been provided by both parties to this MoU? What is the legal basis for the data-sharing arrangements that are in place?

In June, I visited the Hope Hostel in Kigali, the reception centre. A large banner at the entrance says, “Come as a Guest, Leave as a Friend”. That banner is adjacent to armoured gates with machine-gunned guards. The contract is awarded to a private company on an annual basis. That will run out in March, so will the Minister confirm that that private arrangement will continue from next March, and will he place a copy of the contract for the operation of the Hope Hostel in the Library of this House?

Some £20 million has been given to provide this centre. I saw nothing like £20 million-worth of facilities when I visited it in June. It had no suitable areas for those vulnerable to suicide risk or those who had come through routes of great danger. This is on top of the £120 million provided to the Government of Rwanda. That £140 million is totally inappropriate, given the desperate plight of those here at home, including those dying of diphtheria—which we thought we had got rid of in the Victorian age. As the Minister was unable to confirm it to me, I have an inaccurate understanding of how many unaccounted-for children there are. If he could update me on that, I would be very grateful. There is no guarantee on the timeframe, so when will the centre that we have paid £20 million for be operational?

When I asked the officials in Rwanda about the processing time for those seeking asylum, those in Rwanda for camps because of other conflicts said that the average time was up to 10 years. What commitment has been provided for the process time of those who will be received at the Hope Hostel? I hope that the Minister can be very clear with regards to that.

Finally, we cannot put a price on immorality, but £140 million is a dear price to pay for our reputation being so tarnished. On a previous question, the noble Lord, Lord Ahmad, referred to the Government’s moral compass. It is pointing in the wrong direction. The UK supported the people of Rwanda, some of the most vulnerable in the world, who are suffering from extreme poverty, with £73.5 million of assistance in 2019-20. This has been slashed by 69% to just £23 million this year—so we are paying £140 million to cover for failed policies at home while denying those most vulnerable in the world and Rwanda UK support. Is this not an immoral, unworkable and inappropriate scheme which, at the very least, should be put to a vote in this House?

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

I thank both noble Lords for their questions. I identified nine specific questions from the noble Lord, Lord Coaker, and I shall address those first.

I was asked about the first flight—I think the noble Lord, Lord Purvis, mentioned this as well. As both noble Lords will know from their careful study of the news reports, there is a hearing to determine remedies in relation to the challenges against the Secretary of State for the Home Department on 16 January. At that hearing, the claimants’ counsel and the Home Office will make representations regarding, among other matters, any applications to appeal, and the court will decide the next steps, if any, in the UK litigation. We know that more legal challenges are likely and we will continue vigorously to defend this action in the courts. Of course, we do not routinely comment on operational matters and will not be giving a running commentary on the numbers of people or those in scope to be relocated to Rwanda on the first flight. The Home Office’s focus remains on moving ahead with the policy as soon as possible and we stand ready to defend against any further legal challenge.

I was also asked about the potential capacity of the Rwanda scheme. The volumes envisaged under the MEDP memorandum of understanding are uncapped. The numbers of persons to be relocated to Rwanda under the terms of the memorandum of understanding will take account of Rwanda’s capacity to receive them, and will comply with its obligations and our obligations under the MoU in respect of that group. Resources are being provided under the MoU to develop the capacity of the Rwandan asylum system. We have already provided £20 million up front to support set-up costs, for example, and we anticipate the numbers being relocated ramping up quickly once the partnership starts to operate, and in line with Rwanda’s growing capacity.

The noble Lord, Lord Coaker, asked about Hope Hostel and its capacity of 200 people. The Government of Rwanda have addressed this explicitly and made clear that, while the first accommodation site, Hope Hostel, has a capacity of 200, the partnership itself is uncapped. In any case, individuals being relocated will be accommodated in these facilities only as a temporary measure, before being moved into regular housing for the long term.

I was then asked about the potential cost of the scheme. As part of the partnership—and it is, after all, a migration and economic development partnership agreement—the United Kingdom has invested an initial £120 million into the economic development and growth of Rwanda. This must be set in the context of the fact that the Home Department is currently spending in the region of £7 million a day on hotel accommodation for asylum seekers. Funding will also be provided to Rwanda to support the delivery of asylum operations, accommodation and people’s integration. Every individual’s needs are different, and funding will be provided only while an individual remains in Rwanda.

The noble Lord, Lord Coaker, asked about the cost per person. This is a long-term policy which is expected to last for five years. Costs and payments will depend on the number of people relocated, when this happens and the outcomes of individual cases. As the noble Lord noted, a full value for money assessment was undertaken as part of the accounting officer’s advice provided to Ministers in respect of the partnership agreement. Needless to say, actual spend will be reported as part of the annual Home Office reports and accounts in the usual way.

The noble Lord, Lord Coaker, also mentioned that part of my right honourable friend the Home Secretary’s Statement yesterday in which she stated:

“A myth still persists that the Home Office’s Permanent Secretary opposed this agreement. For the record, he did not. Nor did he assert that it is definitely poor value for money. He stated, in his role as accounting officer, that the policy is regular, proper and feasible, but that there is not currently sufficient evidence to demonstrate value for money. As he would be the first to agree, it is for Ministers to take decisions having received officials’ advice.”—


I was also asked whether the decision of the court demonstrated some failure on the part of the Home Office to consider evidence of modern slavery. The Home Office will take on board the comments made about its decision-making process; as my right honourable friend the Home Secretary said, it has already taken steps to improve relevant decision-making. In light of the judgment handed down yesterday, it will continue to improve and strengthen the decision-making process in line with the court’s recommendations to ensure that decisions are as robust as possible.

Decisions on whether to relocate individuals to Rwanda are made on a case-by-case basis, depending on individuals’ circumstances at the time and in accordance with the inadmissibility guidance. For every stage in the process, from initial arrival to any potential relocations, our approach is to ensure that the needs and vulnerabilities of asylum seekers are identified and taken into consideration where appropriate. We will only ever act in line with our commitments under our international legal obligations, including those that pertain to potential and confirmed victims of modern slavery.

I was asked about the provision for families in the scheme. Families with children are potentially eligible for relocation but, as my right honourable friend made clear, the initial process will focus on adults. A further assessment of Rwanda’s capacity to accommodate children will be undertaken before this occurs. Everyone considered for relocation will be screened and interviewed and have access to legal advice. Decisions will be taken on a case-by-case basis. Nobody will be removed if it is unsafe or inappropriate for them.

The noble Lord, Lord Coaker, asked about the contents of the new legislation. I am afraid that he will have to wait and see. As the Prime Minister promised in the other place two weeks ago, a Bill can be expected in January, when the noble Lord will be able to see how that new legislation facilitates and assists the implementation of this scheme.

I was asked about the Rwanda-Israel agreement. As Lord Justice Lewis made clear at paragraph 67 of the judgment of the Divisional Court, it did not consider the nature and terms of that agreement to be critical for its purposes. It was clear to the court, as is clear from the judgment, that it is a different agreement and there are no parallels to be drawn from the Rwanda-Israel agreement.

While the noble Lord, Lord Coaker, may suggest that this is an unworkable and expensive plan, we on these Benches notice that the Labour Party has failed to provide any viable alternative—simply saying that one will tackle the criminal gangs and potentially provide more safe and legal routes will not serve the purpose of reducing the allurement to people of crossing the channel.

The noble Lord, Lord Purvis, asked about the legal basis for the memorandum of understanding. That is a well-known basis for an understanding in international law, and its lawfulness was upheld by the Divisional Court in its judgment yesterday. I simply do not agree that there is anything immoral about this policy. Protecting people and avoiding them considering that it is worth taking their lives into their hands by crossing the channel in small boats must be the moral thing to do.

[Baroness D'Souza (CB)]

My Lords, I thank the Minister for his careful explanation, but how confident is he that the criteria used to assess the asylum status of people being sent to Rwanda by the UK will conform closely with international standards? I ask this because President Kagame has publicly stated that he is interested in abstracting, as it were, the skills that he feels his country lacks and needs from the refugees who will be coming his way.

[Lord Murray of Blidworth (Con)]

Yes, certainly. The starting point is that Rwanda is a signatory to the 1951 refugee convention and the seven other principal United Nations conventions. As part of the memorandum, it was clear that the Rwandan Government agreed to adhere to international norms in the consideration of all applications for asylum and protection.

[Baroness Lister of Burtersett (Lab)]

My Lords, according to refugee organisations, although we were told that unaccompanied children would not be removed to Rwanda, some have already been issued with notices of intent for so-called relocation because they have been assessed incorrectly as adults. The Statement conveniently left out the judge’s warning that the Home Secretary must consider properly the circumstances of each individual claim. What therefore are the procedures and safeguards to ensure that no child is wrongly issued with a notice of intent?

[Lord Murray of Blidworth (Con)]

As I have already noted to the House, there is no in principle position that children may not be removed under the scheme; it is simply not presently the intention of the Government to do so. As I made clear only recently at Questions, age assessment is something that the department is looking at very closely in light of the new provisions under the Nationality and Borders Act. As the noble Baroness will be aware, since 2016, in half of the cases where age was disputed, the age was ultimately found to be over 18, so we have to be very careful about people who maintain that they are children. Of course, it is very important that those under 18 are carefully protected from those who claim to be under 18 but are not. As I say, it is the intention of the Government to remove families at a point in future when the Rwanda scheme is ready for that purpose.

[Lord Campbell of Pittenweem (LD)]

My Lords, does the Minister agree that this Statement could have been written by Dr Pangloss? I pray in aid the paragraph which says that:

“Being relocated to Rwanda is not a punishment but an innovative way of addressing a major problem to redress the imbalance between illegal and legal migration routes.”


No one has asked a potential migrant whether they think it is not a punishment. I would be very surprised indeed if those faced with such a decision did not take exactly the view that it is. It is true that the Court of Appeal has held that the scheme is legal, but I doubt very much that the legal consideration of this proposal will rest with the Court of Appeal. Finally, the Government seem to say that it is not only legal but moral. We all have to define our own moral compass; I have to tell the Minister that I do not define mine in any way that supports this Government or this proposal.

[Lord Murray of Blidworth (Con)]

I reassure the noble Lord that it is not a punishment. The purpose of the policy is to remove the incentive to make dangerous and illegal journeys into this country, under the provisions of the Nationality and Borders Act.

[Lord Alton of Liverpool (CB)]

My Lords, does the Minister accept that some of this seems very peripheral and on the margins when you consider—as Cross-Bench Members pointed out in a debate initiated earlier this year, which I commend to the Minister—that there are some 82 million people displaced in the world today, with 43% of them children? It was argued throughout that debate that, in the circumstances, we must call for an international remedy to this crisis. The debate called for a conference to be convened among all the nations and for the root causes to be tackled. Does not the Minister agree that that is what is needed now, rather than simply coming forward with very controversial measures which are so marginal in trying to tackle the problem of so many millions of people?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

The noble Lord is entirely right to say that there is an international crisis with migration given the conflicts and national issues that are at present troubling our world. There is clearly room, as was canvassed during the debate held two weeks ago, and proposed by the most reverend Primate. Clearly these are very broad issues, and the world needs to address the question of migration. However, the Government cannot tolerate illegal and unlawful flows of people in circumstances where those people are putting themselves in danger in the channel.

[The Lord Bishop of St Albans]

My Lords, in the recent Statements, and in the Prime Minister’s comment piece in the Telegraph, there was a stated commitment to create more safe and legal routes, but no information was given on the timeline or the proposed numbers, and there was no indication of the sorts vulnerabilities that have been identified. The Rwanda partnership is one among many deterrence policies, but the worry is that, in the absence of safe routes, it seems very unlikely that that will be sufficient. When will the Government bring forward plans and proposals for these additional safe and legal routes?

[Lord Murray of Blidworth (Con)]

As the Prime Minister has made clear, the initial priority for the Government is to prevent the continuation of dangerous journeys across the channel. It is the Government’s intention in due course to open fresh, safe and legal routes. However, for the present, we have in this country a significant number of people seeking refuge and asylum, and we need to process those claims. In the view of the Government it is simply not the case that further safe and legal routes at this stage would have any effect in reducing channel crossings.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I would like to follow up the question put by the noble Lord, Lord Purvis, which was not responded to. The court may have said that this is legal but it has not been agreed by Parliament. The 1924 Ponsonby rule indicated that any significant MoU or similar agreement should be brought to the House. By doing this under an MoU, it never came under CRaG, and it has never been approved by Parliament. Does not the Minister think that something as significant as this should be done by Parliament and not by diktat of the Executive?

[Lord Murray of Blidworth (Con)]

The Government’s view is that the method of the agreement that was reached with Rwanda was lawful and appropriate, and so, with respect, I am afraid I must disagree with the noble Baroness.

[Baroness Hamwee (LD)]

My Lords, the Minister said that each person will be considered on a case-by-case basis, and quite right too, provided that that is not simply a swift tick-box exercise. He was perhaps lucky enough to have missed the long and late debates in this House on the age assessment of young people. I have to say that, to my mind, even for a young person aged 18 and a half, it would be inappropriate to send them to a place which, as I understand from my noble friend, has no child facilities as part of the arrangements. If there is to be no removal where removal would be inappropriate to the individual, how will that affect getting through the backlog that we have heard about recently from the Home Office?

[Lord Murray of Blidworth (Con)]

As we have seen from the judgment given by the court, there is nothing in principle unsafe about Rwanda, and few indeed will have reasons relating to them as to why Rwanda would be unsafe for them.

[Lord Walney (CB)]

The Government have given at least initial costings to the Rwanda plan, as has been widely referenced in the House today. However, as far as I am aware, there has not been any costing at all of the suite of measures in the agreement with Albania last week—neither the policing measures nor the economic incentives to try to bind in the Albanian Government and deter people coming across. Can the Minister give costings now, or at least say which of these two schemes the Government anticipate being the greater burden to the taxpayer over the medium and long term?

[Lord Murray of Blidworth (Con)]

The judgment about which these questions are being asked relates to those removed to Rwanda. Of the 40,000-odd people who have crossed the channel illegally during the past 12 months, 13,000 have been Albanians, and a large proportion of them have been single young men. It is the Government’s intention, following the recent agreement with the Government of Albania and decisions taken in such cases, to return them to Albania in the light of the assurances provided by the Albanian Government. Clearly it is cheaper to remove to Albania than it is to Rwanda. I should note that Albania is not only a NATO member but an EU accession country and a signatory to the European convention against trafficking. It is our hope to use both devices to bear down on illegal crossings of the channel.

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Baroness Bennett of Manor Castle (GP)]

My Lords, I apologise that I am not able to let the noble Lord, Lord Kerr, in; it is not in my power.

As both the Front-Bench questioners mentioned, despite the fact that the Statement makes no reference to it, the judges found that the cases of the individuals affected on the Rwanda flight were handled so chaotically and inappropriately by the Home Office that they should never have been on that flight in the first place. This is interesting when you note the rather slighting way in which the action of the European Court of Human Rights is referred to in this Statement, given that it was absolutely crucial for the rights of those individuals, as acknowledged by our court. None the less, those cases were clearly rushed.

The Prime Minister’s Statement this week on so-called illegal immigration—it should be stated clearly in your Lordships’ House that no person is illegal and every person is entitled to flee and seek refuge in cases where they need asylum—spoke of handling cases in days or weeks rather than months or years. How will the Government fairly, legally and justly handle cases, given what happened in the rushed circumstances of this case?

[Lord Murray of Blidworth (Con)]

If I may, I will turn first to the point made by the noble Baroness in respect of the Rule 39 indication made by the Strasbourg court in one of the cases of those to be removed on the initial Rwanda flight. I point out to the noble Baroness that, domestically, the Divisional Court and the Court of Appeal refused to grant an interim injunction, and the President of the Supreme Court in the United Kingdom refused permission to appeal against that decision. As was revealed during yesterday’s debate in the other place, it seems that the Russian judge granted the Rule 39 indication without hearing submissions from the UK Government and without providing any formal avenue to appeal against that decision. I do not accept that there was any automaticity about the interim relief afforded by the Strasbourg court.

I turn to the judgments on the eight specific written decisions. As I have already noted, the department has accepted the criticisms of the court, revoked those decisions and will redetermine them. It has revised and improved the decision-making process to ensure that the errors highlighted by the court will not be repeated.

[Lord Stirrup (CB)]

My Lords, further to the question from the noble Lord, Lord Alton, people smuggling is a crime, and not just a cross-channel crime, but we seem currently to be more interested in addressing the victims of the crime than the perpetrators. Surely one of the purposes and main themes of any international conference and expanded international effort should be much more effective, co-ordinated and hard-driven law enforcement across a spread of countries, targeting the traffickers themselves. What activities are the Government undertaking to pursue this and what progress, if any, has been made?

[Lord Murray of Blidworth (Con)]

I agree with the noble and gallant Lord. Clearly, international co-operation is vital. That is one of the five limbs that the Prime Minister outlined in his Statement, and the agreement with Albania is part of that. It is a sad fact that a good deal of the criminality in the channel arises through the actions of Albanian gangs who cross borders around Europe. We are working with our European friends and with great vigour to address this criminality. The noble and gallant Lord is entirely right that this is an important part of the limb. The Rwanda scheme is just one part of a wider picture.

[Lord Paddick (LD)]

My Lords, the Minister has said that children may be sent to Rwanda, but my understanding is that there are no facilities for children in Rwanda. If an asylum seeker is determined to seek refuge in the UK, having, for example, family members here, what is to stop them from making their way from Rwanda across Africa, across Europe, and across the channel to the UK?

[Lord Murray of Blidworth (Con)]

Forgive me; I said earlier to the noble Lord, Lord Coaker, that families with children are potentially eligible for relocation, but the initial process will focus on adults. A further assessment of Rwanda’s capacity to accommodate children will be undertaken before this occurs. That is the Government’s position in relation to children. Regarding whether asylum seekers can leave Rwanda and come back here, in theory they could leave Rwanda, but one hopes that they would not be able to avail themselves of the criminal gangs to smuggle them across the channel because we would have broken the gangs’ business model.

[Baroness Lister of Burtersett (Lab)]

My Lords, I may have misunderstood, but I think the Minister said that unaccompanied children can be sent to Rwanda. Back in July, the noble Baroness—

[Lord Murray of Blidworth (Con)]

It is not unaccompanied children but families with children.

[Baroness Lister of Burtersett (Lab)]

I was going to ask specifically about unaccompanied children, but I thank the Minister.

[Lord Lexden (Con)]

What is the total amount that the Government have spent so far in legal fees in attempting to implement this policy? What is the record of the Rwandan Government in protecting, upholding and safeguarding the rights of LGBT people?

[Lord Murray of Blidworth (Con)]

I am afraid that I cannot answer the noble Lord’s question because the litigation is ongoing. One of the issues that will be canvassed on 16 January is costs. I assure my noble friend that we will be seeking costs against those parties who have lost in respect of their challenges to the Government.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the Minister has referred a number of times to stopping people coming across the channel in small boats. If the Government are successful in that, what assessment have they made of other routes that people would be likely to attempt and how much more dangerous they are likely to be?

[Lord Murray of Blidworth (Con)]

Obviously, the Home Office is alive to all the possible opportunities. The noble Baroness will not be surprised if I do not outline them at the Dispatch Box. Clearly, careful consideration of any displacement activity is undertaken, and steps are being taken to address any other possible vulnerabilities.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I did not hear an answer from the Minister to the question asked by the noble Lord, Lord Lexden, on LGBT people in Rwanda. Perhaps he would like to answer now.

[Lord Murray of Blidworth (Con)]

I heard a question from the noble Lord, Lord Lexden, about the costs of the action. Perhaps the question could be outlined again.

--- Later in debate ---

[Lord Lexden (Con)]

I do not normally have any difficulty in making myself heard, and I did indeed put that second question.

[Lord Murray of Blidworth (Con)]

I am very grateful to the noble Lord, whom I hope will forgive me. I must have been focusing so intently on his question about costs that I did not hear this. My apologies. The court considered all the allegations made by the UNHCR and the parties in the litigation concerning the safety of Rwanda and concluded that the Secretary of State was correct that Rwanda was a safe country, including for LGBT people.

[Lord Campbell of Pittenweem (LD)]

That is not an answer.

[Lord Murray of Blidworth (Con)]

With respect, I think that it is an answer, so there it is.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group relates to the new offence of obtaining or disclosing protected information. Both amendments pertain to what information should be included in this offence. While the offence currently applies to all restricted information, Amendment 4, moved by the noble Baroness, Lady Ludford, would confine the offence to “secret” or “top secret” information. This amendment reflects recommendations by the JCHR.

His Majesty’s information assets may be classified into three types: “official”, “secret”, and “top secret”. The practical effect of the amendment is therefore to exclude the disclosure of “official” information from the offence. However, according to a 2018 Cabinet Office paper, official information could have

“damaging consequences if lost, stolen or published in the media”

but is

“not subject to a heightened threat profile.”

The Official Secrets Act 1989 includes offences on the disclosure of each classification of information. Amendment 6, tabled by the noble Lord, Lord Marks, and which the noble Lord, Lord Purvis, put his name to, leaves out part of the definition of protected information, which states that

“it is reasonable to expect that access to the information, document or other article would be restricted in any way”.

As noted by the noble Lord, Lord Marks, and in the Explanatory Notes, this is a subjective view of the information.

Given that security officials and civil servants would likely have knowledge of whether or not information is restricted, the inclusion of this line, which would create an offence for when a person should reasonably expect it to be restricted, could impact journalists and civil society. I therefore think that this is an opportunity for the Minister to clarify how he expects that people should be able to reasonably expect that information is restricted or not. I look forward to his response.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I thank all noble Lords, and the noble Baroness, for their contributions to this short debate. I also thank the Joint Committee on Human Rights for its report and its close scrutiny of the Bill. I take the opportunity to confirm that the Government’s response has been published today, and I have asked for a copy to be placed in the Library of the House.

The Government consider that limiting what can be captured under “protected information” to specific security classifications, as the noble Baroness’s amendment seeks to, risks creating loopholes within the provision that could significantly undermine the operational utility of the offence. There are already limits to what “protected information” covers: protected information is any information, document or other article, where, for the purpose of protecting the UK’s safety or interests, access to it is restricted, or it is reasonable to expect that access would be restricted. I therefore suggest that there lies the answer to the question posed by the noble Lord, Lord Ponsonby. Moreover, the current definition of protected information would cover instances where information may have been misclassified but would still be extremely harmful if shared widely.

In contrast to the proposed amendment, the current definition of protected information also includes instances where seemingly less sensitive unclassified information or lower-classification information from within a government building or on a government computer system was obtained but could undermine the safety of the United Kingdom if disclosed to a hostile actor.

To answer the question asked by the noble Lord, Lord Marks, this could include the floor plans of a government building or even an organisational chart of a team working within that building. There are many examples of official documents at lower classification levels that may also be harmful if disclosed, such as information about a UK trade deal with another country. It is imperative that this breadth of information is also covered within the definition.

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[Lord Purvis of Tweed (LD)]

The “foreign power” test, which we will come on to later in the Bill, is extremely broad. Under Clauses 29 and 30, the “foreign power” test can cover the public service broadcaster of Canada. So, if someone who believes that our Government are committing wrongdoing provides a document to the public broadcaster in Canada because they believe that our Government are doing wrong, which is in the global interest, would that be covered, with potential life imprisonment, under this Bill?

[Lord Murray of Blidworth (Con)]

It would be the case only if those three tests that I have just described are met for the purposes of the offence in the Bill. So it would have to be that the information was protected, that the person ought reasonably to know that, and that its disclosure was prejudicial to the safety or interests of the UK. I imagine that will be the topic of some debate in the context of the hypothetical example that the noble Lord mentioned. It also has to be done with the intention to benefit a foreign power. I cannot see that, in the hypothetical situation the noble Lord mentioned, that issue realistically would arise because the combination of these tests means not only is the proposed offence proportionate but an appropriately high bar has to be met to bring a prosecution under this clause. The Government therefore consider that the definition of protected information is justified and cannot accept the proposed amendments. I invite the noble Baroness, Lady Ludford, to withdraw her amendment.

[Lord Marks of Henley-on-Thames (LD)]

Following up on my noble friend Lord Purvis’s question, would it not probably be in the interests of Canada in the example he gave to expose wrongdoing on the part of the Government of the United Kingdom? The Government of the United Kingdom might define the interests of the United Kingdom in accordance with government policy in a way which was inimical to the interests of Canada and the offence would still be committed.

[Lord Murray of Blidworth (Con)]

I find the hypothetical example that the noble Lord postulates hard to follow, because it seems difficult to envisage a situation where a prosecutor could conclude in those circumstances that there was a prejudice to the Government of the United Kingdom and a benefit to the Government of Canada, and that the other elements were present. It seems a most unlikely scenario.

[Lord Purvis of Tweed (LD)]

I would just like to make sure the Minister is very clear with the Committee. All the decisions that would take place would have to have an objective view that that foreign power benefits. But in my reading, the Bill does not state that. It is simply that providing information to an authority of a foreign Government, which could be a public sector broadcaster such as CBC, is under this Bill. No one has to make the decision that that public broadcaster is then seeking to benefit the Canadian Government. That is not in this Bill.

[Lord Murray of Blidworth (Con)]

It is the intention to benefit that foreign power that is in this Bill, and it seems to me that that is a sufficiently clear and adequate definition to afford protection under the proposed section.

[Baroness Ludford (LD)]

My Lords, I was just looking up to see whether the words “intended to benefit a foreign power” were actually in the Bill, but I did not have time. In skimming through, I did not see them.

The Minister’s response has not really reassured me. The lack of definition of “interests of the UK”, with a question mark over what that means and how you could conflate the interests of the country and the interests of the current Government, coupled with the potentially wide definition of “restricted”, suggests, to myself and my noble friends on these Benches at least, a lack of precision and an opportunity that is too wide, especially considering that the penalty that could be faced is life imprisonment. Surely, there is an onus on us to secure a tight definition of offences in this Bill.

The other missing element, which we will come to in further discussions, is the lack of a public interest defence or a whistleblowing defence. What we are facing here is considerable uncertainty about what the real scope of the offence could be. As my noble friend Lord Marks said, the term “restricted in any way” is so undefined, it could cover innocuous but controversial documents, which could be restricted to prevent embarrassment. That is the discussion we keep having on journalism and whistleblowing: we should not open the door to the criminalisation of obtaining or publishing material that could be embarrassing to the ruling party.

I scribbled some notes, but I am afraid I cannot remember which noble Lord made this point. I think it was the noble Lord, Lord Anderson. How are we meant to know what non-classified information is protected? It could apply to anything, however innocent, that was not published. If the Government have a document that they regard as restricted, even though it is not classified, the fact that it has not been published would mean it was restricted, although it may not be damaging except possibly to the reputations of the Government or Ministers.

If I were to get hold of a document saying that a Bill—for the sake of plucking something out of the air, let us say the Northern Ireland Protocol Bill—is designed to assuage some elements of political opinion in the party in power but is highly damaging to the diplomatic and economic interests of the United Kingdom, would that fall within the terms of the offence under Clause 1? In those circumstances, what is the nature of the restriction? What is the harm committed and what is the test of UK interests?

We keep coming back to the considerable grey areas in this whole package around Clause 1 and other clauses. I think we will want to explore this matter further. Otherwise, we are driving a coach and horses through the exercise of freedom of expression and other rights under the European Convention on Human Rights, which for the time being the UK is still a party to.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, we all hope that the noble Lord, Lord Pannick, will not be criminalised by this Bill, but we look forward to the Minister’s response and for the exemptions to which the noble Lord referred to cover him.

I want to make a couple of brief remarks, again supporting what the noble Lord, Lord Marks, is trying to do, which is to narrow the focus—that has been the subject of much of the debates have had on the various amendments. This amendment would require an intention that the conduct will prejudice the safety or security or defence interests of the United Kingdom and apply that to a number of clauses. The noble Lord, Lord Marks, has outlined quite adequately why a discussion about that and a decision for the Government are needed. I hope that the Minister will explain why the Government do not think it is necessary rather than just dismissing it.

I wanted something to be clarified, notwithstanding the fact that it may be a simple response. On visiting many military bases, one finds people outside them taking photographs and numbers and watching the activity because it is a pastime; it is something that is of interest to them. I do not think that the Bill will criminalise that, but on behalf of people who have an interest in something that I personally would not have an interest in doing, I wonder whether the Minister could clarify it. I have seen people taking photographs at RAF bases of the planes taking off. It is simply something of interest to them. It would be helpful for the Minister to clarify that they would not be caught by the Bill, even if unintentionally.

The noble Baroness, Lady Jones, was right to remind us about intention. It is important. We will come to the public interest debate later, but she referred to journalists and whistleblowers, who risk being criminalised even though their intention is not to undermine national security. That will take us to the public interest defence debate that we will get to later in the Bill.

In answer to the points and amendments from the noble Baroness, Lady Ludford, I think that the JCHR amendments—whether or not they are all right, and we heard a debate earlier on about them—are really important for the JCHR to have put before the Committee. What it is essentially saying is, “We think this is possibly something which impacts on the freedoms that we enjoy in our democracy”, freedom of expression being the one that the noble Baroness just referred to. The Government seek to modernise the national security law, which we all agree with—there is no disagreement in the Committee about that—but the noble Baroness, Lady Ludford, should not apologise for the JCHR; rather, we should congratulate it on coming to all of us and asking us to justify what we are doing and on asking the Government to justify what they are doing in the name of national security. There is a compromise to be made sometimes between national security and complete freedom to do X, Y or Z. All of us accept that. The debate, as we heard on earlier amendments, is where you draw the line. I, and other noble Lords, think it is important—whether in respect of this group or others—that a debate takes place in this Parliament, and we should attempt to do better at defining what we actually mean rather than just leaving it to the courts.

I say to the noble Baronesses, Lady Ludford and Lady Jones, and to others who continually remind us about the JCHR that I am sure it is sometimes immensely irritating to the Government, but that is the job. That, in a non-flippant way, is important, because there are compromises with freedom of expression, freedom of association, freedom to do X, Y or Z, and freedom for people to go about doing things exactly how they want to. It is a price we pay for our national security; how high that price should be is something we should not flinch from debating in this House.

The amendments from the noble Lord, Lord Marks, seek to put intent into these offences. If the Government do not believe that is important, it is necessary to argue the case as to why. On whistleblowers, journalistic freedom and so on, which the noble Baroness, Lady Jones, mentioned, I am sure we will come to that debate later when we discuss the public interest defence. I finish by saying again to the noble Baroness, Lady Ludford: more power to your elbow.

[Lord Murray of Blidworth (Con)]

My Lords, I thank noble Lords for another very interesting short debate. These amendments seek to amend or add a safety or interests test to the various offences throughout the Bill. I will address each offence separately, given the different effect each amendment will have on each offence.

Amendments 12, 15 and 16 would narrow the scope of the offence of assisting a foreign intelligence service, so that the offences would apply only to assistance that would, or is intended to, prejudice the safety or interests of the United Kingdom. The Government reject these amendments. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed would be inherently prejudicial to the safety or interests of the UK. I pause, as here lies at least some explanation to the noble Lord, Lord Pannick, who none of us want to see in the dock in Court 4 of the Old Bailey.

Creating an additional legal test to prove beyond reasonable doubt why that activity is prejudicial would add an unnecessary hurdle for a prosecution. The noble Lord, Lord Marks, asked why the Government are criminalising assisting a friendly foreign intelligence service in the case of Mossad. The noble Lord, Lord Pannick, and the noble Baroness, Lady Manningham-Buller, also dealt with this example. I would say that we are criminalising covert assistance and I highlight the additional safeguard of the public interest test in the prosecution. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed to would be inherently prejudicial.

We would be happy to consider further the point raised by the noble Lord, Lord Pannick, on the drafting of Clause 3, but need more information about that hypothetical situation. Who would counsel be advising and when? For example, is he advising a foreign intelligence service which has an agreement to operate in the UK? In those circumstances, the prosecutor’s options would of course be very different.

On Amendment 16, the existing distinction between activities taking place inside the UK and those taking place overseas was deliberate. For activity taking place overseas, Clause 3(4) requires the conduct to be prejudicial to the safety or interests of the UK. This has been done to ensure that we target activity overseas which has an appropriate link to the United Kingdom. On this amendment, and Amendments 12 and 15, it is the Government’s view that activity taking place inside the UK, where not covered by the defences in Clause 3(7) and without even informal agreement or consent, is inherently prejudicial to the UK’s safety or interests.

As I understood the example from the noble Baroness, Lady Ludford, of a French citizen working in a bar or a bank, surely the answer is that they could simply call 999. I do not think there is any need to tighten up the definition in the context of the example she gave. In further response to the points the noble Baroness raised, I quote from paragraph 43 of the Government’s formal response to the JCHR report:

“Alerting a foreign intelligence service to a potential terrorist plot against the UK would not be conduct in relation to UK activities by that intelligence service. If the UK and France have an agreement to work on such activity together in the UK then that would fall under one of the defences available.”


Regarding Amendment 19, it is the Government’s view that an individual who knew, or reasonably ought to have known, that their conduct has a purpose that is prejudicial to the safety or interests of the United Kingdom should not be outside the scope of the offence simply by virtue of it not being the intention behind the activity to cause harm to the UK. To require the higher level of intention that this amendment seeks to introduce would create gaps that would jeopardise our ability to prevent harmful activity at the sensitive sites these provisions seek to protect. The Government consider it correct to penalise such conduct irrespective of the specific intention of the perpetrator, so long as they have, or should have, knowledge of the damage their action could cause. The Government therefore cannot accept the proposed amendment.

I will address Amendments 20 and 21 together, given that they both would add some variation of the safety or interests of the UK test to Clause 5. For the current Clause 5 offence to be committed, a person must engage in specified conduct in relation to a prohibited place that is unauthorised. They must know, or ought reasonably to know, that their conduct is unauthorised. This therefore protects those who have no reason to know that the activity they are conducting at that specific location is not authorised. There is no requirement to prove intent against the United Kingdom, as the offence is aimed at circumstances where activity is unauthorised but it cannot be established that a person had a purpose they knew, or reasonably ought to have known, was prejudicial to the safety or interests of the UK. For example, if a person trespasses on a site that they know is a prohibited place and steals something from it, that is not on the face of it damaging to the safety or interests of the UK. This is reflected in the lower maximum penalty for this offence of six months’ imprisonment.

The Government consider that including a further condition to prove that conduct is prejudicial to the safety, security or defence interests of the UK significantly reduces the utility of this offence and creates an unhelpful overlap with the Clause 4 offence. This would result in these provisions not being able to capture the full range of potentially harmful activity that prohibited places face. I add that it would seem clear that the innocent photographer taking pictures of RAF aircraft at an air show would not be caught by this offence for the reasons I have set out.

Amendment 47 would add an additional condition to the offence provided in Clause 15(1). The Government reject this amendment because it would create an additional and unnecessary evidential burden to overcome, severely limiting the efficacy of the offence at preventing hostile foreign intelligence activity against the UK. I suggest that no one would ever be prosecuted in the hypothetical situation advanced by the noble Lord, Lord Marks.

The effect of the amendment would be to require the person committing the offence to know, in all circumstances, what the foreign intelligence service intended to do through the provision of the relevant material benefit. Furthermore, the prosecution would be required to prove that knowledge in court on the basis of admissible evidence, which would be a difficult task.

Were this offence to be amended as suggested, it could be simply circumvented by the foreign intelligence service ensuring that the person who would otherwise commit the offence is not told what is intended. In such circumstances, conduct as set out in the offence as drafted would not be a crime. It is the Government’s view that a foreign intelligence service funding operations in the UK is inherently prejudicial to the safety or interests of the United Kingdom.

As to Amendment 49, noble Lords seek to include an additional element of intent as part of the preparatory conduct offence under Clause 16, through the addition of a provision requiring proof that persons engaged in preparatory conduct were acting with a purpose that they knew would prejudice the safety or security or defence of the United Kingdom. In the Government’s view it is unnecessary to include this additional element; if a person engages in preparatory conduct with the intention that it will lead to one or more such offences, the preparatory conduct offence will be committed only if the person has the intention that each element of those offences will be met in the future. I do not accept that the offence could be unintentionally committed in the manner postulated by the noble Baroness, Lady Jones.

--- Later in debate ---

[Baroness Ludford (LD)]

The Minister has the advantage of having read the Government’s response to the JCHR report. As a mere member of the JCHR, I know that, unfortunately, two months after Report, it did not come in time for this Committee, let alone Second Reading. I look forward to reading it.

I did not follow every detail of what he read, but could the Minister tell me what guards against someone being prosecuted under Clause 5,

“Unauthorised entry etc to a prohibited place”?


The clause raises worries about protestors, journalists, photographers and so on, and does not have a test of breaching national security because the criteria in Clause 4—where there is a test of prejudice to the safety or interests of the UK—are not met. It could look as though you have the lower offence, with the possibility of six months imprisonment, where there is no purpose to assist a foreign power and no prejudice to the interests of the UK, but the catch-all of Clause 5, where anyone who wanders on to Ministry of Defence land can attract a six-month prison sentence, whether or not they have done any espionage or harm to the security of the UK. What is the defence to Clause 5 being some sort of compensation for not being able to charge under Clause 4?

[Lord Murray of Blidworth (Con)]

As I sought to explain to the Committee, the Clause 5 offence can be committed only where a person engages in the specified conduct in relation to a prohibited place that is unauthorised, and they must know, or ought reasonably to know, that their conduct is unauthorised. It is specifically the point, as I hope I alluded to in my remarks earlier, that the Clause 5 offence is the summary-only offence, which is intended to preclude unauthorised entry to prohibited places to avoid the risk of national security consequences.

[Lord Pannick (CB)]

Can I respectfully ask the Minister to write to me before Report, and place a copy in the Library, with a fuller explanation of why I would not be committing a criminal offence by giving advice to a foreign intelligence service? The noble Lord asked what advice; the very simple example I gave was being asked by a foreign intelligence service to advise it whether certain conduct would be unlawful in this country. Would it be a criminal offence for me to advise it on that? Grateful though I am to the Minister for his expression of the hope that I do not end up at the Old Bailey, I would like greater comfort than that. He did perhaps go a little far in suggesting that that would be the view of all noble Lords, but I am grateful for his personal assurance.

[Lord Murray of Blidworth (Con)]

I will endeavour to make sure that that letter goes to the noble Lord as soon as it is prepared.

[Lord Purvis of Tweed (LD)]

I have a genuine query. The Minister referenced a number of times, as I think was cited, that if a foreign intelligence body is operating in the UK unauthorised, it is now considered to be prejudicial to the safety and interests of the United Kingdom. Why is that activity not unlawful?

[Lord Murray of Blidworth (Con)]

The activity itself is made unlawful in the provisions of the Bill. Is that the point that the noble Lord is making?

[Lord Purvis of Tweed (LD)]

So it is unlawful for a foreign intelligence service to carry out any activities within the UK if they have not been prior approved by UK intelligence services. Is that correct?

[Lord Murray of Blidworth (Con)]

As the noble Lord is aware, it is the effect of Clause 2 to prohibit the offences of espionage and assisting a foreign intelligence service. Therefore, those offences in Clauses 1 and 3 of the Bill would have the effect of criminalising activity of the type described by the noble Lord.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister; I am purely seeking clarification for the benefit of my own ignorance. I am concerned that it is not very clear. If a friendly intelligence service is carrying out UK activities, which is not espionage against the United Kingdom, the Government are saying that this is prejudicial against the safety and interests of the United Kingdom but it is not unlawful, but a UK citizen advising on that basis is unlawful. Would it not be clearer to state that that activity is unlawful?

[Lord Murray of Blidworth (Con)]

I note the noble Lord’s remarks. I am not entirely sure that I follow the logic, but I will study Hansard carefully and take it back to the department.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the Minister has given no quarter. I suppose that is to be expected on the first day of a Committee on a Bill, with the Government defending their position as thoroughly as he has done. I hope that when he does read Hansard, as he has just promised to do, he will realise that there are a great many areas in which flaws in the Bill have been exposed—and exposed in particular by this group of amendments—where it is quite plain that conduct that ought not be criminal runs the risk of being criminalised. The question asked by my noble friend Lord Purvis of Tweed just a moment ago exposed the danger for people working for a foreign intelligence service if they are British citizens; they are plainly caught. There are a number of areas where assisting a foreign intelligence service, for instance, gives rise to particular difficulties.

Before I go on to any detail, let me say that it is a dangerous path for a Government to say that they do not believe that there would be many unjustified prosecutions because the public interest test for a prosecution would not be met. Let us remind ourselves that the prosecution services have to consider two things: first, whether there is a reasonable chance of a conviction on the evidence, and, secondly, whether it would be—

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the amendments in this group span Clauses 6 to 11 and cover the new offences of

“Entering and inspecting places used for defence etc”.

These clauses are intended to update the prohibited places provisions which fall within the century-old Official Secrets Act 1911. Given that technological developments, such as the use of drones, are providing new methods of accessing protected sites, it is right that the Government are evolving the offences, and it is right that this Committee is probing how these new offences will be implemented.

The 12 amendments in this group are probing and were recommended by the JCHR. They seek to tighten or narrow the offences and definitions. Amendment 34 in the name of the noble Baroness, Lady Ludford, raises the unintended consequences of these provisions on the right to protest and on journalism. This will be a common theme throughout Committee stage, and my Amendment 88, which will be debated at a later date, will consider the implications of later clauses for journalists and civil society.

Amendment 26 in the name of the noble Baroness, Lady Ludford, and Amendments 27, 28 and 30 in the name of the noble Lord, Lord Wallace, raise questions about where prohibited places may be located and probe why they may include any MoD land and why Crown dependencies and overseas territories are excluded. Given the sentences which offences may carry, it is important that the Minister clarifies the type of locations which will be included. As the noble Baroness, Lady Ludford said, the purpose of this group of amendments is to give greater certainty and narrow definitions. She asked the rhetorical question—perhaps it is not a rhetorical question; it is a literal question—of how people will know whether they are in prohibited places.

The noble Lords, Lord Wallace and Lord Purvis, explored quite interestingly why overseas territories are not included within the definitions, and I look forward to the Minister’s answer on that point. The noble Lord, Lord Purvis, asked other questions about who will be informed. If it will not be the general public, will it be local authorities or police forces, and which police forces will it be? The purpose of this suite of amendments is to look at the limits on the extension of prohibited places and at who should expect to be informed about any such extension. I look forward to the Minister’s answer.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions to this short debate. I will first speak to Amendments 23 and 33 at the same time, given the argument is much the same for both. I am happy to provide the clarity sought by noble Lords and, in particular, the noble Lord, Lord Ponsonby.

Harmful activity relating to prohibited places or cordoned areas around military aircraft can take place directly outside the boundaries of a place or cordon. This could include conducting surveillance, such as taking video or photographs of the sensitive place or aircraft, monitoring the activities of staff located at the site or conducting close-range information technology attacks from outside the place. It is therefore imperative that, where the police believe a person to be conducting such activity, they should be able to order them to move away. None the less, recognising that a cordon may be imposed at short notice, it is a defence provided for in the Bill for a person to prove that they had a reasonable excuse for failing to comply with a cordon under Clause 11. The effect of these amendments would be to reduce significantly the ability of the police proactively to stop damaging activity from taking place.

The police guidance that is being developed in collaboration with the College of Policing will provide further advice to forces on the use of powers in respect of an area adjacent to a prohibited place or cordoned area. I can confirm that this is addressed directly in the Government’s response to the JCHR’s report at paragraph 52 and onwards, and I again thank the committee for its close consideration of this Bill.

Amendment 24 adds a requirement that a police officer obtain authorisation before exercising a Clause 6 power. Due to the inherently sensitive nature of prohibited places, and the threats that they face, it is likely that the Clause 6 powers will be used rapidly to prevent serious and harmful activity from taking place—activity that could well jeopardise the safety of those working within the site itself. Policing often requires the judgment of officers to take quick and decisive action to prevent harm and keep the public safe. It is important that we continue to empower our officers to make these decisions where appropriate. Introducing a requirement for a constable to seek approval from a senior officer may add an extra layer of confusion as to when constables may or may not use their powers, potentially allowing harmful activity to be completed before the police can respond. We recognise that every effort should be made to help ensure that these powers are not used in a disproportionate manner, and, as such, we are working closely with the College of Policing to develop guidance that the police should use before exercising the powers granted under Clause 6.

Amendment 25 seeks to provide that it is an offence to fail to comply with a Clause 6 order only if the order was necessary and proportionate to protect the safety or interests of the United Kingdom. The legislation is clear that a constable may exercise a power under Clause 6 only if they reasonably believe that doing so would be necessary to protect the safety or interests of the UK. The Government therefore consider that this amendment is unnecessary. As with any such situation, where it is alleged that a constable has acted outside the scope of their powers, a decision to give the order is rightly open to challenge. As it is an important point, I will stress again that the Government are working closely with the College of Policing on the guidance which should be used prior to making any decision to exercise powers under Clause 6.

On Amendment 26, it is crucial for national security that the UK continues to protect all areas used for defence purposes and by the UK intelligence community. Carving out certain places over others within these categories in the way this amendment proposes risks creating gaps that hostile actors could exploit. It could require the Government to pinpoint their most valuable defence and intelligence sites in order to establish that they are indeed prohibited places and so put these places even more at risk of harmful activity—the very opposite of what the prohibited places regime is setting out to achieve. Moreover, the proposed amendment focuses only on the risk posed by entry to such sites, which fundamentally undermines the protection being given to these sites against a range of harmful activity. It also, in inserting this condition around potential risk, significantly reduces clarity on the face of the legislation as to what constitutes a prohibited place.

I understand the intention behind this amendment, which is to ensure that land that might already be accessible, or where there is not perceived to be a significant risk, is not covered by the provision. I want to assure noble Lords that Ministry of Defence land that can be lawfully accessed by the public and such areas of the British countryside with public footpaths do not need to be excluded, nor do the public need to be given authorisation to be in that area. Therefore, they will not commit an offence under Clause 5. They will be committing an offence under Clause 4 only if the conduct is a specified activity with a purpose that they know, or reasonably ought to know, is prejudicial to the safety or interests of the United Kingdom. It is important we are able to catch such harmful activity, even on publicly accessible land. Ministry of Defence land that can lawfully be accessed by the public is still used by our Armed Forces, often for purposes that are sensitive in nature, and it is critical they should be afforded the protections granted by the prohibited places provisions.

I will address Amendments 27, 28 and 30 together, given they all seek to extend the prohibited places provisions to the Crown dependencies and the wider British Overseas Territories. The Crown dependencies and British Overseas Territories are not a part of the United Kingdom, of course, but self-governing territories with democratic Assemblies able to legislate for themselves, including on national security. Should any British Overseas Territory or Crown dependency consider it necessary to designate prohibited places within their territory, they may make similar provisions in their own legislation.

It is of note that the Government consulted with the Crown dependencies on their inclusion within the prohibited places regime, and they have advised it would be preferred if they looked towards mirroring these provisions under their own law and legislation. It is only right and proper that the United Kingdom respects these decisions. I hope that addresses the point raised by the noble Lord, Lord Wallace. I am sure the Bailiwick of Guernsey will think long and hard about the Alderney breakwater. As the grandson of an Alderney girl, I can tell noble Lords how much that breakwater is a feature of conversation.

It is important to address why the Government have chosen to include land or buildings within sovereign base areas—particularly those of Akrotiri and Dhekelia—in the prohibited places regime. Sovereign base areas are critical for UK defence and have special constitutional status among the British Overseas Territories in that their administrator, who also holds the title of “Commander British Forces Cyprus”, is vested with all the executive and legislative authority. This unique context of the sovereign base areas is precisely why, at their request, we are also including the option to extend the provisions in the Bill to the sovereign base areas. As such, it is right that the UK continues to afford protections specifically to the sovereign base areas through the National Security Bill.

Amendment 29 creates a legislative requirement to inform the public of prohibited places. The safeguards in place within Clauses 4 and 5—namely, that a person must either have a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom or know, or ought reasonably to know, that their conduct is unauthorised—protect those who have entered, or are in the vicinity of, a sensitive site without having any knowledge that they have done so.

The Government agree that, where it is reasonably practicable, every effort should be made appropriately to notify the public of areas designated as prohibited places through the use of signage surrounding these places. However, the Government consider that making it a legislative obligation to notify the public of the location of every site designated a prohibited place is not proportionate, given that Clause 7 already makes public the types of sites that will be prohibited places. Equally, any designation under Clause 8 will set out in law any further types of sites that will be prohibited places. Furthermore, and crucially, there will be a number of sites which, due to their highly sensitive nature, it would be harmful to UK national security if they were publicly declared as prohibited places.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I have two quick questions for the Minister. I was grateful for his response to me with regard to local authorities. Can he clarify which lands will be categorised under the Crown interest? Under Clause 7(4)(b), they are

“an interest belonging to a government department or held in trust for His Majesty for the purposes of a government department”.

It is not singled out, so is my assumption correct that these government departments include devolved Administration departments—the Scottish Government, et cetera?

Similarly, I was grateful for the Minister’s reference to the College of Policing, which was also referenced in Committee by his counterpart in the House of Commons. I have heard no reference to the Government working with the Scottish Police College, which is the relevant body north of the border because the College of Policing is only for England and Wales. This is important, because many of these lands are north of the border, where I live. If the Government are consulting, they need to consult with the Scottish Police College as well. I would be grateful for that assurance.

[Lord Murray of Blidworth (Con)]

Yes. My suspicion is that both answers are in the affirmative, but I am afraid I do not know for sure. I will find out from my officials and write to the noble Lord. I thank him for raising that.

[Baroness Ludford (LD)]

My Lords, I am quite disappointed by the Minister’s responses on this. There are considerable dangers in this part of the Bill. The Minister referred to the fact that the offence under Clause 4 is committed only if

“the person knows, or ought reasonably to know,”

that their conduct

“is prejudicial to the safety or interests of the United Kingdom.”

We have been around those houses before. Ought ramblers reasonably to know that they are

“in the vicinity of a prohibited place”?

Again, what does that mean? It is like “adjacent”. I do not think the Minister replied on the meaning of “adjacent”; forgive me if I missed that. It is all very difficult for some normal, uncriminal person to know that they are committing an offence under Clause 4. Clause 5 also says they “ought reasonably to know”. It is all rather reminiscent of being “in the vicinity” or “adjacent”. The Government also have powers to designate more places as prohibited.

The Minister drew our attention to the defence

“to prove that the person had a reasonable excuse for that failure”

under Clause 11 in relation to a cordoned area. As far as I can see—I might have missed it—there is no such reasonable excuse defence in relation to the offences under Clauses 4 and 5 on entering or unauthorised entry to a prohibited place. If I am wrong, no doubt the Minister will be able to write to correct me.

This all seems quite reminiscent of the Covid restrictions. In the last couple of days, the human rights barrister Adam Wagner did a review of Matt Hancock’s diaries, or so-called diaries. Presumably, as he is an ex-Cabinet Minister, this publication would have been vetted by the Cabinet Office. This is the Minister who would have signed off all the SIs on Covid restrictions—200, or however many there were. The publication by Mr Hancock says that these were all SIs under the Coronavirus Act, which is not true; they were under the public health Act 1984, if memory serves. It went through the Cabinet Office with no one picking up that the reference was to the wrong law. This is reminiscent of the chaos among the police in applying the restrictions, their failure to distinguish between guidance and law, and the general outrage among the public at being told they could not do things that actually were not illegal. This did not help the reputation of and trust in the police.

I foresee similar echoes from the provisions of this Bill, of an outraged Middle England—or middle UK—where people find themselves adjacent to or in the vicinity of a prohibited place on Ministry of Defence land having had no reason to know about it. The Minister said he would try to consider putting up notices, but I do not think there has been any guarantee. So someone might not know that they were in the vicinity of a prohibited place that is defence land, committing an offence with potentially draconian penalties. This is inadequate as law. The Minister did say that there would be guidance, but there was guidance for the Covid regulations and that did not always solve the problems.

So, while I hear what the Minister says, I will want to return to some of the issues in this part of the Bill. The proposed law is sloppy. It could find innocent people either criminalised or dissuaded from taking their normal walk because they are not sure whether they are allowed in an area, and there could be a general chilling effect on people’s leisure activities. That said, and with the intention of having another look at all of this on Report, I beg leave to withdraw my amendment.

Albanian Asylum Seekers

Lord Murray of Blidworth Excerpts

Tuesday 13th December 2022 Lords Chamber

[Lord Dubs]

To ask His Majesty’s Government how many Albanian asylum seekers are currently waiting for a decision about their claim; how many applications have been accepted in the last 12 months and how many have been refused.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

As of 30 September 2022, there were 19,897 Albanian asylum cases pending an initial decision. In the year ending September 2022, 334 decisions on asylum claims from Albanian nationals were grants and 318 were refusals.

[Lord Dubs (Lab)]

I am grateful to the Minister for those figures. He will be aware that I tabled my Question long before I knew that the Prime Minister would make a Statement on this issue this morning. His Statement suggested to me that the Conservatives must have been in opposition for the past 12 years, but I will let that one go. I have two questions. Will the Minister confirm that, even if we are going to move to a fast-track approach for Albanians, which the Labour Party has already supported, that does not mean that an individual claimant will not have his or her claim properly considered? Secondly, will the Minister confirm that referring to asylum seekers as “illegal immigrants” is totally the wrong term? An asylum seeker cannot be illegal, even if he or she flees for safety to another country.

[Lord Murray of Blidworth (Con)]

I thank the noble Lord for his question. As ever, he is very à la mode and clearly foresaw that there would be a Statement by the Prime Minster. I will answer his two questions. First, on the fast-track removal of Albanians, as the Prime Minister made clear in the other place, the new deal with Albania will allow us to return people with confidence that necessary protections will be provided for genuine modern slavery claims, in line with our international obligations. Of course, Albania is already a scheduled safe country under the 2002 Act, passed under Mr Blair’s Administration. On the noble Lord’s second question, on the term “illegal immigrant”, that nomenclature derives from the provisions in Nationality and Borders Act, which make it an offence to enter illegally.

[Baroness Hamwee (LD)]

My Lords, it is reported that there has been a big rise in online advertisements offering transfers from Albania to the UK by boat or lorry for a price—in other words, smuggling. If this is openly advertised, is it not possible to track down the smugglers and prosecute them?

[Lord Murray of Blidworth (Con)]

The noble Baroness is exactly right: the gangs involved in people smuggling do advertise in Albania, usually on social media platforms—I understand that TikTok is particularly favoured. The Home Office has an intelligence unit that considers all these sources and, working with the National Crime Agency, steps are taken to prevent this sort of criminal activity. As the noble Baroness will have seen, the Prime Minister’s announcement increases the NCA’s funding to tackle organised crime within Europe, which will achieve greater control of this type of criminality.

[Lord Anderson of Swansea (Lab)]

My Lords, when will the new policy announced by the Prime Minister this morning be fully implemented? Is it proposed that there be any element of retrospectivity—looking back to those who are already here—in the scheme?

[Lord Murray of Blidworth (Con)]

Certainly, the deal with Albania will take effect as soon as it is agreed, which should be in the near future. The asylum backlogs will be dealt with by the end of next year. A new permanent small boats operational command will be set up, with more or less immediate effect, and enforcement activity will be boosted in the near future. As noble Lords will have heard the Prime Minister say, we plan to bring forward legislation in early January next year.

[Lord Alton of Liverpool (CB)]

My Lords, will the Minister assure the House that people who have been involved in people smuggling or cocaine trafficking will be brought to justice, but also that a distinction will be made where women and children, for instance, are involved and are clearly victims of the criminal gangs that have been identified? Will he also update the House as to the total number of outstanding claims by refugees and asylum seekers? When I last looked it was 143,000, which was a 180% increase since 2019. What are the Government doing to ensure that those claims are processed more expeditiously?

[Lord Murray of Blidworth (Con)]

As of the end of September, there were 117,400 cases, which related to 143,377 people awaiting an initial decision. On enforcement and the penalisation of those engaging in people smuggling, as the noble Lord will know, it is a criminal offence to be the criminal mastermind—if you like—behind a smuggling operation, and the maximum penalty for those types of offences is life. I have no doubt that a sentencing court would bear in mind, as the noble Lord anticipates, that it is an aggravating factor if women and children are involved.

[Lord Leong (Lab)]

My Lords, asylum seekers coming here from Hong Kong have a very different experience from British national (overseas) visa arrivals. They are not given the same freedom as BNO holders to study, work or live, and that is very impactful on their mental health. Nearly one in four Hong Kongers who fled the crackdown of the ruling Chinese Communist Party says that they still suffer from post-traumatic stress disorder, linked to the violent crackdown on the 2019 protests and the subsequent fear engendered by the national security law. What assessment have the Government made to identify those suffering from PTSD?

[Lord Murray of Blidworth (Con)]

On the BNO Hong Kong cohort, I do not have the answer, and I will write to the noble Lord in relation to it.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I am very pleased that the Government have reached an agreement with Albania about the large number of Albanians arriving in this country. However, I dispute slightly what my noble friend said about the legality or illegality of asylum seekers. Under the 1951 convention, it is perfectly clear that merely seeking asylum cannot in itself be an act of illegality. It is, however, obvious to all of us, I think, that the illegality about which we are so concerned lies with the people traffickers, smugglers and those forcing often very poor people to come to this country. I urge my noble friend that we must take further action to alleviate that problem.

[Lord Murray of Blidworth (Con)]

I entirely agree with my noble friend: the 1951 convention prohibits the penalisation of asylum seekers. It is the illegal entry—entry without leave—that renders it unlawful under the Act.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as my noble friend Lord Dubs said, the Labour Party supports the fast-track approach, but I would like to ask about an appeals process. The Minister quoted the Prime Minister saying that there will be protection for modern slavery claims. What about people who are fleeing domestic violence? Will youths be treated the same way as adults through this appeals process?

[Lord Murray of Blidworth (Con)]

The Home Office is increasing the number of staff making asylum decisions in relation to these areas. We have increased the number of asylum case workers by 112%, from 597 staff in 2019 to 1,276 as of this month, and we propose to increase that again next year with a further 500 in March 2023, up to 1,800 by the summer. In terms of the appeal mechanism, as the noble Lord will be aware, Albania is a certified safe country and the mechanism for inadmissibility will apply. Plainly, there is an appeal right out of country and judicial review opportunities in relation to certification decisions.

[Lord Dobbs (Con)]

My Lords, I will step back from the subject of Albania. Is it not a fact that the large, underlining trend of asylum seekers or illegal refugees—whatever term one wants to use—still comes from Iraq and Afghanistan, countries in which we went to war, with the promise that we would make them safe parliamentary democracies? Will the Minister remind his colleagues constantly that military adventures of the sort that Mr Blair and others pursued, rather than solving the problems, have only made them very much worse?

[Lord Murray of Blidworth (Con)]

Obviously, I agree with my noble friend that the consequences of conflict have led to greater migration. As the Prime Minister observed, that problem is not going to go away; we have to address it head-on.

Public Order Bill

Lord Murray of Blidworth Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

Given that it is in the Government’s official guidance, has the double-glazing noise provision ever been used by a police officer to determine whether a protest will be too noisy or not? This is a question to which the whole nation is waiting for an answer. I certainly am. I am also, along with organisers of many protests, waiting to find out whether the Government have yet done any analysis of which streets have lots of double glazing, as protesters need to avoid them for fear of falling foul of the noise threshold.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

I thank noble Lords. The public order measures in the Police, Crime, Sentencing and Courts Act 2022 have only just come into force, so, in the Government’s view, it is far too early to consider whether they should be repealed. These measures were debated at length during the passage of the Act, and the police have barely had the opportunity to make use of these new powers to manage public processions, assemblies, single-person protests and protests in the area outside Parliament. I therefore ask the noble Baroness to respect the democratic process and allow these measures to continue to be part of the statute book. It is no doubt clear that, as we have seen, the public continue to be able to protest as before since the commencement of the Police, Crime, Sentencing and Courts Act 2022.

I will not dwell long on the amendment lowering the maximum penalties for wilful obstruction of the highway. This House was clear in its position that the increase in sentences was appropriate, and I doubt that that position has changed in the last six months.

Amendment 123 would repeal the statutory offence of public nuisance and reinstate the common-law offence. In doing so, it would allow courts to place custodial sentences beyond the current 10-year maximum in the statutory offence. This would also have the effect of removing the reasonable excuse defence. I worry that this amendment undermines the benefits of the statutory offence, as recommended by the Law Commission.

I turn to the question asked by the noble Lord, Lord Coaker, on double glazing—I want to say, “for complete transparency”, but perhaps I should not. Parliamentarians asked for practical examples of when the power would and would not be used. This example is in the guidance to illustrate that the threshold is subjective, depending on its impact on people or organisations, which is why there is no decibel threshold.

When debating the measure covered by Amendment 123 during the passage of the PCSC Act, Parliament spoke at length about the meaning of “annoyance”. The Law Commission’s written evidence to the Public Bill Committee on this said:

“Annoyance in the context of nuisance is a legal term of art that does not connote merely feeling annoyed. It requires ‘a real interference with the comfort … of living according to the standards of the average man’”.


In common law, “annoyance” and “inconvenience” were already within the consequence element of the common-law offence.

Amendment 127, tabled by the noble Lord, Lord Coaker, probes the use of the powers to prevent noise from public processions, and presumably assemblies and single-person protests, from causing harm. I am sure that the noble Lord is aware that the Government are legally required to table a report on the operation of these new powers to manage public processions, assemblies and single-person protests by 28 June 2024. In the meantime, I can inform him that I am not aware of the new powers relating to noise being used—but I remind the House that the use of conditions on protests and other gatherings is relatively infrequent. The noble Lord, Lord Coaker, asked about instances of the noise provision being used. As I say, there is no record of the police using this power.

For the reasons I set out, I invite the noble Baroness to withdraw her amendment.

[Baroness Jones of Moulsecoomb (GP)]

Did the advice’s definition of “discomfort” really use the word “man”, so it does not apply to women? Is that real?

[Lord Murray of Blidworth (Con)]

I was quoting from the Law Commission’s written evidence, which referred to the

“standards of the average man”.

In that context, as in many legal documents, the word “man” implies “mankind”.

[Baroness Jones of Moulsecoomb (GP)]

I suggest that legal sources need to brush up on equality these days—that is ridiculous.

With my amendments, I was trying to give the Government the opportunity to see that the legislation they have brought in is extremely unpleasant and repressive. I wish I had done a little more homework, like the noble Lord, Lord Coaker, and highlighted some of the ridiculous things in the Act. He highlighted a real deficit in the Government’s reading of legislation and their concentration on these things, which let such things through. There was a lot of laughter in the Chamber when the noble Lord, Lord Coaker, presented that part of the Bill, as it was. I argue that the drafting of some of these Bills is absolutely appalling, and that highlights it. I will of course withdraw my amendment, but this Government are awful.

UK Asylum and Refugee Policy

Lord Murray of Blidworth Excerpts

Friday 9th December 2022 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

I thank the most reverend Primate for leading the debate and initiating a constructive dialogue on the important topic. I also thank noble Lords from all sides of the House for their insightful contributions.

I especially welcome our three new Members and thank them for their opening contributions. The right reverend Prelate the Bishop of Leicester is currently spearheading the Shaped By God Together process within the Leicester diocese, helping each parish to live out better their everyday faith in their communities. The noble Baroness, Lady Twycross, has been a notable force for change in the health sector, through her work with Diabetes UK and Action Against Food Poverty, including calling for London to become a zero-hunger city. I also agree with her point on the great work of the London Fire Brigade and refer her to the debate we had yesterday concerning the culture of the fire service, to which many noble Lords who have spoken today contributed. Over the past two decades, the noble Lord, Lord Sahota, has been tireless in serving the Telford community, while also finding time to run a business with his family. He is the only Sikh on the Benches in this House. I know that our debates here will be richer with the noble Lord, Lord Sahota, the noble Baroness, Lady Twycross, and the right reverend Prelate the Bishop of Leicester.

[Noble Lords]

Lord Singh of Wimbledon!

[Lord Murray of Blidworth (Con)]

My apologies; he is the only Sikh on the Labour Benches.

I also share the sentiment of both the noble Lord, Lord Sahota, and the right reverend Prelate the Bishop of Leicester in hoping that their elevation will be an omen for the success of the English football team on Saturday.

I will make one further point, as a fairly recent entrant to the House myself. The three new Members will have noticed that there is a tendency in the House for noble Lords to make speeches in Question Time when they should be asking questions, and for them to ask questions in debates when they should be making speeches. So I ask for the House’s indulgence, as I will not be able to answer all the questions that noble Lords have asked me today, but I will endeavour to answer as many as possible. I am sure that those I do not answer will be converted into Written Questions in due course.

I also thank my noble friend Lady Nicholson for her heart-rending history of the Yazidi position, and welcome her special guest to the House today.

It is no secret that the UK’s asylum system has, of late, come under severe strain. This year, we have seen around 40,000 people arriving by small boats. Around 100,500 individuals are currently on asylum support. The cost of accommodating asylum seekers in hotels has reached more than £5 million a day. Clearly, something has got to change.

The Government have been clear on their priorities; namely, first, tackling small boat irregular arrivals by encouraging claims to be made in the first safe country and deterring unnecessary, dangerous journeys to the UK; secondly, alleviating pressures on accommodation, including by tackling lengthy stays in processing centres, while of course taking the safety and welfare of those in our care extremely seriously; thirdly, delivering our migration and economic development partnership with Rwanda; and, finally, providing safe and legal routes for people in need of protection and combating the asylum application backlogs. In doing that, we will seek to streamline the asylum decision-making process.

On safe and legal routes, while we are clearly grappling with significant challenges, the UK has maintained our long and proud record of welcoming refugees and people in need of protection through various resettlement schemes. Under the 1951 convention, people should claim asylum in the first safe country which they reach—that is the fastest route to safety. While we know that many people are in difficult situations around the world, the UK cannot possibly accommodate everyone who might wish to come here, as the most reverend Primate identified.

We have adopted a proactive stance in responding to world events. In the wake of Russia’s appalling aggression, we introduced the Ukraine Family Scheme and the Homes for Ukraine scheme. Since January 2022, those schemes have received a total of 220,225 applications, of which 85.8%—that is, 189,131—were granted. I thank the noble Earl for commending the efforts of the department in relation to those schemes.

We continue to welcome people through the existing global UK resettlement scheme, community sponsorship, mandate resettlement scheme and the Afghan resettlement schemes. The Government’s refugee resettlement schemes are focused on those with the greatest need as determined by the UN Refugee Agency. The UNHCR has well-established procedures and submission categories for identifying and resettling the most vulnerable refugees. The UK’s refugee resettlement schemes aim to do exactly what my noble friend Lord Horam has pointed out: to bring those to the UK who are considered refugees as per the UNHCR’s criteria.

Since its expansion in September 2015, a total of 20,103 people have been resettled in the UK through the vulnerable persons resettlement scheme, or VPRS, across more than 300 local authorities. Alongside the VPRS, we ran the gateway protection programme, which has resettled more than 9,939 people. The VPRS closed in February 2021 and is succeeded by the global United Kingdom resettlement scheme, which has since its creation settled some 1,882 people. We have also resettled more than 800 through the community sponsorship scheme since it began in 2016.

The noble Baroness, Lady Hamwee, asked what the actual number of Afghans assisted is. The Afghan citizens resettlement scheme, or ACRS, was formally opened in January of this year, with pathways 2 and 3 launched in June. This will provide support for up to 20,000 people affected by events in Afghanistan. This is in addition to those coming under the Afghanistan relocation and assistance package. Operation Pitting was the largest UK military evacuation since the Second World War and saw around 15,000 individuals evacuated to the UK, some of whom were the first to be settled under the ACRS.

In the year following the evacuation, around 6,000 people had arrived in the UK via neighbouring countries under a combination of ARAP and the ACRS pathway 1. The number of vulnerable and at-risk individuals granted leave under pathway 1 now stands at over 6,300. Therefore, to say we have not welcomed anyone through the Afghan citizens resettlement scheme and the Afghan relocation and assistance policy is simply not true.

In addition to these routes, the Government provide a safe and legal route to bring families together through their family reunion policy. This allows a partner or spouse and dependent children to join their refugee family members in the UK if they formed part of the family unit before the sponsor fled their country.

On asylum decision-making, which has been a topic of many speeches in your Lordships’ House, we agree with the point that many have made today that it is unacceptable that there are so many outstanding claims awaiting a decision. The asylum system has been under mounting pressure for several years. Increased and sustained intake and a growing number of people awaiting a decision have led to significant delays in concluding asylum claims. Current efforts are focused on deciding older claims, high-harm cases, and cases with extreme vulnerability such as mental health, child cases, new claims and those in receipt of support since the Nationality and Borders Act came into force on 28 June of this year.

I thank my noble friend Lord Horam for his insightful comments about the impact of excessive immigration on communities. Prioritisation is the answer. We cannot favour those who can afford to pay the people smugglers over other asylum seekers. I also thank the most reverend Primate for his suggestion of triaging asylum claims and removing those who are not going to be granted asylum immediately in order to speed up decision-making, an idea also canvassed by the noble Lord, Lord Carlile of Berriew. In practice, however, while we endeavour to remove individuals as quickly as possible, delays to removal occur due to legal barriers such as fresh claims, further representations, modern slavery claims and judicial reviews, all of which must be considered before removal.

[Lord Kerr of Kinlochard (CB)]

Before the Minister leaves consideration of how to improve the working of the system, can he tell us what has happened to the recommendations from the reviewer in the independent review of 13 months ago?

[Lord Murray of Blidworth (Con)]

Those considerations are being studied in the department and will feed into future policy on this issue.

Where an individual’s claim is unsuccessful, they would need to be removed to their country of citizenship or another destination where they would be accepted.

It was apparent that there was a tension between the suggestion of the most reverend Primate the Archbishop of York and the most reverend Primate the Archbishop of Canterbury on whether we should extend our Ukrainian policies to all nationalities. As the most reverend Primate the Archbishop of Canterbury rightly noted, it is of course not immoral to have a limit or restrictions on immigration. While we sympathise with the many individuals who are in difficult situations around the world, the United Kingdom simply cannot help everyone who may like to come to this country.

We have introduced the asylum transformation programme, which aims to bring the system back into balance and to modernise it. It focuses on increasing productivity by streamlining, simplifying and digitising processes to speed up asylum decision-making and increase efficiency and output. Since the programme was established in the summer of 2021, a number of positive steps have been taken. More decision-makers have been recruited, alongside steps to keep experienced staff in post.

We have also tested a range of initiatives aimed at reducing the time it takes to interview and decide asylum claims. Changes in recent trials have doubled the number of decisions made per week; we are looking to roll these initiatives out nationwide as a result. This is undoubtedly a significant task, but I assure the House that efforts to address the backlog and alleviate the current pressures will continue in earnest. I hope this assures my noble friend Lord McInnes that the changes we are making will fix the issues with the asylum decision-making process.

Many of those arriving in the UK claim to be children and do not have clear evidence, such as a passport, to back this up. Decision-making is very challenging, and the current process is very subjective and can be disputed in long and expensive legal proceedings. The United Kingdom typically receives more than 3,000 asylum claims from alleged unaccompanied asylum-seeking children per year. Many of those arriving in the UK who claim to be children do not have evidence. Between 2016 and September 2022 there were 7,357 asylum cases in which age was disputed. In the subsequent resolution, some half—3,696 individuals—were in fact found to be adults. If there is doubt whether a claimant is an adult or a child, they are referred to a local authority social services department for a careful, case law-compliant age assessment. They will be treated as a child until a decision on their age is made. I do not need to remind noble Lords that one of the consequences of an adult being treated as a child is that this has the potential to expose those in local authority care to risk.

Beyond our domestic reforms, we are working closely with our international partners to deter small boat arrivals and put an end to the practices of people smuggling and clandestine travel into the United Kingdom. I entirely agree with the comments from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who pointed out the nonsensical position that Albanians can prioritise themselves by crossing the channel in a small boat and, on that basis, effectively jump the queue. It is incumbent on us to prevent that sort of self-selection and queue jumping. The noble Baroness, Lady Prashar, and others overlook the basic fact that not all those who claim to be refugees are actually refugees. It is not immoral to point this out. As my noble friend Lord Robathan stated, we must be sensible and not naive about this.

While legal challenges are ongoing, we remain committed to delivering the migration and economic development partnership between the United Kingdom and Rwanda to address the shared international challenge of illegal migration and break the business model of the people-smuggling gangs. This policy does not subcontract or outsource our responsibilities to Rwanda. Instead, the United Kingdom and Rwanda working together will help make the immigration system fairer and ensure that people are safe to enjoy the new opportunities to develop. It is by reforming the asylum system and taking bold international action to address the global migration crisis that we can keep providing protection for those who need it through safe and legal routes.

I would like to respond to the assertions of the noble Lord, Lord Browne of Ladyton, on our assessment that found Rwanda to be

“a fundamentally safe and secure country with a track record of supporting asylum seekers.”—[Official Report, 14/6/22; col. 1518.]

This is set out in the relevant country policy and information notes available on GOV.UK. These assessments are kept under review and updated periodically to reflect any significant new issues or evidence. We regularly monitor and review the situation in Rwanda and are working closely with the Foreign, Commonwealth and Development Office.

Last month the United Kingdom and France signed a new agreement further to bolster our combined efforts to prevent dangerous channel crossings, including through strengthened operational co-operation and investment in cutting-edge surveillance technology. The UK remains committed to addressing illegal migration with France via our enduring relationship. We continue to engage with our French friends at all levels, political and operational, supporting the meeting of our shared strategic aims with the provision of technology and sharing of intelligence. France and other EU countries are safe countries and, like the UK, have asylum systems that provide protection to those who need it.

[Baroness Ludford (LD)]

I apologise for interrupting the Minister, but I did not do so earlier. He talks about safe countries, and earlier he said there is an obligation to claim asylum in the first safe country, but he will of course be aware that the UNHCR said that it is absolutely not the law. Indeed, if it were, the refugee convention would never have been signed because countries that neighbour conflict areas, which already take the bulk of refugees, would never have signed it.

[Lord Murray of Blidworth (Con)]

I hear what the noble Baroness says. I commend to her the excellent Policy Exchange paper From the Channel to Rwanda: Three Essays on the Morality of Asylum. On page 14 of that excellent paper, Professor Finnis reminds us that

“the Rwanda scheme does not sub-contract anything. The UK as a founding party to the Refugee Convention, did not undertake to receive or process or admit refugees. Its contractual undertaking and obligation is (a) to give certain rights and privileges to those refugees whom it has chosen to admit and given leave to stay, and (b) not to deport anyone to an unsafe country.”

[Lord Kerr of Kinlochard (CB)]

The difficulty with that argument is that the refugee convention imposes on us the duty to hear the claim. If we deport someone to Rwanda on the basis that even if their claim were justified, that will not be established and they will not be allowed to return. They will be investigated in Rwanda to see whether they may have asylum in Rwanda, but they will be unable to pursue their claim to asylum in this country. That is clearly contrary to the refugee convention.

[Lord Murray of Blidworth (Con)]

Hesitate as I do to disagree with the noble Lord, that matter is currently before the High Court, and the Government’s position is clearly at odds with his assessment.

I crave the indulgence of the House to carry on for a few more moments, if I may.

[Lord Cormack (Con)]

I am going to miss my train.

[Lord Murray of Blidworth (Con)]

I would be terribly sorry if my noble friend Lord Cormack were to miss his train.

I turn to the questions in relation to climate change. We will not remove anyone to any other country where they would face persecution or serious harm as a result of their country ceasing to exist, as was premised in one noble Lord’s speech.

It is always right in this context to remember that, as pointed out by my noble friend Lord Lilley, arrivals by small boats put significant pressure on local authorities. The Home Office acknowledges the strain that dispersing asylum seekers is putting on many authorities, and it is for this reason that it is working collaboratively with local authorities and commercial partners to agree regional and national plans on implementation for full asylum dispersal. This process will enable us to continue to meet our obligations to accommodate destitute asylum seekers while not overcrowding local areas.

[Lord Hannay of Chiswick (CB)]

My Lords—

[Lord Murray of Blidworth (Con)]

Forgive me, I am afraid I really must make progress. I am sorry to decline the noble Lord’s intervention.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I fear we really must make progress at this stage. We still have to hear from the most reverend Primate Archbishop of Canterbury.

[Lord Murray of Blidworth (Con)]

I am afraid that time does not permit me to address all the issues raised by noble Lords. However, I fully understand that this is and will remain an emotive issue for many. Although our compassion may be limitless, our capacity, resources and infrastructure to help people are finite.

[Lord Hannay of Chiswick (CB)]

I wish to make a point.

[Lord Murray of Blidworth (Con)]

I am afraid not.

This country has shown time and again—from those who arrived on the Kindertransport, which the noble Lord, Lord Dubs, raised, and the Ugandan Asians expelled by Idi Amin, to those fleeing the present dreadful conflict in Ukraine—that when people are suffering and they need sanctuary, we step up. We extend the hand of friendship and provide a welcome born of our natural compassion. As the Government have demonstrated, we are committed to maintaining that long and proud tradition through safe and legal routes, and we will continue to do what is right and help those who are in most need.

As my noble friend Lord Cormack referenced in this debate, I completely agree that refugees enrich both our history and our present. At the same time, the public expect us to control migration, uphold our immigration laws and discourage those who would risk their lives by making unsafe and unnecessary journeys to the UK across the channel. As I hope I have made clear today, the Government approach these responsibilities with the greatest seriousness, and that will continue to be the case.

[Lord Ponsonby of Shulbrede (Lab)]

Before the Minister sits down, will he undertake to write to the noble Lords who have spoken in this debate in order to answer the questions that he has been unable to answer because of the length of time he had available?

[Lord Murray of Blidworth (Con)]

I invite noble Lords to ask Written Questions in relation to those points instead.

[Noble Lords]

Oh!

--- Later in debate ---

[Baroness Royall of Blaisdon (Lab)]

My Lords, I am a former Leader of the House. I have never, ever heard such a reply from a Minister. If a Minister is unable to respond verbally, he or she must reply in writing.

[Lord Murray of Blidworth (Con)]

Very well. I shall write, as requested.

Independent Cultural Review of the London Fire Brigade

Lord Murray of Blidworth Excerpts

Thursday 8th December 2022 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, for securing this timely debate. London Fire Brigade’s culture review, conducted by Nazir Afzal, makes for incredibly uncomfortable reading, as many noble Lords have noted. In places, it is positively shocking.

At the outset, I express my gratitude to those who shared their testimonies. They have shown immense courage, and without their input we would not be here today discussing these vital issues. I note, as many noble Lords already have, that it was the London Fire Commissioner himself who decided to commission this report into the culture in his own service. Of course, the trigger for the review was the tragic suicide of Jaden Matthew Francois-Esprit, a trainee firefighter, as noted by the noble Baroness, Lady Chakrabarti. I am glad to see that the London Fire Commissioner has already accepted all 23 recommendations made by Mr Afzal. I join other noble Lords in commending the London Fire Commissioner’s approach and its immediacy.

As noble Lords are aware, the review contains some terrible examples of racist and misogynist behaviour. It is utterly appalling for these reprehensible incidents to be happening anywhere, not least within an organisation that we look to for support in times of need. I am sad to say that these were not wholly unexpected findings. The culture review adds to an already compelling case for reform. The review, along with the Grenfell Tower and Manchester Arena inquiries and findings from His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, shows that there are systemic issues at play—issues that can be addressed only through wide-ranging reform. We have already seen progress through the work of His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, the Fire Standards Board and the National Fire Chiefs Council.

The noble Lord, Lord Ponsonby, asked what the Government are doing in response, and I will outline this now. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services—or HMICFRS—shines a light on performance, helping identify what works and where improvement is needed. This includes considering how services promote their values and culture and ensure fairness and diversity. We expect its inspection findings to be taken seriously and action to be taken to improve performance. If sufficient progress is not being made in a service, HMICFRS’s new monitoring regime will provide a sharp focus on improvement. HMICFRS inspections and annual reports have highlighted issues with culture, and unfortunately it is clear that these are not confined to London Fire Brigade. HMICFRS’s recommendation that a code of ethics be developed for fire and rescue services was met with support from the Government and has been rapidly enacted.

I also highlight the independently chaired Fire Standards Board, created to boost professional standards in services. The Government have funded this work, enabling the publication of 12 standards, including standards on safeguarding and ethics. The Fire Standards Board will also shortly publish standards on leadership. Fire and rescue services must have regard to fire standards and should take action to embed these expectations.

We have also funded significant work through the National Fire Chiefs Council to drive improvements in ethics, talent management and inclusion. The noble Lord, Lord Davies, spoke about morale and recruitment. The work that the Government fund in the NFCC provides significant tools to fire and rescue services in supporting well-being, morale and recruitment. We are fully aware of the need to support the majority of firefighters.

We need to build on this good work. What we want, and what the public expect, are effective, modern services with a welcoming, respectful culture that enables all who work in them to thrive. That is why the Government, and my noble friend Lord Greenhalgh, published the fire reform White Paper in May. We remain firmly focused on delivering the change that is needed and have brought forward far-reaching plans for fire reform, which I will speak to shortly.

I turn to some of the specific points raised. The noble Baroness, Lady Chakrabarti, raised the role of the Fire Brigades Union. As the largest union representing firefighters, the FBU has a role to play in creating fundamental change, alongside the other fire unions. The Government have ongoing engagement with all representative bodies.

I also take note of the comments from the noble Baroness, Lady Thornton, and the noble Lord, Lord Ponsonby, but the existing work of HMICFRS, at a national level, means that a further national review would be duplicative. As I mentioned earlier, HMICFRS helps to identify what works and where improvement is needed. These reports are vital tools and we have no doubt that the leaders of services identified as requiring improvement or inadequate will take these findings very seriously and take urgent action to improve performance.

The noble Baroness, Lady Pinnock, spoke about governance in the London Fire Brigade. I highlight the fire, resilience and emergency planning committee, which has been set up to scrutinise how the London Fire Commissioner is exercising his functions. There is considerable value in a single point of accountability.

Finally, I turn to the future. We are committed to meaningful reform and change across the services. Inquiry findings and independent inspection show that further improvements are needed. Alongside action from services, the Government have an important part to play. The fire reform White Paper, published in May, set out reform proposals on three themes—people, professionalism and governance. Of particular relevance are proposals for measures such as placing a code of ethics on a statutory basis, introducing a mandatory oath, further developing direct entry schemes, and introducing mandatory training for leaders within the services.

I will not prejudge the consultation findings as we are carefully considering all the responses. However, our White Paper clearly demonstrates our ambitions to address cultural issues in fire and rescue services. It will also address the important points on governance raised by my noble friend Lord Greenhalgh and the noble Baroness, Lady Pinnock. We will publish the Government’s response to the consultation in due course.

In closing, I reiterate my thanks to the noble Baroness, Lady Chakrabarti, for securing this debate, and to all those who have spoken today. London Fire Brigade’s culture review highlighted some truly terrible incidents of racism and misogyny. It is absolutely right that this House has devoted time to this issue. I pay tribute once more to those who have told their stories and enabled a light to be shone on these matters. This must be a watershed moment: action is needed and we are committed to pursuing a major programme of fire reform.

There are, of course, a great many people across the fire and rescue sector who, as many noble Lords noted, perform their duties with courage, skill and professionalism. Both they and the public deserve a service of which we can all be proud. Achieving that is a key focus for the Government.

Immigration Skills Charge (Amendment) Regulations 2022

Lord Murray of Blidworth Excerpts

Wednesday 7th December 2022 Lords Chamber

Moved by

[Lord Murray of Blidworth]

That the draft Regulations laid before the House on 17 October and 1 November be approved.

Considered in Grand Committee on 5 December.

Motions agreed.

X-Rays: Child Refugees

Lord Murray of Blidworth Excerpts

Tuesday 6th December 2022 Lords Chamber

[Baroness Prashar]

To ask His Majesty’s Government what assessment they have made of the ethical considerations of the use of X-rays to determine the age of child refugees seeking asylum in the United Kingdom.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

The Home Office Chief Scientific Adviser convened an independent age estimation science advisory committee to provide the department with independent advice on the ethics and implementation of different scientific approaches to age assessment. No official decisions have been made on the use of scientific methods, and the use of X-rays specifically would need to be independently justified and approved under the Justification of Practices Involving Ionising Radiation Regulations 2004.

[Baroness Prashar (CB)]

I thank the Minister for that Answer, but can he say when the report will be completed and published?

[Lord Murray of Blidworth (Con)]

The report is still under evaluation. I am afraid there is no estimate at the moment for the production of the report.

[Baroness Lister of Burtersett (Lab)]

My Lords, I have twice recently through Written Questions tried to find out whether the Government will publish the report of the advisory committee. Both answers—which were almost identical—avoided answering the question. Could the Minister therefore tell us now whether the Government will publish this key report and, if not, why not?

[Lord Murray of Blidworth (Con)]

As I said, the report is being considered and a decision on publication will be made in due course.

[Baroness Brinton (LD)]

My Lords, the British Dental Association is opposed to dental X-rays being used because of their inaccuracy. Other organisations such as the BMA agree. During the passage of what became Nationalities and Borders Act, the noble and learned Lord, Lord Stewart of Dirleton, the Minister at the time, acknowledged this lack of accuracy by saying that

“assessments are not of themselves accurate”.—[Official Report, 8/3/22; col. 1280.]

There was no dentist on the age estimation science advisory committee. Do the Government understand that both their own Minister and dentists disagree that this should be one of the methods used to assess age?

[Lord Murray of Blidworth (Con)]

The answer is no. By way of background, I remind the noble Baroness that, between 2016 and September 2022, there were 7,357 asylum cases where age was disputed and subsequently resolved, in which half the individuals—3,696—were found to be adults. At least 27 other European countries use scientific or medical methods as part of their age assessment process. The most common method by far internationally is the use of one or more X-rays, usually dental, wrist, clavicle or knee, although MRI scans, CT scans and physical or psychological examination by a doctor are also reported. The implementation of SAA across Europe varies enormously, with different methods or combinations of methods, data outputs and timing, and the use of negative interference.

[Lord Bellingham (Con)]

My Lords, given that 12 EU countries do not allow any asylum applications from Albania on the grounds that Albania is a democratic and aspirational country, why do we not do the same?

[Lord Murray of Blidworth (Con)]

Although I am tempted to address my noble friend’s topic, which is slightly off the topic of this Question, I will say only that the response to the problem of Albanian young men crossing the channel is being considered speedily by the department, and policies will be formulated shortly.

[Lord Singh of Wimbledon (CB)]

My Lords, it is an understatement to say that the use of X-rays to assess the age of children is like using a sledgehammer to crack a very small nut: it not only exposes children to harmful radiation but damages our image in the wider world. Would the Minister agree that traumatic events such as seeing near and dear ones killed and homes destroyed can visibly age people, including children, and that a country that is not even in the top 10 of those giving asylum per head of population should eschew this demeaning practice?

[Lord Murray of Blidworth (Con)]

I disagree with the noble Lord. As I have already said, there is clear evidence that many people claim to be a minor when they are not. Clear safeguarding issues arise if a child is inadvertently treated as adult and, equally, if an adult is wrongly accepted as a child and placed in accommodation with younger children to whom they could present a risk.

[Lord Coaker (Lab)]

My Lords, the Minister has just told us that the Government are assessing the evidence. Can he tell us what assessment they have made of the Royal College of Paediatrics and Child Health? Its members are experts in this area and it has said that the use of X-rays for age assessment does not work and is unethical.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

The international experience would tend to suggest that that is not the case. The position adopted by the department is that age assessment is one option on a menu of options available for the assessment of age; there is no suggestion that the assessment of age will be undertaken, at this stage and in the present state of the science, simply on a scientific assessment.

[Lord Kirkhope of Harrogate (Con)]

Would my noble friend the Minister not agree with me that this has been a problem for a considerable period of time? When I was in the Home Office, we also had difficulties with this matter, but the rules are quite clear: minors are entitled to support in a way that those who are overage are not. So, although it is regarded as being rather unfair to use X-rays, and maybe even dangerous, does my noble friend not agree that at least we have to apply those rules and find ways of applying them that are as fair as possible?

[Lord Murray of Blidworth (Con)]

I entirely agree with my noble friend. I can assure the House that we will ensure that scientific methods are implemented in such a way as to be compliant with the existing regulatory and statutory frameworks governing safety. I entirely agree with the sentiment of my noble friend’s question.

[The Lord Bishop of Carlisle]

My Lords, further to that answer, in determining what constitutes an appropriate scientific method of age assessment, can the Minister assure us that any future methods will be formally approved by the relevant medical body before they come into use?

[Lord Murray of Blidworth (Con)]

Plainly they will be formally approved by the advisory committee to the Home Secretary, and one suggests that the views of relevant professional bodies will be of great weight in making such a decision.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as a sitting magistrate I occasionally have to do age deeming, both in youth court and in adult court. Sometimes we have reports from social workers and sometimes—although rarely—we get expert reports. In the training I received, maybe 10 or 12 years ago, the central message I got was that it was ultimately a judicial decision and that all forms of report, be they from social workers or scientific reports, have quite large elements of doubt within them and the decision is ultimately a judicial one. Does the noble Lord agree?

[Lord Murray of Blidworth (Con)]

In the context of decisions made in magistrates’ courts, I agree that it is a judicial decision. In the context of asylum-seeking people who say that they are minors, the question then falls to the Secretary of State to determine whether they should be treated as a minor—and sadly, as I say, experience suggests that a large number of people have suggested that they are minors in order to take advantage of the perhaps more beneficial regime. It is very important that those people, for the reasons that I have already given the House, are weeded out by such a fair system as we can determine.

[Baroness Hayman (CB)]

My Lords, in response to the noble Baroness, Lady Lister, I think I heard the Minister say about a report that a decision on publication will be made in due course. Can he tell the House whether that is a decision on whether to publish or when to publish?

[Lord Murray of Blidworth (Con)]

At the moment, the answer is both.

[Lord Lilley (Con)]

My Lords, the British Dental Association has written to all of us saying that X-rays carry a small risk of possible long-term physical harm and that the risk is cumulative and successive exposures increase the risk, which means that each exposure over a lifetime must be clinically justified. Over my lifetime I have had more than 20 X-rays from dentists and have never been warned of this cumulative risk. Can my noble friend explain why the BDA is so worried about a single X-ray of someone claiming asylum who looks 22, especially when the BDA says that it can tell the age to within four years with 95% accuracy? So it might well show that someone was younger than they looked and be to their benefit.

[Lord Murray of Blidworth (Con)]

I entirely agree with my noble friend that it is an unusual position for the BDA to adopt.

Immigration Skills Charge (Amendment) Regulations 2022

Lord Murray of Blidworth Excerpts

Monday 5th December 2022 Grand Committee

Moved by

[Lord Murray of Blidworth]

That the Grand Committee do consider the Immigration Skills Charge (Amendment) Regulations 2022.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, these regulations make some simple but important amendments to the Immigration Skills Charge Regulations 2017.

The immigration skills charge incentivises UK businesses to take a long-term view of investment and training in the domestic workforce. It serves to address historic under-investment in training and over-reliance on cheap migrant labour by UK employers. The charge is paid by employers who sponsor migrants on skilled worker visas or global business mobility visas as senior or specialist workers. The charge is paid when the employer issues a certificate of sponsorship. They pay £1,000 per migrant per year for large businesses, or a reduced fee of £364 for small businesses and charities. In the last fiscal year, the charge raised £349 million. This funding helps to maintain the UK’s skills budgets. As education and skills are devolved matters, a portion of the income is shared with each of the devolved nations. It is distributed using the formula devised by Lord Barnett.

While it remains important that the charge is applied to most employers utilising migrant labour, there are good reasons to make exceptions in specific circumstances. For example, workers are currently exempt if they enter the UK for under six months, because they are unlikely to be filling a skills shortage. These regulations will exempt two new cohorts from the charge.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his introduction to the regulations. I agree very much with the noble Lord, Lord Palmer, about the SI being interesting for what it does not say as much as for what it does say. I have a couple of brief questions for the Minister; I will make some longer remarks on the next SI.

The SI has been through the other place, so we accept it, but we have certain questions about it. Why have the Government come to the conclusion that these exemptions are needed? In line with the point from the noble Lord, Lord Palmer, about what the SI does not say, what are the Government’s plans, at the same time as bringing forward exemptions such as these, to ensure that there are excellent training and opportunities for our resident workforce? How does this SI fit with the stated, explicit intention of the Home Secretary and the Government to reduce levels of migration, something which we have contested?

As the noble Lord, Lord Palmer, mentioned, an impact assessment for the SI has not been published. The Minister gave some limited explanation, but I would like to know why not, and how will the impacts of the changes in this SI be monitored if an impact assessment is regarded as unnecessary or indeed if one appears in future? We have no idea where we are without impact assessments.

For example, these changes are designed to increase the number of skilled migrants in this area. How many skilled migrants have there been under the scheme so far? With no impact assessment, how can we know how successful this charging scheme has been since it was introduced in 2017? It is supposed to incentivise employers to invest in training and upskilling the resident workforce and reduce reliance on migrant workers. As the noble Lord, Lord Palmer, says, without the impact assessment, how do we know that the Government have achieved their own policy objective? The charge was introduced to discourage employers from seeking the skills they needed abroad. Whatever the rights and wrongs of that, that was the whole purpose. How do we know it has been successful?

What the Government have done is say that they need a couple of further exemptions to plug a skills gap that they have identified. The charge rate is £349 million a year. How is that money spent? From my reading, it appears that it just goes into an amorphous pot of money. How is that used to address the skills gap in the UK? There are skills shortages which we are seeking to plug through this skills exemption scheme, among other measures. Alongside that, there is the paradox that there are huge numbers of unskilled jobs which are unfilled. How will the Government deal with the apparent paradox of a skills shortage and yet millions of unfilled, unskilled jobs? Whatever the SI says, that is surely the policy gap and issue that the Government need to address.

[Lord Murray of Blidworth (Con)]

My Lords, I am grateful for the contributions from the noble Lords, Lord Palmer and Lord Coaker, and for the opportunity to address some of the questions I have been asked.

I start with the point from the noble Lord, Lord Coaker, on the effect of relaxing immigration controls—if I have paraphrased that part of his question correctly. I acknowledge his concerns that creating new exemptions to the immigration skills charge appears contrary to the objectives of reducing net migration and ensuring that employers prioritise investment in resident workers. These are targeted exemptions, however. The Prime Minister recently spoke of the need to promote innovation in the economy and we think it sensible to ensure that sustained-growth businesses benefit from some easement of the usual requirements of the immigration system. That is why we have introduced the scale-up visa and why a disapplication of this charge is part of that package.

Similarly, we wish to promote cross-border trade and inward investment from overseas, and the rules that apply to movements of intra-company transferees fall within the scope of trade negotiations. In the case of the EU, we reached a reciprocal agreement that such charges should not apply to intra-company movements, and UK businesses with a presence in the EU will benefit from the certainty that that agreement provides.

I will address the point raised by both the noble Lords, Lord Palmer and Lord Coaker, on the impact assessment. Clearly, the immigration skills charge is a tax and it is therefore not subject to a formal impact assessment process. The Government have considered this matter carefully and any impacts will be minor. The scale-up visa route is new and was never planned to be subject to the charge; as such, a waiver is in place and so its exemption will not contribute to any reduction in revenue.

The number of EU intra-company workers who will be exempted from the charge is expected to be about 2,000 annually. This will account for a reduction of income in the region of £3.3 million per year—less than 1% of the total annual income from the charge.

I turn to the question posed by the noble Lord, Lord Palmer, on the Explanatory Memorandum and its attestation on the European convention. Paragraph 5.1 reads,

“The Minister for Immigration, Tom Pursglove, has made the following statement regarding Human Rights: ‘In my view the provisions of the Immigration Skills Charge (Amendment) Regulations 2022 are compatible with the Convention rights.’”


I submit that he was the correct person to make the declaration at the time that it was made.

I turn to the question of reciprocal benefit with the European Union. It is understood that arrangements are being made in various parts of the EU, including France, where a €200 charge for British intra-company workers is being removed to comply with obligations under the agreement.

A general question asked by the noble Lord, Lord Coaker, was on how the money is spent on skills. The money is paid into the Consolidated Fund and then allocated to the devolved nations in accordance with the Barnett formula, as I said. The skills budget is well known to the noble Lord and is used, in that way, to alleviate any skills deficit.

The costs of collection was one issue touched on by the noble Lord, Lord Palmer. The Home Office publishes annual accounts setting out financial details, including the total costs for collection of the immigration skills charge and immigration civil penalties. For the financial year 2021-22, the cost associated with collection was £7.7 million. Details relating to what is included within the cost of collection are also contained in the annual accounts report. The costs include payment of handling charges associated with collecting the immigration skills charge, as well as the cost of staff involved in administering the charge and preparing the trust statement.

--- Later in debate ---

[Lord Palmer of Childs Hill (LD)]

Just to take up the points that the Minister kindly referred to, he said that this would not involve additional costs. Surely an impact assessment would have talked about how much take-up there would be. If the take-up is different, the costs will be different, because more people will seek the relief. Without empirical examples, we do not know.

The Minister said that the relevant Minister was correct when he said that this was compatible with the European convention. I would have thought this was a legal matter and should have had a report from the Attorney-General, rather than a Minister who was implicitly involved in it.

[Lord Murray of Blidworth (Con)]

I will deal first with the point about the impact assessment. As I say, as a matter of practice on taxes, the requirement to hold an impact assessment in the sense described by the noble Lord is not normally followed. However, as I say, the department closely scrutinised this question and came to the conclusions I already outlined.

On the obligation to the European Convention on Human Rights at paragraph 5 of the Explanatory Memorandum, Section 19 of the Human Rights Act requires a Minister presenting a piece of legislation to certify whether it is compatible. It is not normal practice that that attestation is signed by the Attorney-General. Plainly, all these matters are subject to legal advice, as the noble Lord would expect.

Motion agreed.