National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Evans of Weardale (CB)]

I thank the noble Baroness very much for that clarification; in that case, the amendment certainly needs some amendment itself.

I am also puzzled as to the route proposed that any disclosure, particularly from one of the intelligence agencies, can go to any public authority. Again, that seems a surprising route for a whistleblowing channel for somebody in the intelligence and security agencies.

More particularly, and more importantly, I absolutely fail to recognise the culture of cover-up that the noble Baroness, Lady Kramer, cites. Having worked in the Security Service for 33 years, I am confident in saying that, far from there being a culture of cover-up, there was in fact a strong willingness to speak up, as far as I could see. There was strong and, at times, fairly heated internal debate on some of the ethical matters that have been cited in this debate. So I do not believe that the characterisation of the intelligence agencies we have just heard in any sense accurate. Although the noble Baroness, Lady Manningham-Buller, gave the complete list of everybody to whom a member of the agencies could go, I think that almost anybody in the agencies would recognise their ability to go to the internal ethics counsellor—a role that plays an important part in actively encouraging debate of these issues—who has a direct right of access to the director-general of the day; I am sure that that would still be the case. That role has now extended from the Security Service to the other intelligence agencies. Also, it was clear and straightforward how you obtained the contact details for the external counsellor who acted as a whistleblowing channel directly outside the service. Of course, that was put in place specifically because of previous concerns that there was no such provision, and it was reflected in the legislation of the day.

I feel that the detail of this amendment is not clear —certainly not to me. The need for this amendment has not been made clear, in my view, because it is based on a rather misleading characterisation of the internal culture of the intelligence services. In my experience, there has been considerable focus on ethical matters and the ability internally to debate those.

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

My Lords, I thank Members of the Committee for all their speeches. Amendment 119 seeks an assessment of how the Act relates to the Official Secrets Act 1989. As we set out in last week’s debate, the new espionage offences in Part 1 of the Bill replace and reform the existing provisions in the Official Secrets Acts from 1911 to 1939. They carry strict tests for a person to be caught within those sections. For example, the first two offences apply when a person is acting for, on behalf of, or with the intention to benefit a foreign power. This is distinct from the Official Secrets Act 1989, which covers unauthorised disclosures by Crown servants and government contractors. As the Committee knows, the Government are not reforming the 1989 Act through the Bill, as has been observed this evening. Under the existing law, it is possible that a person making a damaging disclosure could commit both the espionage offence in the Official Secrets Act 1911 and an offence under the Official Secrets Act 1989.

Pausing there, I thank the noble Lord, Lord Hacking, for his contribution in relation to the 1911 Act. The difference, drawn out in the fact that you could commit both an offence of espionage under the Official Secrets Act and an offence under the 1989 Act, will continue to be the case. It is possible that a person could commit an offence under two pieces of legislation simultaneously and be charged in relation to both. That is not a matter unknown in the criminal law. Any overlap between the espionage offences in the Bill and the Official Secrets Act 1989 allows us to prosecute damaging acts in the most appropriate way. Where a person commits both a 1989 Act offence and an espionage offence under the Bill, the charging decision would be taken by the Crown Prosecution Service in accordance with the Code for Crown Prosecutors, as is always the case. CPS prosecutors select the charges that they consider are most appropriate on the facts of each case, and to reflect the nature of the wrongdoing. I hope that this explanation reassures the Committee that the Government have carefully considered the interaction between our new offences in the Bill and those in the 1989 Act.

The noble Lord, Lord Coaker, raised a question regarding reform of the 1989 Act, and I will address it directly. The Government’s view is that the Official Secrets Act 1989 is an essential part of our ability to protect national security and sensitive information. However, the views and concerns raised by stakeholders in response to our public consultation for the Bill, including those in favour of not reforming the Act at all, highlight the complexity of the legislation and the wide variety of interests that should properly be considered before pursuing any reform. Given its complexity, we are also concerned that reform of the Official Secrets Act 1989 at this time may distract from the Government’s package of measures in the Bill to counter state threats, and prevent us from providing law enforcement and the intelligence agencies with the tools that they need now directly to tackle these threats. Accordingly, we do not have any immediate plans to pursue reform of the Official Secrets Act 1989, but will continue to keep that position under review. The matters raised by the noble Lord, Lord Wallace, are well considered. Issues such as whether to increase maximum sentences under the Official Secrets Act 1989 would be considered as part of potential reform proposals and would be viewed in the round with the measures of sentences in the Bill.

Amendment 120 tabled by the noble Baroness, Lady Kramer, proposes the establishment of a new office for the national security whistleblower. We are told that the aim of such an office would be to protect whistleblowers who make disclosures related to offences under the Bill where disclosures are considered to be in the public interest. Of course I pay tribute to her in her ongoing work and efforts to champion the important cause of whistleblowing. The Government are committed to ensuring that our whistleblowing framework is robust, and I confirm that the business department intends to carry out the promised review of the existing framework, and that further details will be set out in due course in relation to that.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister. He is aware of the point I raised earlier in Committee, which, as he correctly pointed out, pertained more to the Official Secrets Act in respect of the authorised disclosure of information. The Law Commission’s recommendation is clear—that there should be an independent statutory commissioner, to which individuals can go, who has investigatory powers—but the Minister says that there are no plans to reform the 1989 legislation.

We heard from the noble Lord, Lord Evans, and earlier from the noble Baroness, Lady Manningham-Buller, that they do not recognise this culture, but the Law Commission came to its own view and its own recommendation. Do the Government accept that recommendation but then say that they are not going to do anything about it, or will we have to find a way to bring together the disclosure of information and the points that my noble friend raised? The Law Commission’s recommendation was perfectly clear, and it was not besmirching the culture within the agencies. It was a very clear recommendation.

[Lord Murray of Blidworth (Con)]

Indeed, the Law Commission made a recommendation about a potential reform to the 1989 Act. As I have already said, that is not the purpose of this Bill and will be a matter for a future reform, which will not be conducted immediately, as I already explained in answer to the point from the noble Lord, Lord Coaker. The Law Commission’s recommendation will have considerable weight but, at this stage, I cannot prejudge any government decision in relation to the 1989 Act.

In last week’s debate, the noble Lord, Lord Coaker, asked about the Government’s plans to update internal whistleblowing guidance. I can confirm that the Government regularly keep this guidance under review and, last year, they updated it to include specific reference to how to raise an issue that would require disclosure without breaching the Official Secrets Act 1989. The updated internal guidance has been shared across departments and agencies, with confirmation from all Whitehall departments that a review of their own processes and procedures has been undertaken or is planned.

Across government, organisations have also continued to undertake activities further to develop a safe and supportive culture for raising concerns. Over the last year, the majority, including all 17 Whitehall departments, have undertaken communications through awareness-raising events and campaigns, including an annual “Speak Up” campaign.

We of course understand that journalists have a specific and important role to play in holding government to account in our democratic society. We also understand that responsible journalists do not want unwittingly to put lives at risk or compromise national security. That is why we have robust processes in place which enable journalists to mitigate the harm caused when considering the publication of potentially damaging information.

For example, during the Government’s public consultation on the Bill, several media stakeholders commented on the value of the Defence and Security Media Advisory Committee—the DSMA—which alerts the media to the consequences of disclosing certain types of information and provides advice on how to mitigate damage, while leaving editors to judge whether to publish or broadcast. A number of editors already engage with this valuable process when considering the publication of sensitive information, and we encourage them, and others, to continue to do so.

The Government are committed to ensuring that these channels are safe, effective, and accessible. Accordingly, for the reasons I have just set out, the Government, with regret, cannot accept the tabled amendments and invite their withdrawal.

[Lord Coaker (Lab)]

My Lords, I will be brief, but will start by thanking the Minister for his response and all noble Lords for their contributions to this short but important debate. I am grateful to the Minister for following up on my question from last week about what was happening with the updating of guidance for people in departments across government who wish to raise concerns. But frankly, the headline from what the Minister has said is that the Government have kicked the reform of the Official Secrets Act 1989, which was never particularly on the immediate horizon, into the long grass. That is deeply disappointing because, irrespective of one’s view, the issues of the public interest defence and people being able to come forward—whistleblowers, if you want to call them that—will not go away. Reforming the Official Secrets Act would have enabled us to debate that and come up with an Act that is relevant to 2023 and beyond. As I say, it is deeply disappointing that the Minister has effectively kicked that reform into the long grass, and that is the headline from this response to the amendments. With that, I beg leave to withdraw my amendment.

Asylum Seekers

Lord Murray of Blidworth Excerpts

Tuesday 17th January 2023 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, on behalf of my noble friend Lord Dubs, I beg leave to ask the Question standing in his name on the Order Paper.

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

My Lords, the latest immigration statistics published by the Home Office show that 143,377 people were waiting for an initial decision on their asylum claim as of September 2022, and that 15,987 people were granted asylum or other leave in the year ending September 2022. Of the 11,974 enforced or voluntary returns, there were 774 enforced or voluntary asylum-related returns in the year ending June 2022.

[Lord Hunt of Kings Heath (Lab)]

In last month’s debate in the name of the most reverend Primate the Archbishop of Canterbury, my noble friend Lord Dubs made a very moving speech, where he said:

“The refugee issue is testing our humanitarian principles to the ultimate. Our response will determine what sort of country … we want to be … but particularly how we value our fellow human beings who have suffered greatly from … wars and conflicts.”—[Official Report, 9/12/22; col. 378.]


Given the lamentable performance of the Minister’s department, as we have heard from those figures just now, and the intemperate language used by the Home Secretary when she described asylum seekers as invaders, does he think this Government meet my noble friend’s humanitarian test?

[Lord Murray of Blidworth (Con)]

Yes, I do. The Prime Minister was clear in his remarks on 13 December that it is a key priority of the Government to address the unlawful crossings of the channel, to tackle illegal migration and to ease pressure on the asylum system. As the noble Lord knows, we will achieve that by doubling the number of caseworkers to help to clear the asylum backlog by the end of 2023, we will re-engineer the end-to-end process by reducing paperwork and interviews, and we will allocate dedicated resources to different nationalities in the asylum backlog.

[Baroness Hamwee (LD)]

My Lords, in speaking just before Christmas to the Justice and Home Affairs Committee of your Lordships’ House, which I am lucky enough to chair, the Home Secretary said that guidance for caseworkers was to be made shorter and easier to use. Can the Minister reassure the House that the Home Office is consulting experienced counsellors and therapists in the redesign so that the individual circumstances and experiences of each applicant can be properly assessed?

[Lord Murray of Blidworth (Con)]

Yes. Any such revised guidance will take into account input from a whole range of stakeholders, no doubt including those of the type mentioned by the noble Baroness.

[Lord Browne of Ladyton (Lab)]

My Lords, I know from my own experience when I was Minister for Immigration that when backlogs are large it is imperative to look after the most vulnerable people in custody. Why then did the Home Secretary end the system of annual investigations into the treatment of vulnerable adult detainees? Is the detention system working so well now that these investigations are no longer necessary, or are there some other protections for those people to ensure that the welfare of vulnerable adult detainees has not been compromised?

[Lord Murray of Blidworth (Con)]

Certainly the inspection of detention facilities will continue. I am not aware of any change in policy in relation to the particular category of detainees that the noble Lord mentioned, but I will make inquiries in the department and write to him on that.

[Lord Hannay of Chiswick (CB)]

My Lords, would the Minister tell the House what provision in the refugee convention, of which we are a party, permits us to refuse to even consider the asylum request of someone who arrives, irrespective of how they arrive?

[Lord Murray of Blidworth (Con)]

As the noble Lord will be aware, in the Rwanda decision, the High Court considered the application of Article 31 of the refugee convention. I commend the High Court’s reasoning to the noble Lord in answer to his question.

[Baroness Berridge (Con)]

In the debate in the name of the most reverend Primate the Archbishop of Canterbury, there was much discussion of the Ukraine situation and Hong Kong. To the general public, those schemes seem like asylum to a place of safety, but in fact they are technically visa schemes. Could my noble friend the Minister outline that we do not seem to have the same problem in relation to those schemes? If he does not have the figures to hand, could he write to confirm what the average wait time is for vulnerable groups applying for those visas?

[Lord Murray of Blidworth (Con)]

My noble friend is correct. I do not have to hand the figures on the wait for BNO applications from Hong Kong, which I think was the thrust of her question. I will find that out and write to her.

[Lord Leong (Lab)]

My Lords, on 13 December 2022, I asked the Minister about the post-traumatic stress disorder suffered by Hong Kongers who fled the crackdown by the ruling Communist Party and are currently seeking asylum here. I asked him:

“What assessment have the Government made to identify those suffering from PTSD?”


He replied:

“On the BNO Hong Kong cohort, I do not have the answer, and I will write to the noble Lord in relation to it.”—[Official Report, 13/12/22; col. 551.]


I am still waiting for that answer.

[Lord Murray of Blidworth (Con)]

I am sorry to hear that the noble Lord has yet to receive an answer. I will chase it and endeavour to get a response to him as soon as I can.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, in his reply to the noble Lord, Lord Hannay, the Minister referred to a judgment which no doubt is available for anyone to read. However, for the benefit of the House, would he be prepared to summarise it? That would give an answer to the noble Lord’s question: what, in particular, allows the Government to discriminate between asylum seekers who arrive by one method and those who arrive by another?

[Lord Murray of Blidworth (Con)]

The 1951 convention describes the categories of people who might seek protection from their native country, and, as a result, they are entitled to make a claim for asylum. There is nothing in the text of the convention which limits the receiving nation state’s obligation to consider applications from various classes of nations. That is why we have international agreements; for example, when we were members of the European Union, there was an agreement that other European Union member nations were not able to lodge asylum claims within the United Kingdom.

[Lord Kerr of Kinlochard (CB)]

Would the Minister agree that it would be better if those waiting in that internal queue were able to work—better for them, the Exchequer and the country?

[Lord Murray of Blidworth (Con)]

I am afraid that I must disagree with the noble Lord. It is clear that one of the major pull factors for people crossing the channel is that they hope to work in Britain. Legally allowing people to work would increase the pull factors for them to embark on dangerous and illegal journeys across the channel.

[Lord Coaker (Lab)]

My Lords, time after time, we hear the Minister try to explain away the chaos of the Government’s asylum policy. Time after time, new legislation is announced, chasing headlines. Time after time, the Chamber hears the appalling asylum case figures, with the shocking human consequences, as we have just heard again today. I will ask about one example: when will the doubling of asylum caseworkers to 2,500, as briefed by the Prime Minister last year, happen? Yesterday, the Minister could not confirm that the recruitment of those caseworkers had even started. It is a shambles, is it not?

[Lord Murray of Blidworth (Con)]

The Home Office currently employs about 1,280 asylum decision-makers and will double the number of caseworkers to help to clear the asylum backlog by the end of next year. Recruitment and retention strategies are in place, with the aim of increasing staffing, reducing the output in the number of cases awaiting a decision and increasing outputs of decisions. We have increased the number of asylum caseworkers by 112%, from 597 staff in 2019-20. We will recruit more decision-makers, which will take our expected number of decision-makers to 1,800 by summer 2023 and to 2,500 by September. We have implemented a recruitment and retention allowance, which has reduced decision-maker attrition rates by 30%, helping us to retain experienced asylum decision-makers.

[Lord Purvis of Tweed (LD)]

My Lords, at the end of October, 222 unaccompanied minors were unaccounted for in the system. In November, I asked the Minister what the figure was, and he said that he did not know. The Government have presumably made major progress on unaccompanied children in the system, so how many are currently unaccounted for?

[Lord Murray of Blidworth (Con)]

As the noble Lord knows, local authorities have a statutory duty to protect all children, regardless of where they go missing from. On the concerning occasion when a child goes missing, those local authorities work closely with local agencies, including the police, urgently to establish their whereabouts and ensure that they are safe. Ending the use of hotels for unaccompanied asylum-seeking children is an absolute priority for the Government. We will have robust safe- guarding procedures in place to ensure that all children in our care are as safe and supported as possible, as we seek urgent placements with a local authority.

Immigration (Leave to Enter and Remain) (Amendment) Order 2023

Lord Murray of Blidworth Excerpts

Tuesday 17th January 2023 Grand Committee

Moved by

[Lord Murray of Blidworth]

That the Grand Committee do consider the Immigration (Leave to Enter and Remain) (Amendment) Order 2023.

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

My Lords, the order, laid before the House on 7 December 2022, is required to enact one very minor change to the legislation which sets out the form and manner by which leave to enter the United Kingdom is granted and refused. It will amend the eligibility criteria for people seeking to enter the United Kingdom via an automated e-passport gate, or e-gate, so that eligible, accompanied children as young as 10 may do so. The lower age limit in the present instrument is 12.

This statutory change is needed to enable a limited trial to take place in the February half term, which will examine whether the lower age limit for entry via an e-gate should be 10 years, rather than 12, moving forward. We hope that this will have the effect of accelerating the passage through the airport of families with children aged 10 and 11. In order to carry out the limited exercise—the pilot—it is necessary in law to first pass this order.

The proposed proof of concept exercise will take place, as I said, in the February half term. It will be limited to three airports: Stansted, Heathrow terminal 5 and Gatwick’s north terminal. Once completed, the Home Office will make an assessment of whether the lower age limit of 10 should be more widely adopted.

The Government’s ambition for our future border involves making maximum use of automation. The majority of passengers will routinely cross the UK border using automation as their only point of contact. Indeed, this ambition was set out in last year’s New Plan for Immigration strategy, in which the proposed proof of concept involving younger passengers was made public. Increasing, in a controlled manner, the number of passengers eligible to use an e-gate is a logical next step.

Noble Lords will be aware that some form of automation is already used by large numbers of people passing through the UK border. Indeed, there has been significant widening of the pool of nationals eligible for e-gate entry in recent years. The e-gates started in 2008 and there has been progressive expansion. A previous amendment to the 2000 order in May 2019 extended e-gate eligibility to visitors from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America.

The continued use of e-gates should be seen in the context of the development of our new global border and immigration system, which makes better use of data, biometrics, analytics and automation to improve security and fluidity across the UK border. The use of e-gates is an important part of that approach, as they provide a safe, secure and efficient means of processing arriving passengers, allowing our highly trained Border Force officers to focus their efforts on those who seek to abuse or exploit the system and those who are vulnerable, as well as wider border threats.

For eligible families with young children, there are obvious advantages to being able to enter via an e-gate, in that they may enter the UK swiftly and effectively without having to queue to be seen by a Border Force officer. We believe that this in turn benefits others by minimising queuing times and bottlenecks at busy UK ports, especially at peak times of the year, such as half term or the summer school holiday season.

There are a number of important questions that must be answered before a permanent lowering of the lower age limit. These include whether children aged 10 and 11 have the cognitive ability to use the technology efficiently and, indeed, whether the technology is able to process such young passengers. It is because of these and other considerations that we must first conduct this short trial, which will be closely monitored by officials and have its results rigorously analysed.

Needless to say, the Home Office takes most seriously its statutory duty to safeguard and promote the welfare of children. We will use the live trial to consider whether there may be any unintended consequences for the welfare of younger passengers, such as anxiety if they become temporarily separated from their parents. To be clear, there will be no decision to extend e-gate eligibility to younger passengers if we consider that doing so would expose them to any safeguarding risks that cannot be mitigated.

Although this amendment enables us in law to allow eligible passengers younger than 12 to use an e-gate, it does not confer a right on those passengers to do so. It does not mean that passengers aged 10 and 11 must be able to use an e-gate at any UK port with that facility. Eligibility will be limited to accompanied 10 and 11 year-olds of eligible nationality at the three participating ports, and only for a 14-day trial period. At other ports, the lower age limit will remain where it is currently set: at 12 years of age.

This order enacts the most modest changes to its parent legislation but allows for a significant next step to be taken in developing a secure and smooth border that demonstrates to the rest of the world that the UK is open for business. I commend it to the Committee.

[Lord German (LD)]

My Lords, I recognise that this is a very small change to the legislation but I am of course tempted to stray into other immigration and right-to-remain areas. However, temptation is not necessarily the best way of approaching this order so I will stick to the instrument before us.

The first thing I want to say is that I have just returned from a parliamentary delegation. My delay was such that I was not able to find any transport whatever from Heathrow Airport; I would have had to sleep on the floor had I not been able to take a taxi. The reason for that was the snaking queues. If you extend the eligibility, which is a reasonable thing to do, you must have a sufficiency of e-gates. Clearly, there are insufficient numbers at Heathrow. This happened late at night but it could have been early in the morning, or whenever; I have experienced the queue being quite extensive probably three or four times in the past five months. Extending the queue by giving more people this opportunity does not solve the real problem, which lies in an insufficiency of e-gates.

There are a number of related questions about children. I have observed them queueing with their families to get through on a separate basis. I have also observed people who are elderly or need support being helped by a family member to make sure that they put their passport in the slot and withdraw it in the right way. It is not easy to do that. The main support that was given was having an official standing by who could tell people exactly what to do. I wonder whether there are sufficient staff to handle an increased number, given the difficulties already being experienced.

It is likely that, when people put their hand on their passport and put it on to the reader, it will not work the first time. I have never had a reader work with mine the first time—well, perhaps once. It has always been after two, sometimes three, attempts. That is nothing to do with me because my hand is in the same place and it is the same passport. I have never understood why it fails each time then, on a subsequent occasion, putting it through works. That may be the technology; it has worked on the first occasion in other countries but not here in the UK. I have no idea why that is.

The efficiency of the e-gate system needs to be improved as well. I observed in front of me, having had plenty of time to watch as the queues lengthened, how many people had to go through more than one attempt to get the gate to open. It needs to be improved in efficiency. I would like to understand, if the Minister can tell us, whether gate efficiency can be improved and what the problems are in the second, perhaps third, attempt to get them to work.

The other problem that this test check of an age group will come against is when families have one child of 10 and an eight or seven year-old. They are not going to separate; they are going to take them together. You have to have a family in which there is a 10 year-old and any other children have to be older than 10. While it will be an experiment, I have no idea—perhaps the Minister can tell us—of the number of families coming through with only children aged 10 or older with them and who will be able to take advantage of this.

The other question I have is about the height of individuals. Anybody who has taken any children to a theme park will know that they have measures of height by which you can take part in certain rides. When you come to the positioning of a child against it, is there a height problem for younger children who are perhaps small in stature and will have to put their hand almost as high as their head to get their passport in? Will the machinery accept that? I hope all of this has been thought out. If it has not, it will probably become clear when the experiment takes place.

My final point concerns what you might call an ESTA approach in USA terms—that is, where you have to complete a document in advance to visit. Will the system already have the ability to understand such a certificate when the UK introduces them? Will it already be built into the software? I think it applies to every country—apart from the UK and Ireland, obviously—that currently has the ability to use these e-gates. As I understand it, there will be a requirement—the Minister can confirm this—to fill in an ESTA-type document that deals with your entry. Will the software in the e-gate system accept that, so that the people going through will already have had that check, or will anybody with one of these certificates have to be peeled off and sent to another means of manual checking?

There is automation, obviously. Anything that can be done to speed up the system of getting people through into the United Kingdom properly and swiftly will be welcome. The only question is whether these will all be tested in the experiment that is about to be undertaken. Could the Minister address those specific issues—height, the ESTA-type certificates, the shortage of gates and whether there will be sufficient assistance—in replying to this debate? Otherwise, I am satisfied that this is a reasonable thing to do.

--- Later in debate ---

One hopes that the best mechanisms are being used and that it is not a pilot to find out what the best mechanisms are, because we cannot really take chances with the safety of children. To go back to my earlier point, can the Minister assure us that the pilot will be ended sooner than two years if it becomes obvious during that period that increased dangers to children are emerging? As the noble Lord, Lord German, said, we all wish to hear reassurances on these issues as this order progresses through Parliament.

[Lord Murray of Blidworth (Con)]

I thank both noble Lords for their helpful contributions. I will certainly seek to address all the questions asked.

I will deal first with the points raised by the noble Lord, Lord German. By way of context—this also answers a couple of the points from the noble Lord, Lord Coaker—the pilot is for two weeks, or 14 days, during the half term and on those three specific sites. During the operation of the pilot, staff from the relevant team will be supervising so any problems will be swiftly rectified. As I am sure noble Lords are aware, the e-gates are clear glass, so the separation of people from one another is always limited to that clear glass and can be rectified very swiftly if necessary.

It is anticipated—I say this as the father of 10 year- old twins—that the average 10 year-old will have very little difficulty operating the e-gates, given their technical proficiency in many other things. Indeed, they may be better than some older age cohorts at successfully operating the e-gates. It is a usual experience that most families will put the children through the e-gate first and supervise the placement of the passport. It will be interesting to see the extent to which that happens during the pilot. That certainly seems to be the logical way to approach it.

At the relevant part of Heathrow where the pilot is taking place, there are 25 e-gates. It is felt that this is sufficient. Because it is happening during the half-term period, statistics suggest that there will be a lot of 10 and 11 year-old traffic, so it is a good way to test the system.

I was asked by both noble Lords why and how the age of 10 was selected. It was selected both on a cognitive basis, as we think 10 year-olds can operate it—that is certainly my personal experience—and because, from a height perspective, the technology will fit. We have used ONS height statistics, and we think that will work, but clearly it is something we want to test during the pilot. That is why we chose 10 rather than nine or 11. It has also been the international experience; in other countries 10 is the age and it seems fairly successful.

I will turn to one or two of the other points made by the noble Lord, Lord German. On the question about support, the hosts—the airport staff managing the queues—direct people and support them through the e-gates. They are contracted airport employees. They have been worked with in preparation for this pilot to ensure that they are going to provide sufficient support during the pilot and beyond. We will of course, as I have said, ensure increased support during the pilot.

Regarding what we are calling electronic travel authorisations—this is our version of the ESTA—when they are introduced the e-gates will be able to confirm the types of permission held before they allow somebody to enter the UK. I suspect that is the answer the noble Lord anticipated. I have already made the point that the ONS statistics suggest that most 10 year-olds are tall enough to operate the machine.

I turn to the questions posed by the noble Lord, Lord Coaker. At the moment it is anticipated that most children using the e-gates will be accompanied, mostly by their families. On the question about school trips, clearly it would be appropriate for a small school trip but maybe not for one with a large number, which would probably go to the primary control point. Again, we will test that through the pilot.

The next question was on how the airports were chosen. They were chosen with some care because, statistically, those three airports have been ones where there has been quite a number of children of those ages in the February half term. Those airports were selected because it will be a real-world test of the system.

Regarding Northern Ireland, we do not believe there are any ramifications in relation to the common travel area particularly. Obviously Irish citizens, as with British citizens, do not require leave to enter but can use the gates to go through the airport. It will be the case that 10 year-old Irish children can use the gates, just as 10 year-old British children can.

On the level of readiness, they have been working towards this pilot since October. It is the department’s view that the training is ready, and we are aiming for this February half-term period. If there is any intervening event, the department is obviously prepared to postpone the pilot if needed.

As to the question of rolling out nationally, the position is that this change does change the regulations. If the pilot is successful and the decision is taken to roll it out nationally, there will be no need for a further regulatory change, but we will obviously keep the House up to date in the event of that decision being made.

Turning to eligible nationalities, I appreciate that it is not clear, because it is just an amending instrument, but in the parent order, the Immigration (Leave to Enter and Remain) Order 2000, SI 2000/1161, the reference in Article 8B is to the schedule to the order. It is not terribly long, so I will read it out. It says that they consist of the EU nations, Australia, the United States of America, Canada, New Zealand, South Korea, Japan and Singapore. Clearly, over time, one anticipates that this will grow.

[Lord German (LD)]

Does that include EFTA—Norway, Liechtenstein, Switzerland and Iceland?

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[Lord Murray of Blidworth (Con)]

Yes, I should have made that clear. Indeed, it is the wider EEA, not just the EU, so it includes all the EFTA countries. I thank the noble Lord; that is an important clarification.

As for safeguarding, we are satisfied that the safe- guarding risk is appropriately handled during the pilot and measures will be in place to ensure that there is no safeguarding risk arising as a result of the change. Obviously, we will consider that and whether there have been any implications or learning points arising while we are considering the results of the pilot.

With that, I think I have addressed all the issues which arose, and I ask the Committee to approve the instrument.

Motion agreed.

Asylum Seekers: Local Authority Accommodation

Lord Murray of Blidworth Excerpts

Monday 16th January 2023 Lords Chamber

[Lord Sahota]

To ask His Majesty’s Government, further to the statement by the Prime Minister on Illegal Immigration on 13 December 2022 (HC Deb cols 885–8), what steps they plan to take, if any, against those local authorities that do not take their fair share of asylum seekers in the private rental sector.

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

My Lords, all local authority areas in England, Scotland and Wales became asylum dispersal areas in April 2022, ensuring that pressures are equitably shared across the United Kingdom. All local authorities and strategic migration partnerships have submitted plans indicating intent to participate. Where local authorities are not delivering on plans, accommodation providers will be instructed to procure outside the plans and recommendations. We remain hopeful, however, that, through co-operation, co-production and co-design, alignment can be reached.

[Lord Sahota (Lab)]

I thank the Minister for his Answer. However, some local authorities take more than their fair share of asylum seekers. My question is simply: can they expect some kind of financial reward for that? Some take more than others.

[Lord Murray of Blidworth (Con)]

Certainly, when a refugee is assigned to a local authority area, there is a payment to the local authority in relation to that person to defray the costs of the accommodation for that individual.

[Lord Kamall (Con)]

My Lords, the Question was about local authorities that do not take their fair share. Will my noble friend the Minister enlighten the House on whether he or his department are aware of any local authorities that have refused to take their fair share of asylum seekers?

[Lord Murray of Blidworth (Con)]

Since April 2022, when the policy was changed, the department has not noticed that any particular authorities have been backward in coming forward in relation to assisting the department in this regard.

[Baroness Lister of Burtersett (Lab)]

In view of the recent report on PoliticsHome of an asylum-seeking family left in mould-ridden accommodation, and the claim of a local charity that the standard of Home Office asylum-seeker accommodation is often “squalid and unsanitary”, what steps are the Government taking to ensure that all such accommodation meets basic standards of decency?

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for her question. Obviously, asylum seekers who would otherwise be destitute can obtain support, including accommodation, under Section 95 of the Immigration and Asylum Act 1999. There is a requirement under Section 96 of that Act that such accommodation should be adequate to the needs of the supported person and their dependants. The courts held in the case of AMA v the Secretary of State last year that a hotel room met the threshold of adequacy, despite the nature of the accommodation being far from ideal. Clearly, it is important that all accommodation provided is adequate and meets the needs of those within it. The department is responsive to complaints of inadequate accommodation; it is a priority for the department to ensure that accommodation is appropriately delivered to those who need it.

[Lord Cormack (Con)]

My Lords, perhaps I might raise a point that I have raised before with my noble friend. Have serious discussions been entered into with our French friends and neighbours to try to ensure that adequate, sanitary—not luxurious—accommodation is built to a considerable extent on the other side of the channel, and that British officials can process applications there?

[Lord Murray of Blidworth (Con)]

Clearly, the arrangements made for asylum seekers within the French Republic are a matter for the French Government. I understand that arrangements are made in accordance with their obligations under the refugee convention. There is no express intention by the French Government to ask us to assist with their discharge of those duties.

[Baroness Pinnock (LD)]

My Lords, the Minister said in response to an earlier question that accommodation should be adequate and of a reasonable quality for asylum seekers. Yet we know, from report after report, that that is not the case. Asylum seekers are being housed in very low-quality housing. Three was a report in Inside Housing only last week that described a mother from Nigeria in one-room accommodation with no lock on the door. These are vulnerable people. Asylum accommodation was privatised in 2012. Will the Government change that, so that public sector providers can provide adequate and good accommodation?

[Lord Murray of Blidworth (Con)]

Clearly, the coalition policy to allow private providers of accommodation to perform that service is working well, and the Government have no intention of revising that policy.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, at the end of last year, the Prime Minister pledged more staff to clear the asylum backlog, when it emerged that the Home Office had failed to process 98% of channel crossing cases in the last 12 months. Can the Minister confirm whether recruitment has begun?

[Lord Murray of Blidworth (Con)]

Clearly, there was such a commitment. I do not wish to reveal any great secrets, but it is a very high priority for the department and I anticipate that good news will be making its way to this House shortly.

[Baroness Berridge (Con)]

My Lords, I am grateful to my noble friend for outlining that distribution is now across all local authority areas. However, for unaccompanied asylum-seeking children, it is not just a question of accommodation; there are other support services that they need. So could he confirm whether unaccompanied asylum-seeking children are covered in this national distribution plan?

[Lord Murray of Blidworth (Con)]

Clearly, different provisions apply in relation to unaccompanied asylum-seeking children, and particular care is taken. Obviously, once a child is allocated to a local authority, the obligations of looking after the child become those of the authority. Clearly, these children are provided with everything that an unaccompanied child would need.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I wonder whether the Minister may come to regret his statement that all is working well with accommodation for asylum seekers and refugees. Too many of the stories, even around Afghan and Ukrainian refugees, give us shame: there are people on the streets, and people in totally inadequate accommodation, with their children not able to access school and now requiring mental health treatment. Much of this is because of the poor quality of the accommodation that is available to them. I do not know what the word is—perhaps “compassion”. A little more compassion, and being more in touch with reality, would mean that, at the end of the day, we at least gave human conditions to the humans who want to come and live here.

[Lord Murray of Blidworth (Con)]

I disagree with the noble Baroness that there is any want of compassion. Clearly, the asylum system in this country is struggling with very large numbers of people who have come here. We presently have 107,700 people in asylum support, and 50,800 of them are currently awaiting dispersal and are housed in initial and contingency accommodation. That includes some 373 hotels, and some of them are of a very high standard. I simply do not accept the characterisation that the noble Baroness suggested.

[Lord Watts (Lab)]

My Lords, the Minister says that he is not aware of any local authority that has failed in its duty to provide accommodation. Will he produce a league table with all the local authorities, so that this House and everyone outside it can understand what the real position is, rather than what the Minister claims?

[Lord Murray of Blidworth (Con)]

I will consider that proposition, take it back to the department and write to the noble Lord.

[Baroness Hamwee (LD)]

My Lords, do the Government recognise the connection between this issue and the points raised by the Question asked by the noble Lord, Lord Young of Cookham? There is a shortage of private rental accommodation, and that goes back to the shortage of housing. The two need to be thought about together, and steps taken that many noble Lords are suggesting.

[Lord Murray of Blidworth (Con)]

The noble Baroness is of course correct.

[Baroness Blower (Lab)]

My Lords, the Minister’s response to my noble friend’s question did not actually mention mould. He mentioned adequacy and quoted the law. However, does he accept—and will he say from the Dispatch Box—that it would never be acceptable for any asylum seeker to be housed in any accommodation in which there was black mould growing, particularly in the light of what we learned recently about the death of a young child in such accommodation?

[Lord Murray of Blidworth (Con)]

Clearly, the adequacy of accommodation is clearly a matter of fact and assessment for each accommodation—so that is the answer I give to that question.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, Amendments 76, 77, 78 and 79, in the name of the noble Baroness, Lady Ludford, enable us to discuss the state threats prevention and investigation measures. As she outlined, Amendment 76 seeks to set a 14-hour limit on the time that someone subject to such a measure has to remain in their residence. Amendment 77 would require the Secretary of State to receive confirmation from the police that prosecution is not realistic, rather than requiring only consultation before a measure is imposed, as outlined in Clause 44(1). These are simple but important amendments, as the noble Baroness, Lady Ludford, outlined, and the Government need to respond to them logically, particularly as they are recommended by the JCHR. In Committee last time, we all referred to the importance of the JCHR recommendations that come before us. It is particularly important that questions such as these are asked because, although we accept that STPIMs are a useful tool to have available, they impose intrusive restrictions on an individual, outside the criminal justice process, as civil measures.

In view of Amendment 76, if there is no time limit, what is acceptable? Are 20 or 21 hours acceptable? As the noble Baroness, Lady Ludford, pointed out, these are essentially curfews on an individual. Although they may be justified—no one is questioning the fact that sometimes they may be necessary—some thought from the Government about what we actually mean by the imposition of time limits or curfews on an individual, and how that might be arrived at, is important. Secondly, should we not always seek to prosecute, as Amendment 77 seeks to do? The police confirming that it is not possible is a real protection, while not compromising national security; again, that is the aim of all of us.

On the more general question of STPIMS, legal aid will be available to individuals but, if they are to challenge effectively, will individuals subject to such an order be fully aware of the reasons why it has been imposed and able to challenge the imposition of such measures? Who will oversee the use of these powers? Can the Minister reassure us that, in making such a decision on application by the Secretary of State, the courts will be given all the information that they need to properly inform their decision, and that they will not be used arbitrarily, out of frustration that a criminal prosecution cannot be pursued? That was a really important point from the noble Baroness, Lady Ludford: this is not a substitute for prosecution but something to be used where, for whatever reason, it is simply not available. But we need some reassurance that criminal prosecution will always be pursued as the first option.

We accept that there is a potential need for such measures, but, given their civil nature and the very real impacts on the liberties of individuals, even if necessary for national security reasons, they demand of us the need to be ever more vigilant when it comes to freedoms and human rights within a democracy. Like the noble Baroness, Lady Ludford, I look forward to the Minister’s response.

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

My Lords, I will first address Amendments 77, 78 and 79. These amendments would create a requirement on the Secretary of State to receive confirmation from the police that there is no realistic chance of prosecuting an individual before imposing a state threats prevention and investigation measure—an STPIM—on an individual under Part 2. It is our view that the current drafting would already achieve that aim. STPIMs are a tool of last resort in cases where prosecution is not possible. It is always the Government’s preference and priority to seek a prosecution against those engaged in foreign power threat activity, and where we can prosecute, we will.

Clause 44 reflects our commitment to prosecution and requires prior consultation with the police, before the imposition of a STPIM notice, in relation to

“whether there is evidence available that could realistically be used for the purposes of prosecuting the individual for an offence”

relating to state threats. The police must consult the relevant prosecuting authority before responding to the Secretary of State. The requirement to consult mirrors that in terrorism prevention and investigation measures—TPIMs—to which the noble Baroness, Lady Ludford, referred. Our experience of the TPIM regime is that, wherever it is apparent in the consultation that there is evidence available that means that a prosecution is feasible, such a prosecution is pursued over the imposition of a TPIM. We expect the same principle to apply in the STPIM context. I hope that that addresses some of the points raised by the noble Lord, Lord Coaker.

Furthermore, as set out in Clause 44(5), while an STPIM is in force, the police must ensure that the investigation of the relevant individual’s conduct is kept under review, consulting the prosecuting authority with a view to pursuing a prosecution if possible. Consultation is all about exploring whether there is available evidence that could realistically be used to prosecute an individual. However, the proposed amendments require the police to confirm that there is no available evidence. Changing the threshold in that way would mean that, in the event that there is limited evidence, but not enough feasibly to prosecute, we would limit our ability to use the STPIM as an alternative measure to protect the UK against individuals involved in state threats activity.

Although I understand the concerns raised by the noble Baroness, Lady Ludford, the consultation is meaningful. In each case where an STPIM is in force, the prospect of prosecuting that individual will be kept under review by the police, consulting the prosecuting authorities as necessary. The outcome of that review will be reported by the police to the Home Secretary, in accordance with their statutory duty. In some sense, that answers the point about oversight raised by the noble Lord, Lord Coaker. Where a prosecution is possible, that will be the action undertaken, rather than the imposition of an STPIM. As I have said already, if we can prosecute, we will.

I turn now to Amendment 76, which seeks to place a maximum limit of 14 hours on the number of hours an individual can be required by the Secretary of State to remain in their residence under the residence measure. It is important to note that, in each STPIM case, the facts will be different, and the specific measures will be decided on a case-by-case basis. Flexibility is therefore key to ensure that the most appropriate suite of measures can be imposed. Protection against interference with the rights of individuals under Article 5 of the European convention, as was referred to by the noble Baroness, is already provided for under the residence measure. Condition D, which must be met to impose an STPIM, outlines that the Secretary of State must reasonably consider that the individual measures applied are necessary to prevent or restrict the individual’s involvement in foreign power threat activity. That covers not just the imposition of the measure but the exact terms of the measure. In the case of the residence measure, that would include the number of hours an individual must reside in their residence. I hope I have therefore addressed the point raised by the noble Lord, Lord Coaker, in relation to the time requirement.

In addition, the court must agree at both the permission hearing and the review hearing to the number of hours, set by the Secretary of State, that the individual must remain in their residence—thus providing a good measure of accountability for the number of hours provided for in the order. The number of hours a person must stay at home will therefore be determined by the facts of the individual case. It is also worth noting that the individual subject to a notice has the right to apply for a variation of measures imposed both in the short term—for example, if there is a reason why they need to be out at different times on a particular day—and generally in the long term.

The noble Lord, Lord Coaker, asked who would oversee the imposition of the measures in this regime. Under Clause 54, there will be an independent reviewer of STPIMs, in the same way that there is a reviewer for TPIMs under the other terrorism legislation.

On whether the individual will know what they are accused of doing, they will have access to special advocates who will be able to access the sensitive information in a manner similar to that for TPIMs. The special advocates will have access to the sensitive information that builds the case against the individual and justifies the measure. There will also be a duty on the Government to share the information, as far as reasonably possible, with the individual themselves. With all these points in mind, the Government cannot accept these amendments and I invite the noble Baroness to withdraw Amendment 76.

[Lord Carlile of Berriew (CB)]

Can the Minister help the Committee by giving us an estimate of the scale of the problem? Do the Government expect a number of STPIMs which is roughly the same as the number of TPIMs in existence at present or do they expect more than or fewer than a handful? An assessment must have been made of these numbers.

[Lord Murray of Blidworth (Con)]

I am afraid I do not have that information to hand. My conjecture would be that it is fewer, but I will confirm the position and write to the noble Lord.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for that reply. I also thank the noble Lord, Lord Coaker, for calling these amendments simple but important. I am grateful for his support.

On Amendment 77, I note the Minister’s assurance that he believes that the current drafting would achieve the aim of pursuing the possibility of prosecution, but obviously that incorporates not only a static but a dynamic possibility. I think the fear of the JCHR is that the wording, certainly in Clause 44(5), does not really imply any ongoing investigative mission, as it were. Saying “If we can prosecute, we will” has to mean that a certain re-evaluation takes place. But that is not all that Clause 44(5) says. It says that the chief officer of police must

“secure that the investigation of the individual’s conduct … is kept under review”.

It does not actually require any investigation, or any periodic investigation, so I am not really persuaded, despite the Minister’s reassurances, that that sense of a dynamic possibility of keeping the potential for prosecution under if not a permanent but certainly a periodic review is incorporated into the drafting of the Bill. We may come back to this at a later stage, but I am not entirely persuaded by the Minister.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I do not have anything more to add other than to say that we support Amendments 80 and 81. The noble Lord, Lord Anderson, summed it up in his closing comments: the current Independent Reviewer of Terrorism Legislation, Jonathan Hall, has been consulted on this amendment and agrees that it would be a suitable way forward. I look forward to the Minister’s response.

[Lord Murray of Blidworth (Con)]

My Lords, Amendments 80 and 81 propose having an independent reviewer to cover more than Part 2 of the Bill. The Government have committed to consider this idea in the other place, and the speech made by the noble Lord, Lord Anderson, was compelling on this point.

The Government have been considering whether extending the oversight of the independent reviewer could be done in a way that does not duplicate or unhelpfully interfere with the responsibilities and functions of the existing oversight mechanisms governing both the UK intelligence agencies and the police. For example, we must consider how extending oversight of the Bill would interact with the Investigatory Powers Commissioner’s role in overseeing the powers referred to in Clause 27. Should we decide to extend oversight of the Bill beyond Part 2, it is important that we do not create any confusion or uncertainty as to the appropriate reviewer.

It is proposed that Part 4 of the Bill should be reviewed by the Independent Reviewer of Terrorism Legislation. Of course, Part 4 contains measures to freeze civil damages awarded to claimants seen as representing a real risk of using their award to fund acts of terror, and measures to restrict access to civil legal aid for convicted terrorists. As a result, these matters are already in the IRTL’s remit to review. An explicit commitment to oversight of Part 4 of the Bill is therefore unnecessary and would duplicate the Independent Reviewer of Terrorism Legislation’s existing discretion to review and report on terrorism-related legislation.

As a point of clarification on a point made by the noble Lord, Lord Anderson, the Government are not extending the purview of the Independent Reviewer of Terrorism Legislation to cover Part 2 of the Bill—rather, they are creating a new independent reviewer role entirely.

With these points in mind, while the Government cannot accept these amendments, we are committed to making a decision on extending oversight of the Bill at the next stage of its passage.

[Lord Purvis of Tweed (LD)]

With a glance at the impact assessment on this part of the Bill, the Government’s estimate is that there will be between four and 12 cases a year for the independent reviewer. Just for the sake of efficiency alone, it would make sense to extend a structure which is already in existence and operating well, rather than creating a new system which would have potentially a miniscule role—especially since the impact assessment says that it would be down to the discretion of the reviewer

“how much time they spend reviewing the STPIMs”.

[Lord Murray of Blidworth (Con)]

Obviously, the noble Lord makes a valid point, and I am sure it will feed into the department’s consideration about extending the oversight.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister, but it may assist the Committee to know what will happen next. It is welcome that the department will be thinking about this, but it would be good to have a bit of a steer as to what the Government intend to do before Report.

[Lord Murray of Blidworth (Con)]

We invite the proposers of the amendments not to press them; further information will follow.

[Baroness Ludford (LD)]

Well—my noble friend Lord Purvis of Tweed asked the obvious question of what happens next, and we got a rather obscure answer. I hope the noble Lord, Lord Anderson, will be able to tease out a little more about what the next steps might be.

I thought the Minister started on a rather encouraging note. I thought he was going to say, “Yes, Amendment 81 is jolly good, and we accept it”. I would imagine that it has been the subject of discussions and exchanges and so on, but the promise that came from the beginning of the Minister’s remarks was not really realised, or not realised at all.

In breathless anticipation of what the noble Lord, Lord Anderson, is going to say—I hope that I am not taking his name in vain, as it were—I beg leave to withdraw Amendment 80. I hope, however, that this is not the end of the discussion on Amendment 81.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

The noble Lord, Lord Wallace, has raised an interesting but complicated question to answer. He has given various examples of the complications involved in trying to identify the owners of companies. From my own experience as a part company owner and director, I did not know who the shareholders in my own company were, once the ownership was traced back. This is a very difficult and involved question, and I look forward to the Minister’s response.

[Lord Murray of Blidworth (Con)]

I thank both noble Lords for their contributions; it is indeed a complex issue. Amendment 83 seeks to provide that, where an entity receives 25% or more of its revenue from a foreign power, it can be considered as subject to control from a foreign power and eligible to be specified under the enhanced tier of the scheme. I commend the spirit with which this amendment has been made. The noble Lord’s aim of increasing transparency supports the objectives of the scheme, but it is vital that we strike the balance of proportionality.

It is important that we maintain a distinction between funding, or donations, and control. However, I hope the noble Lord will be reassured that where, in practice, funding does result in a foreign power directing or controlling the activities of the entity, a condition for foreign power control already given in Schedule 13 will still be met. Where this condition is met, it will be possible to specify the entity under the enhanced tier.

We recognise that it is imperative that this scheme maintains the flexibility to adapt, should a foreign power seek to take action to evade the scheme’s scope and requirements. Part 3 of Schedule 13 provides this necessary flexibility by allowing for the conditions of control to be amended for permitted purposes by regulation. For these reasons, the Government cannot accept the proposed amendment and invite its withdrawal.

[Lord Wallace of Saltaire (LD)]

My Lords, I foresee yet another bout of litigation over who really owns what as this is implemented. We have seen a fair amount of argument among different Russian oligarchs about who owns what, and what political influence may or may not have been involved, in the London courts. This is one of the many ways in which the Bill, in its current form, is not proportionate. This is, again, why we need to move slowly, carefully and cautiously as we complete our scrutiny of the Bill.

We must not put too much of a burden on the individual business man and woman, or the individual customer, but, at the same time, we must do our utmost to ensure that foreign money, as it comes into British politics and British political life, is identified as vigorously as possible. Incidentally, I am not convinced that the Bill does that, as I said in an earlier session. That is one of the ways in which the Bill needs to be strengthened rather than weakened. This will, I hope, form part of the discussions that we will have off the Floor, during the process in which the Government will produce their promised policy statement, and before we come to Report. I beg leave to withdraw.

Windrush Lessons Learned Review: Implementation of Recommendations

Lord Murray of Blidworth Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, is not the treatment of the Windrush generation one of the most shameful episodes in our post-war history? These people helped rebuild Britain, and their reward was that many were wrongly detained and threatened with deportation; 83 people were actually deported. Why have only 1,300 out of an estimated 15,000 been compensated so far? Why are the Government now going to implement only some of Wendy Williams’s recommendations, not all as originally promised? Can the Minister update us on the figure? Is it still eight out of 30? Have the recommendations for a migrants’ commissioner, and to extend the powers of the Independent Chief Inspector of Borders and Immigration, been dropped? We still have no anti-slavery commissioner appointed. Wendy Williams demanded cultural change, but on the 75th anniversary of the Windrush generation, we are still a long way from it. Would it not be the final betrayal of that generation if there were not the real change that Wendy Williams demanded?

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

I agree with the noble Lord that the injustices of Windrush were an outrage. Clearly and unfortunately, it was Governments of all complexions who allowed that scandal to unfold. The noble Lord asked me whether the Windrush compensation scheme is failing. The Government—and I, as the supervising Minister for the Windrush compensation scheme—are very clear that we must compensate members of the Windrush generation and their families for the losses and impacts they suffered as a result of the scandal. We believe that we have made significant progress, having now offered a total of more than £59.58 million in compensation. As to the question about recommendations, the noble Lord knows that the Government will not comment on leaks, and I do not propose to do so today.

[Baroness Benjamin (LD)]

My Lords, this year there should be jubilant celebrations of the 75th anniversary of Windrush, a symbol of Caribbean people coming to Britain with good intentions. However, because of the Windrush scandal, one can be forgiven for feeling anxious, nervous and worried when we hear reports regarding government plans to go back on Wendy Williams’s recommendations. In my recent letter to the Prime Minister, I stated that this would be disrespectful and perceived as wicked, vindictive and heartless. This is a matter of national pride and we must be determined to right the wrongs, injustice and hurt. Compensation should be accelerated before more claimants die. Once again, therefore, will the Government categorically assure me, this House and the Caribbean community that these rumours are not true and that they intend to fulfil all their pledges?

[Lord Murray of Blidworth (Con)]

As I observed to the noble Lord a moment ago, the Government do not comment on leaks, and I do not propose to do so now. On the separate question that the noble Baroness asked, I entirely agree that there should be a fantastic celebration of the 75th anniversary of Windrush, and the successes of the Windrush compensation scheme and the Windrush scheme in granting status are factors to feed into that great celebration. On the final aspect of her question—the speeding up of payments under the Windrush compensation scheme—I am glad to report that we have issued final decisions in more than 59% of the claims received and have concluded more than 43% of claims. In July 2021, we also published a redesigned primary claim form and refreshed casework guidance with the aim of reducing the time taken to process claims and improving people’s experiences of applying to the scheme. We are recruiting additional caseworkers, directing resources to maximise performance and refining processes so that cases can progress as quickly as possible. We have delivered on the promise to recruit and post at least 120 EO-level casework resources by the spring of 2022, and we will continue to recruit additional resources.

[Baroness Berridge (Con)]

My Lords, I am grateful to my noble friend for outlining that next year we will celebrate the wonderful arrival 75 years ago of those who have given so much to this country, many of whom paid with their lives fighting for it. However, celebrations cost money. Can my noble friend outline what money the Government will allocate centrally and for communities to be able to celebrate this?

[Lord Murray of Blidworth (Con)]

I do not have that information to hand; I will need to find that out and write to the noble Baroness.

[Baroness Blackstone (Lab)]

My Lords, the Minister’s Answer to my noble friend on the Front Bench on the meeting of claims for compensation was a bit complacent. Can he explain why the number of claims that were dealt with last year was much lower than in the previous year? There must be some reason for that. Can he also comment on the remarks made by Wendy Williams in her report on the delays to the training of officials dealing with the Windrush scandal? Why has this been delayed and what steps is he taking as the Minister responsible for dealing with this problem?

[Lord Murray of Blidworth (Con)]

On the reduction, I hope the answer is demonstrated by the following statistics. Some 4,558 claims have been received by the Windrush compensation scheme, for which, as I said a moment ago, the total amount of compensation offered has been £59.58 million. There are 2,699 claims with final decisions—that is 59%—and 1,967 concluded claims: those are claims that received a final payment, a nil offer that has not been challenged in 60 days or rejected on eligibility, or claims that have been withdrawn. As regards the work in progress, there are 1,859 claims, and preliminary offers have been made in 666 of those. Only 522 claims are more than a year old.

[Lord Cormack (Con)]

My Lords, will my noble friend accept that we are getting rather fed up with the tardiness of the payment of compensation, whether it is to postmasters, those who had bad blood products or this very important group, the Windrush people? Will he therefore not be complacent about saying that there are 41% still to be dealt with but rather say that the 41% will be dealt with well before the end of this year?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

It is certainly the department’s intention, and I thank my noble friend for that question. The department is making real efforts to reduce the work in progress and the time taken to consider claims, taking the steps I have already outlined by recruiting further caseworkers and accelerating the process. Indeed, we have a method of expediting claims, appropriating exceptional cases where it is necessary to consider a claim out of date order: for example, where the individual has a critical or life-shortening illness which means that there is a substantial risk that they would not receive the outcome of their claim if it were considered in date order.

[The Lord Bishop of Chelmsford]

My Lords, many of the recommendations in the Windrush Lessons Learned Review also have implications for how the UK should steer its current refugee and asylum policy: recommendation 9 concerning the creation of a migrants’ commissioner, recommendation 19 regarding direct contact with migrants and recommendation 25 requiring consideration of risks to vulnerable groups or individuals. What assurances can the Minister provide that there will not be a repeat of the mistakes made with the Windrush generation, this time with asylum seekers and refugees, and can he comment on any progress made on recommendation 9 and the appointment of a migrants’ commissioner?

[Lord Murray of Blidworth (Con)]

I thank the right reverend Prelate for that question. As to the last point, I am afraid I cannot comment on the leaks in the Guardian, but on the first point, I can reassure the House that we are certainly very alive to the issues that the right reverend Prelate raises. The Windrush generation was rightly identified as British and had a right to be in this country. That remains separate and distinct from the enforcement policies on individuals who have no right to reside in the United Kingdom. It is only right that the Government do what they can to protect our borders and enforce the Immigration Rules. Successive Governments have done this, in line with public expectations. Wendy Williams’s Windrush Lessons Learned Review is not about being soft in our objective to protect the country or our borders. The Windrush scandal was about the appalling treatment of those who had a perfect right to be in this country. They were not here illegally. It is only right that the Government do what they can to protect our borders and enforce the Immigration Rules.

[Lord Paddick (LD)]

My Lords, as my noble friend Lady Benjamin said—her tremendous work in this area should be acknowledged in this House—the way in which the Windrush generation has been treated is disgraceful, with some dying before the wrongs they were subjected to could be corrected or compensated. Without commenting on leaks, does the Minister agree that a failure to implement all the recommendations of the independent Williams review would add insult to injury for the African-Caribbean community?

[Lord Murray of Blidworth (Con)]

Tempting though it is to travel down that line of answer proffered by the noble Lord, Lord Paddick, I am afraid that would amount to commenting on the leaks, and I do not propose to do so.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was not planning to speak on this fairly narrow amendment. The noble Lord, Lord Marks, made all the points relative to the amendment itself. However, it is worth just endorsing his closing comments about the view of the Opposition and Liberal Democrat Benches that the Government are paying too little attention to the recommendations of the JCHR. It appears to be a hurdle to overcome to get over those recommendations. This is a good example; many of the recommendations made are very minor. I just wanted to endorse the point the noble Lord made about the importance of this committee’s work.

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

I thank the noble Lords, Lord Marks and Lord Ponsonby, for their remarks. Turning first to the subsidiary point in respect of the importance of the reports of the JCHR, I can certainly assure all in the House that the JCHR reports are taken very seriously by the Government and all the recommendations are appropriately considered. I can say that, as a human rights lawyer myself, I fully appreciate the importance of the human rights considerations and the very valuable work done by the committee. I hope my remarks go some way to assuage the concerns that were outlined.

I turn now to the substantive amendment tabled by the noble Baroness, Lady Ludford. This clause replaces Section 8(4) of the Official Secrets Act 1920 and in so doing makes it more explicit that the exclusion of the public from proceedings must be necessary in the interests of national security. The Government consider that the approach taken in the drafting is appropriate given the highly sensitive nature of the material that may be required to be considered during court proceedings in relation to offences under the Bill. It is important to note that the decision to exclude the public from proceedings is taken by the court on application by the Executive, who are well placed to set out the risk to the courts. We consider that the judiciary is already well placed to assess the impact of any such decision on the administration of justice.

The words that this amendment seeks to add are, with respect, unnecessary. In England and Wales, for example, the Criminal Procedure Rules 2020 would apply in such proceedings which already have as their overriding objective that criminal cases are dealt with justly. Therefore, those rules require a court to have regard to the importance of dealing with criminal cases in public and the overriding interests of the administration of justice when determining whether to exclude the public from any part of proceedings. It is clearly right that this clause notes and provides the court with a clear basis upon which to exclude the public on grounds of national security, and that is all that this clause does. For those reasons, the Government cannot therefore accept the proposed amendment and I therefore invite the noble Lord to withdraw it.

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

My Lords, I shall look carefully at the Minister’s response. For the time being I will certainly seek leave to withdraw the amendment. There may be room for further discussion—there may not. I accept that the overriding objective applies to criminal cases and to dealing with cases justly, but as regards whether it is not sensible that that should take primacy by a special mention in the Bill I am unconvinced at the moment. However, I will read what the noble Lord had to say. I therefore beg leave to withdraw the amendment.

--- Later in debate ---

This dilemma cannot just be put in the “too difficult” pile; it cannot be put somewhere we can all reflect on it “at some point”. We somehow have to find a way to try to reconcile this conflict which gives certainty to the legislature, while ensuring that all of us can maintain the confidence we have in our democracy that serious wrongdoing can be exposed and simultaneously protecting national security—that should not be beyond us. That is why the amendment tabled by the noble Lord, Lord Marks, although not correct in every detail, is important, and why my amendment has been brought forward: to try to tease out, from the Government and this Chamber, people’s views on how we take this forward in a way which commands general support.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for a very interesting debate on a topic of considerable public importance. These amendments concern the introduction of a public interest defence to the offences in the Bill. Amendment 75 adds a PID to Clauses 1 to 5. I am very grateful to those who have contributed to this short debate, including the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Carlile and Lord Faulks, with whom I find myself in agreement, particularly on their concerns about the practical consequences of this amendment, as well as on the concerns raised by the noble Lord, Lord Marks, on the application of Article 10 of the European convention. I therefore greatly welcome the display of expertise from all sides of the House.

It would be helpful for me to start by talking briefly about the genesis of these offences and the interaction with the Law Commission recommendation for a public interest defence. In this amendment, there is a significant risk of conflating the various Official Secrets Acts, so I will take a little time to clarify those Acts, because it is vital that we are precise in this context. Four Official Secrets Acts are in force: the 1911, 1920 and 1939 Acts, which deal with espionage, and the 1989 Act, which deals with unauthorised disclosures, often described as leaks.

The Law Commission, in its 2020 report, considered all four Official Secrets Acts. Starting with the 1989 Act, the Law Commission recommended the inclusion of a public interest defence, not in isolation but rather as part of a package of reforms to that Act. It is important to stress that the Bill does not seek to reform the 1989 Act, which remains in place as the relevant legislation to govern unauthorised disclosures of specified material; for example, in relation to security and intelligence, defence or international relations. For that reason, I can answer the very fair question from the noble Lord, Lord Coaker, as to whether this was a relevant or irrelevant issue with the clear indication that it is not relevant to this amendment. When asked about the omission of the reform of the 1989 Act from the Bill, the Law Commission made clear, in its oral evidence to the Commons committee for the Bill, that it did not expect one single piece of legislation to address all aspects of its report.

I turn to the 1911 to 1939 Acts, which this Bill replaces. The Law Commission made a number of recommendations with respect to reform of those espionage laws, but crucially did not recommend the inclusion of a public interest offence. Again, during its oral evidence to the Committee for this Bill in the other place, the Law Commission was clear that, in its view, the requirements of the offences take them outside the realm of leaks and into the realm of espionage. It is worth also noting, as the noble Baroness, Lady Manningham-Buller, correctly observed to the Committee, that within the security services themselves there are elaborate whistleblowing mechanisms already in place for the declaration of unlawfulness, as she has already outlined.

Let me put it very clearly on record that the offences in Clauses 1 to 5 of this Bill are not intended to have a chilling effect on legitimate whistleblowing. As I have said, the Committee has this evening already heard first-hand of experience of the mechanisms in respect of whistleblowing in the security services. The provisions in this Bill are about espionage, and I am sure that the Committee would strongly agree that espionage against the United Kingdom can never be in the public interest, although I appreciate that that is not what noble Lords are implying by tabling this amendment.

I am pleased to confirm that the Government are, of course, willing to continue to discuss the proper protections for legitimate activity, as the Committee has expressed and the noble Lord, Lord Purvis, in particular, has requested. The noble Lord, Lord Coaker, asked for further details on the Government’s efforts to keep whistleblowing guidance under continuing review, and I can confirm that that work is ongoing. No doubt it can be discussed further, in a similar way.

[Lord Coaker (Lab)]

I am sorry to interrupt, but just on the point about the guidance, where the Minister has confirmed that the Government are undertaking work to update it, what is the process and the timeline for that?

[Lord Murray of Blidworth (Con)]

I am afraid that I am unaware of the precise timeline—I will find out. If the matter is not discussed in relation to the Kramer amendment, obviously I shall write to the noble Lord in respect of it.

I turn to the offences themselves, and the aspects that we consider move them away from capturing legitimate activity. For the Clause 1 offence of obtaining or disclosing protected information, the activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. It is right that we are able to prosecute disclosures of protected information when it is clear that a person intended to harm the UK and was working for or on behalf of, or with the intention to benefit, a foreign power. Legitimate whistleblowing would not meet all the requirements of this offence.

The Clause 2 offence of obtaining or disclosing trade secrets is designed to tackle the illicit disclosure and acquisition of sensitive commercial information amounting to a trade secret for, on behalf of, or for the benefit of a foreign power. For the offence to be committed, the activity has to be unauthorised, and the person has to know, or ought reasonably to know, that their conduct is unauthorised. Someone who disclosed information in the course of using lawful and appropriate whistleblowing routes would not be conducting unauthorised activity.

The Clause 3 offence criminalises assisting foreign intelligence services. The offence can be committed in one of two ways: either by conduct of any kind that a person intends will materially assist a foreign intelligence service, or by conduct that it is reasonably possible may materially assist a foreign intelligence service and where the person knows, or ought reasonably to know, that that is the case. The material assistance must be material assistance in carrying out UK-related activities. The expression “UK-related activities” means activities taking place either inside the United Kingdom, or those taking place outside the United Kingdom which are prejudicial to the safety or interests of the United Kingdom. Legitimate whistleblowing activity should not meet the threshold for an offence under Clause 3, such as intending to materially assist a foreign intelligence service in carrying out covert operations in the United Kingdom.

I move on to the offences in Clauses 4 and 5, which criminalise harmful activity in and around prohibited places. It is right that we are able to prosecute relevant activity around the United Kingdom’s most sensitive sites where it is clear that such activity has been carried out to harm the United Kingdom. Activity carried out to harm the United Kingdom in this way cannot be in the public interest.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

The Minister knows that, on previous days in Committee, we have discussed the issue of how the interests of the United Kingdom are defined and how broad that is. Whom does he believe should be the final arbiter in defining what is in the interests of the country and in the public interest?

[Lord Murray of Blidworth (Con)]

The noble Lord’s question as I understand it is whether the decision about public interest is one for the police or for the prosecutor because, in reality, that is where the decisions would lie. Ultimately, if both those bodies were satisfied and a prosecution were brought, the issue would be one for the court.

It is our position that a public interest defence is neither necessary nor appropriate. However, it is important to point out that, even if the Government were to accept the case that the offences risked criminalising such legitimate activity, a public interest defence would not be an appropriate way to address this issue. As crafted, the proposed defence puts the onus on the Government to prove “beyond reasonable doubt” that the defence did not apply. This defence would therefore act as an open invitation to those who seek to conduct espionage against the United Kingdom, and disproving this defence would likely require the disclosure of further sensitive material and only serve to compound the original harm.

The consequence of this is that those who intend to harm the United Kingdom will be able to exploit this defence to continue conducting harmful activities in the knowledge of the prosecution difficulties that would be faced by the authorities. This would limit the effectiveness of the legislation in enhancing our ability to deter and disrupt harmful activity.

Amendment 120B, proposed by the noble Lord, Lord Coaker, would require the Minister to publish an assessment of the potential merits of introducing a public interest defence. As I have just laid out, the Government have extensively considered the merits, or otherwise, of such a defence, and this renders a review after the Bill’s passage unnecessary, for the reasons I have already set out. Thus, for all these reasons, the Government cannot accept the tabled amendments.

[Lord Purvis of Tweed (LD)]

Before the Minister sits down, I am conscious that, as the noble Baroness, Lady Manningham-Buller, mentioned, we will come on to the whistleblowing aspect, but the Minister was at pains to quote liberally from the Law Commission’s evidence to the Public Bill Committee in the Commons on this. I of course have read the evidence, as others will have done. I was interested when it came to the disclosure of information element, because Professor Penney Lewis told the Public Bill Committee:

“Indeed, we recommended a mechanism for authorised disclosures to an independent statutory commissioner, which would have appropriate investigatory powers to look into, for example, disclosures that might be embarrassing to the Government.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]


Why are we not legislating for that in the Bill? The Minister seemed to have accepted everything that the Law Commission had said, but not this.

[Lord Murray of Blidworth (Con)]

It is clear, in the view of the Government, that those issues relate to the provisions found in the 1989 Act, which are not addressed in the Bill. While I note that evidence, it is not relevant to this amendment. As I have already said, I therefore invite the noble Lord to withdraw his amendment.

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

My Lords, I will be asking for leave to withdraw this amendment, not on the basis that it will go away but on the basis that, first, there is room for further discussion, even though only a chink has opened up in what the noble Lord, Lord Murray, has had to say; and, secondly, on the basis that I accept that the amendment is not perfectly drafted and we would like to take further advice and further consider a number of matters in the drafting of the Bill. What I will say, very briefly if I can, about the amendment and the response of the Minister and the other speeches we have heard, is that this question has to be taken in the context of the introduction of the Bill.

There can be no doubt that the Bill will manifestly broaden the ambit of national security and protection legislation: first, because it is targeted not at individuals who have an obligation to the state but generally at citizens; and, secondly, in the way that the Bill is drafted. We talked about this a great deal last week, when we noted the inclusion of expressions such as, “know or reasonably ought to have known”, “conduct that it is reasonably possible may materially assist a foreign intelligence service” and all those peripheral expressions. Indeed, we note the use of the phrase “prejudicial to the interests of the United Kingdom” when we know “the interests of the United Kingdom” are determined by what the Government of the day believe those interests to be. All those broaden the ambit of these criminal offences.

I completely agree with the noble Lord, Lord Coaker, that this issue is not going to go away. All the briefings we have had from journalists and organisations tell us how important a public interest defence is. I completely take on board the point made by the noble Baroness, Lady Manningham-Buller, repeated by the noble Lord, Lord Faulks, and by the Minister, that Article 10 on freedom of expression is a qualified right. Of course, people of legal distinction can disagree, but it is entirely wrong to suggest that the Law Commission does not contain people of legal distinction.

If it were translated into a consideration of this Bill, because there is no material distinction on the disclosure points, I feel confident that the Law Commission would come out with the same recommendation as it did in 2020. We also have the recommendation of the Joint Committee on Human Rights in relation to a public interest defence. It is very difficult to argue that the fact that it is a qualified right under Article 10 does not mean that it would apply. Of course, we, the Law Commission and the Joint Committee on Human Rights have read the whole of Article 10 and understand the qualification, but the overwhelming point is the phrase

“necessary in a democratic society”.

Everything else is subject to that in the qualification.

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.

--- Later in debate ---

[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.

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[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.

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[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.