Police Forces: Financial Stability

Lord Paddick Excerpts

Wednesday 12th September 2018 Lords Chamber

[Baroness Williams of Trafford]

To address the last question first, both the Policing Minister and the Home Secretary recognise the demands on the police. They have said it before and my right honourable friend the Policing Minister said it again today. Not only is the picture of crime changing, but the police have had to deal—so bravely—with the various terrorist attacks we have had over the past year. When it comes to understanding demand, I have said before that my right honourable friend the Policing Minister visited all 43 forces in England and Wales leading up to the comprehensive settlement for 2018-19, which provided that £460 million increase. Looking forward to the next spending review, he stated in December last year that he would revisit plans to change the funding formula at the time of the next spending review. I have outlined the 2018 settlement, but in 2019-20 he will seek to maintain the protection of the broadly flat police grant, alongside the same flexibility of the precept that happened this year.

[Lord Paddick (LD)]

My Lords, the NAO report finds that central government funding for the police service has fallen by 30% in real terms since 2010-11, resulting between March 2010 and March 2018 in a 15% reduction in police officers, a 40% reduction in PCSOs and a 21% reduction in other police staff. Despite what the Minister has just said, the NAO says the Government have,

“no national picture of what forces need”.

Do the Government agree with the Metropolitan Police Commissioner, who said yesterday:

“This is not a service that needs reform, this is a service that needs support and needs resources … the NAO report shows this”?


Will the Minister finally admit that the Government can no longer argue that the police service has sufficient resources to deliver an effective service? The NAO says that the Government do not have a clue whether or not the police service has sufficient resources.

Brexit: Europol

Lord Paddick Excerpts

Tuesday 11th September 2018 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord is absolutely right that this facility continues to operate. To that end, the Commission has been very clear that it wants to continue co-operation on internal security, including extradition and Europol. I also point out that, at the recent press conference on 31 August, Michel Barnier recognised the progress in our discussions on security. Our focus now should be on trying to define an ambitious partnership.

[Lord Paddick (LD)]

My Lords, a European arrest warrant has been issued for the two Russians suspected of being responsible for the Wiltshire poisonings. But Norway and Iceland, both of which are in the EU single market and the Schengen area, have been waiting for 13 years to be part of the European arrest warrant—and they are still waiting because they are not members of the EU. What chance does the UK have of retaining the EAW if we are outside the EU, the single market and the Schengen area?

[Baroness Williams of Trafford]

The noble Lord points out the issue of the two Russians. Of course, as well as an EAW an Interpol red notice was issued for those two people. The UK has made a significant contribution to Europol. It is important to note that in 2017 the UK was the highest contributor of data relating to serious and organised crime to Europol’s analysis project. We are also in the top three member states that contribute intelligence each day to different databases in Europol, and the UK is driving or co-driving almost half of all EU law enforcement projects in the fight against serious and organised crime. That is a very good reason why we should continue.

Crime (Overseas Production Orders) Bill [HL]

Lord Paddick Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 10th September 2018 Grand Committee

[Lord Rosser]

In the other direction, would an order made in an American court against a British provider that is not complied with lead to contempt proceedings in a United States court, and how would that court enforce it against a British provider?

[Lord Paddick (LD)]

While we are waiting, am I right in thinking that in the recent Facebook case it was not that the service provider did not want to provide the information that would be of use to UK law enforcement but that domestic law in America did not allow it to provide that information, and that in the overwhelming majority of cases to which this legislation would apply we anticipate that the service provider would be more than keen to provide the data, provided it can be done lawfully, and that this mechanism provides the lawful means of doing that?

[Baroness Williams of Trafford]

I think the noble Lord is probably quite right. It goes back to what I was saying at the beginning of my response. If there were doubts about compliance, or that began to become apparent, MLA would be the process that we would revert to if this was not forthcoming. Ditto, the American side would probably institute the MLA process to ensure compliance.

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Moved by

[Lord Paddick]

39: After Clause 16, insert the following new Clause—
“Priority
In the event of any conflict between this Act and the Data Protection Act 2018 (“the DPA”) or the General Data Protection Regulation 2018 (“the GDPR”), the provisions of the DPA or the GDPR shall prevail.”

[Lord Paddick]

My Lords, Amendment 39 is in my name and that of my noble friend Lady Hamwee. I am grateful for the briefing from techUK, which raises concerns about how this legislation might affect a deal between the EU and the UK on adequacy should the UK leave the European Union. We are unsure how to address those concerns and this amendment is very unlikely to be the means by which to do so, but at this stage it is a means of raising them. It is a bit of a Second Reading amendment, if noble Lords get my drift.

Throughout our debates it has been emphasised that the sole purpose of this legislation is to enable UK law enforcement agencies to find a faster legal means to secure data held overseas that may contain vital evidence in serious criminal cases being prosecuted in the UK than the current mutual legal assistance treaty process. Data handled in the UK is subject to the protections of the Data Protection Act 2018 and the EU general data protection regulations. Indeed, the Data Protection Act ensures that the GDPR continues to have effect, even if the UK does leave the EU.

Throughout our debates on this legislation we have expressed our concerns that the designated international co-operation arrangements that enable overseas production orders to have effect in the target state will give as much right to overseas law enforcement agencies to demand data from UK service providers as the right this legislation will give UK law enforcement agencies to demand data from a service provider in a foreign state. Those foreign states, such as the United States of America, are not bound by the Data Protection Act or the GDPR.

For a third country to exchange data with the EU it must persuade the EU that it has adequate protections for personal data equivalent to or exceeding the standards that EU countries have to comply with under the GDPR. Indeed, EU states are not bound by EU regulation relating to data used for national security purposes, but third-party states are. For the first time, if we leave the EU, the EU will scrutinise the way we handle data in relation to national security because we will become a third-party country, involving more scrutiny than currently takes place. I think that is called “taking back control”. Whether in relation to national security or not—we have already debated the weaker safeguards proposed in relation to terrorism offences—such arrangements could result in personal data from an EU country and shared with a UK service provider being passed to a law enforcement agency in a state that falls short of the protections provided by the GDPR.

In summary, our concern is that, by entering into international co-operation agreements enabling overseas law enforcement agencies directly to access personal data held in the UK by UK service providers, sensitive personal data will be accessed by overseas law enforcement agencies whose standards fall below those set out in the Data Protection Act and the GDPR, thereby jeopardising the EU granting the UK an adequacy certificate. Could the Minister explain what discussions have taken place with the EU on this issue and how the UK’s adequacy status will be protected? I beg to move.

[Lord Kennedy of Southwark]

My Lords, I fully support the amendment moved by the noble Lord. I recall our debates in the Chamber on the GDPR and how important it is to get the adequacy certificate to make sure that we are compliant with all these regulations, and we cannot put that at risk in subsequent legislation. I am looking for the Minister to address that point. The noble Lord has raised a very valid point. We need to get this right before this legislation reaches the statute book.

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[Baroness Hamwee]

My Lords, as the Minister is responding, it seems that this falls into a similar category to a point we raised last week about how one balances the different public interests involved. I think the Minister is saying that there is a public interest in the application of the Data Protection Act and the GDPR, which takes us back to the clause about assessing public interest. The Minister is nodding at that. Perhaps, before Report, we should go back and look at how that might apply in this context as well.

[Lord Paddick]

My Lords, I am grateful to the Minister, and to other noble Lords, for their contributions. In essence, my question is: if the EU has to assess whether we are safeguarding its data, yet we are entering into agreements to give away that data to another country, will the EU need to be satisfied that that other country also has standards of data protection equivalent to or better than the GDPR? If not, we might be putting the adequacy judgments at risk. That is the essence of the amendment. I would be grateful for an opportunity to discuss this further with the Minister in the meetings between now and Report but, at this stage, I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

Crime (Overseas Production Orders) Bill [HL]

Lord Paddick Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Grand Committee

Moved by

[Lord Paddick]

3: Clause 1, page 1, line 19, at end insert—
“( ) The Secretary of State may not make regulations designating an international co-operation arrangement with a state which is a party to or participates in it which has not abolished the death penalty unless the agreement provides that it will apply only if the other party or participant has given assurances that the death penalty will not be imposed in any case in which or in whose preparation electronic data obtained under this Act has been used.”

[Lord Paddick (LD)]

My Lords, in moving Amendment 3 in my name and that of my noble friend Lady Hamwee, I will speak to Amendments 4 and 7 in our names. I will also mention very briefly Amendment 8 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark.

Before I launch into the meat of the amendment, I hope the noble Lord, Lord Anderson of Ipswich, does not mind me mentioning that, on the way into the Moses Room, he said that he enjoyed reading my amendments. I am extremely grateful for the extensive work carried out by my noble friend Lady Hamwee with regard to these amendments—if you know what I mean.

As we have heard, the purpose of the Bill is to allow UK law enforcement agencies to more easily obtain electronic evidence when it is sought outside the UK. Of course, evidence so secured would be subject to safeguards in the UK, but presumably the countries that enter into international co-operation agreements with the UK—a prerequisite for the operation of overseas production orders—will expect their own law enforcement agencies to be able to apply through their own domestic courts for equivalent orders that would allow them to seek stored electronic data directly from service providers based in the UK; the reciprocal agreement. Amendments 3 and 4 seek to probe how legal and human rights concerns over privacy and the security of personal data will be addressed and the issue of such evidence potentially resulting in the death penalty being passed on a subject. Amendment 3 requires that the Secretary of State may not make regulations entering into an international co-operation agreement in relation to states where the death penalty can be imposed unless the agreement restricts access to UK-held data to cases where an assurance has been given that the death penalty will not be imposed.

Article 2 of the European Convention on Human Rights—together with Protocol 13, of which the UK is a signatory—provides for the total abolition of the death penalty. My recollection of a meeting with the Minister on this very issue is that the UK would not hand over evidence in the knowledge that it would result in the possibility of the suspect being executed. However, since that meeting, noble Lords will recall the case of two former British citizens accused of being members of an ISIS cell. In a leaked letter, the Home Secretary apparently agreed to co-operate with the United States by sharing evidence but said that he would not seek a death penalty assurance. In an apparently totally inconsistent statement, he went on to say that,

“it is the long-held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK government’s stance on the global abolition of the death penalty”.

We now appear to be in a situation where government policy is to ensure that evidence does not lead to the suspect potentially facing the death penalty and to encourage the global abolition of the death penalty, except when the Home Secretary decides otherwise. How can the Government advocate the abolition of the death penalty globally on a case-by-case basis? Amendment 3 seeks to put into the Bill that an international co-operation agreement cannot be entered into with a state unless there is an agreement that the sharing of evidence would not lead to the imposition of the death penalty.

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[Baroness Williams of Trafford]

I understand the point that the noble Lord is making. I, not least, look forward to the discussion that we are going to have.

[Lord Paddick]

My Lords, I am very grateful for the comments of all noble Lords on this group of amendments. I do not want to prolong the agony; I accept that the Bill is about outgoing requests but in order for outgoing requests to be complied with, there would be an expectation by the foreign state that a similar application to the UK would be met. We are potentially talking about UK service providers providing evidence to a foreign state that would enable that state to carry out the death penalty on a suspect. Having agreements based on trust and mutual respect, rather than a legally binding agreement, where if there are differences of opinion about what particular terms mean there would be some form of dispute resolution—no more reassurance than that—while the IP Act 2016 could impose restrictions, but might not, all seems rather vague and general. When we are talking about someone’s life potentially being ended, we would seek more concrete reassurances that evidence provided by the UK is not going to lead to that.

I understand that the intention is to have an agreement with the United States of America as a whole. However, bearing in mind that the death penalty is an issue in some states but not others, and that other agreements would be on a case-by-case basis—presumably on the basis of the human rights record of the states that the agreement was entered into with—it seems odd that a blanket agreement could be entered into with the USA when there is that crucial difference between states as to whether the death penalty could be carried out. Obviously, we are in Committee, which is about understanding concerns and the Government’s position. We need to further develop that in meetings and on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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Moved by

[Lord Paddick]

9: Clause 2, page 2, line 25, after “person” insert “exercising law enforcement functions”

[Lord Paddick]

My Lords, the amendment is in my name and that of my noble friend Lady Hamwee. I shall speak also to Amendment 10.

Clause 2 lists appropriate officers who can make an application for an overseas production order. The list clearly indicates what this legislation is about: securing evidence to present before a court. It is not, for example, a search for intelligence; intelligence officers are not listed. Clause 2 is a list of law enforcement officers and, as such, subsection (1)(a)(vii) and (b)(v), which allow the Secretary of State by regulation to specify others as appropriate officers, should be restricted to specified law enforcement officers and not simply be left open to any person of a description specified in regulations. Our amendments would place such a restriction on the regulating powers of the Secretary of State. I beg to move.

[Lord Kennedy of Southwark]

My Lords, the noble Lord raises an important point. In response, I am sure that the noble Baroness will explain to us why the Government deem it necessary to take this wider power and not restrict it, as the noble Lord, Lord Paddick, has sought to do, to officers from wherever who are actually enforcing law enforcement functions. On the face of it this seems a very sensible amendment, and I look forward to hearing why the Government think they need this wider power in this context.

[Baroness Williams of Trafford]

My Lords, I hope that this amendment will not require any further meetings or probing on Report. The Bill provides that an appropriate officer is able to apply for an overseas production order where an indictable offence has been committed, where proceedings in relation to that indictable offence have been instituted or investigated, or where the order is sought for the purpose of terrorist investigations. Therefore, the clause is already limited to officers who are exercising law enforcement functions. In fact, the clause already makes clear that where a listed appropriate officer has functions other than for law enforcement purposes, it is only where the appropriate officer is exercising functions in relation to the investigation or prosecution of criminal conduct that they may apply for an overseas production order. For example, a person appointed by the FCA can conduct both civil and criminal investigations and the clause ensures that they can apply for an overseas production order only in connection with criminal investigations or prosecutions. I hope that that provides reassurance.

[Lord Paddick]

My Lords, I am very grateful for that explanation provided by the Minister. The meeting of 20 minutes we have scheduled before Report will not be further extended as a result of this amendment and I beg leave to withdraw it.

Amendment 9 withdrawn.

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Moved by

[Lord Paddick]

11: Clause 3, page 3, line 32, at end insert “but not bulk data”

[Lord Paddick]

My Lords, Amendment 11 is in my name and that of my noble friend Lady Hamwee. We debated long and hard in this House about when and how law enforcement agencies and the security services can secure authority to access bulk data. The Investigatory Powers Act 2016—not to be confused with the investigatory powers Act 2018, which exists only on BBC1 on Sunday evenings—contains some safeguards against state access to bulk data and it is essential that those safeguards are not circumvented by the Bill. The Government will no doubt say that accessing bulk data held overseas is not the purpose of the Bill, but what other reassurances can the Minister give that the powers under the Bill will not be used inappropriately by law enforcement agencies? Amendment 11 seeks to achieve this by amending Clause 3(2), changing the definition of “electronic data” to exclude bulk data. I beg to move.

[Baroness Williams of Trafford]

Again, I hope that I can provide clarity on the noble Lord’s amendment. When applying for an overseas production order an officer must specify or describe the electronic data sought under an order. In addition, the judge must be satisfied that a number of requirements are met before making an order under Clause 4. These include that the judge must be satisfied that the person against whom the order is sought has possession or control of all or part of the data specified in the application; that the data requested is likely to be of substantial value; and that it is in the public interest for all or part of the data to be produced. It is very difficult to see how a judge could be satisfied that these requirements are met if they were considering an application for an order seeking bulk data.

The reason is that bulk data requests are for sets of information, often about a large number of individuals who may or may not be known to law enforcement agencies. The Bill has been drafted to require appropriate officers to consider carefully what data they are targeting—which, of course, is not the case with bulk data—and where the information is stored, in order to help with the investigation and prosecution of serious crime, in addition to demonstrating that the data will be of substantial value to the investigation and in the public interest. It feels to me that there are sufficient safeguards in place, because of the processes I have outlined, and I hope that the noble Lord will feel happy to withdraw the amendment.

[Lord Paddick]

My Lords, I am grateful for the Minister’s explanation. I am not sure that it entirely satisfies us about the potential for misuse of the legislation, but we will reflect on what she said and perhaps discuss it with her before Report.

[Lord Rosser]

If there is any doubt in this matter, as I understand it from the briefing that we had from the House of Lords Library, the UK’s Deputy National Security Adviser, giving testimony to the US House of Representatives’ Judiciary Committee in June 2017, said that the UK Government were “in full agreement” with the US Department of Justice that a UK-US bilateral data sharing agreement should limit access to targeted orders for data and not bulk access to data.

[Baroness Williams of Trafford]

I thank the noble Lord because that underlines my point.

[Lord Paddick]

If that is the case, there is no reason why it should not be stated in the Bill.

[Baroness Williams of Trafford]

I am sorry, but I think I need to intervene. All sorts of things could be stated in the Bill, but given its purpose, I do not think it is necessary. I think that the noble Lord, Lord Rosser, pointed that out.

[Lord Paddick]

With the greatest respect to the noble Lord, Lord Rosser, he is talking about a bilateral agreement with United States of America and not a global reassurance given by every country with which we might enter into an agreement. Therefore, my concerns remain but, at this stage, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

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Moved by

[Lord Paddick]

19: Clause 4, page 5, line 19, at end insert—
“( ) The judge must be satisfied that the electronic data specified or described in the application is not confidential journalistic data.”

[Lord Paddick]

My Lords, in moving Amendment 19 in my name and that of my noble friend Lady Hamwee, I will speak to our Amendments 33 and 34 in this group.

Journalistic data of any kind is not excepted electronic data as set out in Clause 3, despite representations made by media organisations that it should be. Instead, under Clause 12 the application for an overseas production order, if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data, must be made on notice. Confidential journalistic data consists of data created or acquired for the purposes of journalism and in circumstances that give rise to an obligation of confidence that continues or is held subject to a restriction on disclosure or an obligation of secrecy.

This begs the question: how does the judge make a judgment about whether there are reasonable grounds for believing that confidential journalistic material is involved? Does the judge take the word of the applicant? If the judge determines that confidential journalistic material is involved, how will notice be served on the parties concerned and how will those parties make representations? To probe these issues, Amendment 19 inserts the requirement that:

“The judge must be satisfied that the electronic data specified or described in the application is not confidential journalistic data”.


Clause 13 prohibits the overseas parties from concealing, destroying, altering or disposing of the data, or disclosing the application to anyone else, once they are given notice of the application. What sanction can be imposed for failing to comply? Can it be contempt of court, bearing in mind that at that stage the judge has made no order, only given notice that an application for an order has been made?

Amendment 33 provides that Clause 12(1) should specify that the notice should be served on the data controller and the data subject specifically, as well as anyone else the judge considers necessary. Amendment 34 amends Clause 12(4) to specify that notices should be served on a person R, referred to in Clause 12(3): that is, the person who receives electronic data from another person who intended it to be used for journalistic purposes. I beg to move Amendment 19.

[Lord Rosser]

I referred to the general issue that is the subject of the amendments spoken to by the noble Lord, Lord Paddick, when I spoke to Amendment 8. We share the concerns expressed by the noble Lord, subject to what the Minister may have to say in response, about the possible difficulties or issues that might arise.

[Baroness Williams of Trafford]

I thank the noble Lord, Lord Paddick, for his points and the noble Lord, Lord Rosser, for his intervention. The effect of Amendment 19 would be to exclude confidential journalistic material from the scope of an application and order. I should first point out that Clause 4 reflects the position in the PACE Act 1984. Journalistic material can already be sought under Schedule 1 to PACE through special procedure, and under Schedule 5 to the Terrorism Act 2000, when it is held by a company or person based in the UK. The Bill extends this to circumstances where the data is held by an entity based outside the UK and where a relevant international arrangement is in place.

I do not think that we should introduce in the Bill a difference between material that can be obtained—subject of course to appropriate requirements and safeguards—when it is held in the UK, as opposed to being held by an entity based on the country with which we have entered into an agreement. I should also stress that similar standards are set out in the Bill as already exist in domestic legislation, and that the term “reasonable grounds for believing” is readily used by our court system. Reasonable belief requires more than just a guess or a hunch. It will require the judge, marshalling all the facts before them, to come to an assessment on whether the information sought does or does not contain this type of data. It is not the first time that that standard has been used in legislation, and of course it will not be the last. Where confidential journalistic material is sought, the Bill requires that such applications can only be made on notice. That means that anyone put on notice, which can and may include the journalist whose data might be sought, has the opportunity to make representations to the court as to whether it is appropriate for the data to be obtained.

The effect of Amendment 33 as drafted would be that an application for an overseas production order that included confidential journalistic material had to be made on notice to a data controller and the data subject. I understand the sentiment behind the amendment but I do not agree that it is required, for two reasons. First, the rules of court will set out the process by which a judge can ensure that anyone affected by the order is notified of any given case. Consideration of notice by the judge relating to such a request is left to his or her discretion to allow for the circumstances where notice to a data controller, data subject or anyone else is deemed appropriate by the judge when granting an overseas production order. I think giving the judge discretion to determine which is appropriate in any given case is the right approach.

Secondly—this is a point that I have made before and will make again—we are providing in the Bill the means to serve an order on a company based outside the UK in a country with which we have a relevant agreement, in the same way as is currently the case with a company based in the UK. In those cases the respondent and any other person affected by the order would ordinarily be given notice and therefore the opportunity to make representations, unless under rules of court the judge is satisfied that there are good reasons for not doing so—for example, because of the risk of prejudice to the investigation. We are proposing that the same should apply to overseas production orders.

The intention of Clause 12 is to require an application for an overseas production order to be made on notice where there are reasonable grounds for believing that the electronic data sought consists of, or includes, confidential journalistic data. The effect of the clause as drafted is that notice should be served on the respondent—that is, the person who would be required to produce the data if the order is made. In most cases, this would be a service provider rather than the customer on whose behalf the data is stored. However, a requirement to give notice to the respondent under Clause 12(1) does not preclude the judge considering the application from exercising his or her own discretion under rules of court. Under rules of court they may require notice to be given to other persons who may be affected by an order requiring the production of confidential journalistic material, including a person who in his or her professional capacity has acquired that data. It will be a matter for the judge’s discretion, but he or she is likely to insist on notice being given unless the applicant can demonstrate that doing so would prejudice the investigation—for example, where the journalist himself or herself is the subject of the investigation or prosecution.

An example of where it might not be appropriate is where there is a hacking investigation and the journalist might actually be the subject of an inquiry. The judge may decide that putting someone on notice could potentially harm the investigation or risk the dissipation of the material. It is the Government’s intention, however, to ensure that where an application relates to confidential journalistic data, notice can and should be served on journalists and on whoever the judge deems appropriate given the circumstances of the application. The PACE Act 1984, for example, requires service to be made on the respondent only, otherwise notice requirements are set out in court rules.

The noble Lord, Lord Paddick, made an important point about sanctions to comply. It is difficult to construct a proportionate regime to ensure nondisclosure prior to an order being made and, in practice, law enforcement would not apply for an order where there was an unacceptable risk of damaging disclosure. I ask noble Lords not to press their amendments and I shall consider their comments before Report, if that is amenable to them.

[Lord Paddick]

I am very grateful to the Minister for her explanation and her offer to consider further the issues that the noble Lord, Lord Rosser, and I have raised in connection with these issues. Obviously, Amendment 19 is a probing amendment, a mechanism by which to debate these issues, but with the promise of further discussions to come before Report—perhaps the Minister could also establish whether the Government have consulted the National Union of Journalists on these issues—I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Rendition of UK Citizens

Lord Paddick Excerpts

Tuesday 24th July 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I reiterate that we oppose the death penalty in all circumstances. The Crime (Overseas Production Orders) Bill is about outgoing requests. It gives UK law enforcement authorities the power to request electronic data stored abroad where an international arrangement exists for use in UK investigations and court cases. We will ensure that any future international agreement is consistent with our long-standing policy of opposing the death penalty.

Perhaps I may also comment on the change of approach. We have not changed our approach. I refer noble Lords to the Overseas Security and Justice Assistance Guidance, which incidentally is long-standing. Part a) says:

“Written assurances should be sought before agreeing to the provision of assistance that anyone found guilty would not face the death penalty”.


Part b) reads:

“Where no assurances are forthcoming or where there are strong reasons not to seek assurances, the case should automatically be deemed ‘High Risk’ and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance”.

[Lord Paddick (LD)]

My Lords, we are told that the UK did not want to try these people in the UK because we were concerned that we did not have enough evidence. Clearly, the Americans also thought that they did not have enough evidence—otherwise, why would they seek assistance from us? If UK and US pooled intelligence is sufficient to convict the accused, the Home Secretary could have avoided this political and moral dilemma by asking the US for its intelligence and agreeing to try the accused in the UK. Why did he not do so? Did the Home Secretary and the Prime Minister decide that the death penalty should be an option?

My party’s position is clear: we oppose the death penalty in all circumstances in accordance with the European Convention on Human Rights Article 2 and Protocol 13, to which the UK is a signatory. We take a principled position on this issue. Can the Minister please clarify the Government’s position?

[Baroness Williams of Trafford]

In addition to what I have just said, the UK’s position is that we will bring the perpetrators of very serious crimes to justice and we will work with our international partners to do so.

Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018

Lord Paddick Excerpts

Tuesday 24th July 2018 Lords Chamber

It has been very helpful to be given by officials a copy of the Statement made by the Minister of State for Immigration on 23 July, which, as I understand it, is the one that talks about, effectively, pilot arrangements, and a copy of a press release dealing with that. I do not think, although I am happy to be put right if I am wrong, that that was necessarily made clear when the matter was discussed in the Commons, which I think was on or around 16 July. Perhaps some of the issues that were raised in the Commons might not have been raised, had the intentions as far as a pilot is concerned been clear. On the basis that there is to be a pilot to see how well or otherwise it works, I hope that there will be an opportunity, perhaps through a further statutory instrument, for a proper discussion about how it has worked because there are potential concerns about this process simply because of the vast number of people involved, the time it could take, the possibility of people being wrongly rejected and matters of that kind. There are concerns about it. A pilot will be helpful if it draws attention to some of the difficulties and gives a chance for those to be put right before it is extended. I am seeking an assurance that there will be a discussion in this House about how the pilot has gone before the scheme is extended to other groups.

[Lord Paddick (LD)]

My Lords, I, too, thank the Minister for explaining these regulations to the House. I am not as concerned as the noble Lord, Lord Rosser, about whether this is a pilot as my understanding is that there will be a period of three years from now for EU citizens to register and overcome any of the problems that may arise during the pilot scheme, so I am slightly more relaxed on that front. Can the Minister confirm that the continued operation of these regulations will be subject to satisfactory negotiations being concluded with the European Union and each of the 27 remaining EU countries, which will decide on a country-by-country basis what conditions they will impose on UK citizens’ residence in their countries if we leave the European Union? As the Minister will know, some European Union countries already require UK workers to register while others do not.

Can the Minister confirm that the database of photographs of EU citizens applying for leave to remain in the UK will be kept not just for the purpose of initial identification to ensure that the applicant matches their national identity document, but in perpetuity? Can she also confirm that every employer in the United Kingdom is expected to carry out a check of every prospective employee against Home Office databases to ensure that the individual has the right to work in the UK, whether they are a citizen of the UK, the EU or any other country?

The Minister has already confirmed that only non-EU members of EU citizens’ families will be required to supply a set of fingerprints along with a photograph. If I understood her correctly, this is to ensure that they have not been involved in crime or that in other ways it would not be desirable for them to remain in the UK. Again, will these fingerprints be retained on a database after they have been checked against, for example, criminal records? If the answer to both those questions— about photographs and fingerprints—is yes, are this Government changing their position on having a national identity card database, because this sounds like the beginning of that process?

The regulations are about EU citizens’ status in the UK if we leave the European Union. I therefore hope that the Minister will accept that the following question is within the scope of this debate. Can she confirm whether I correctly understood from the briefing by officials that she kindly arranged that there will be free movement of EU citizens into the Republic of Ireland, even if the UK leaves the EU: that there will be no immigration checks on anyone either at the border between the Republic of Ireland and Northern Ireland or at any crossing point between Northern Ireland and the rest of the United Kingdom?

Can she therefore confirm that there will be no way that the UK could control inward immigration from the EU via the Republic of Ireland even if we leave the EU, that the only immigration controls will be those carried out by banks, landlords, the NHS and employers, and that, therefore, an unlimited number of EU nationals could live indefinitely in the UK if they came through the Republic of Ireland?

Can she also confirm that the UK’s border security will be totally reliant on the checks carried out by Republic of Ireland immigration officials who, in any event, will be unable to question any EU citizen as to their reason for entry under free movement rules? Presumably, the Irish Government have always been happy to share responsibility for guarding the EU’s external borders, but what discussions have the UK Government had with the Irish Government about their immigration officials effectively policing the UK border from the Republic?

[Baroness Williams of Trafford]

I thank both noble Lords for their questions. The first question from the noble Lord, Lord Rosser, was about an evaluation of the private beta phase, or the pilot phase, which I can confirm will run from 28 August until October. On amendments to extend the scheme any further, we will provide further information in due course about our plans for the phased rollout of the EU settlement scheme later this year so that, in line with the draft withdrawal agreement, it is fully open by 30 March next year. Those plans will absolutely reflect the experience of the pilot phase and the learning that we draw from those who choose to apply under the scheme during that phase.

There will not be a formal report back, but any extension of the scheme will be subject to parliamentary consideration of the required changes to the Immigration Rules for the scheme, further to those for the private beta phase laid on 20 July. We will explain clearly any changes and the reasons for making them at that point.

--- Later in debate ---

[Baroness Williams of Trafford]

I understand that any changes at all in the Immigration Rules for the scheme will be laid out, and why they will be laid out. We will need new Immigration Rules to extend the pilot to other groups, which is what I think the noble Lord was asking.

[Lord Paddick]

My Lords, I am now slightly confused. I am grateful to the noble Baroness for giving way. Presumably, if the pilot works perfectly with this pilot group of EU citizens, it can then be rolled out to cover all EU citizens without any further regulation. Is that the case?

[Baroness Williams of Trafford]

My Lords, I understand that this is a specific pilot scheme for a specific purpose, so it would then have to come back for extension to other groups. It will be the same thing, but for other groups. I hope that that explains it clearly. It will come back.

On the question of the receipt and retention of the photograph, there are three reasons why we need to receive and retain them. First, as part of the basic checks required to protect the scheme from abuse, we will compare the photograph with the one in the applicant’s identity document to confirm that they are one and the same person. Secondly, by keeping a record of the photograph, we can help secure the person’s identity and the status we have granted them against any attempt by another person to use those in a fraudulent application. Thirdly, the photograph will be contained in the secure digital status they receive under the scheme and will thereby provide a convenient means by which they can, for example, evidence their right to work to an employer. I will say a bit more about that shortly.

The noble Lord, Lord Rosser, asked about the photograph not meeting requirements and being chucked out. There will be a lot of guidance on how to take a photograph that matches and meets the requirements. If an applicant submits a photograph that is not sufficient, the Home Office will proactively contact them in a positive way—which I think the noble Lord was also driving at. I will underline that we are looking for a reason to grant this status, not refuse it. If there are any problems of any sort with an application, we will contact the applicant to help them resolve the matter, rather than reject it. I think that that was at the heart of the noble Lord’s question.

The noble Lord also asked about costs to the applicant. The agreement reached with the EU allows a fee of up to the cost of an equivalent document for UK nationals. We have used the cost of a passport of £75.50 as a point of reference. A fee of £65 to apply for status under the EU settlement scheme is in line with the current costs of obtaining permanent residence documentation, and it will contribute to the overall costs of the system. The fee for a child under 16 will be half that: £32.50. Where an applicant is granted pre-settled status under the scheme, from April 2019 there will be no fee when they apply for settled status. Applications will be free of charge for those who hold valid permanent residence documentation or valid indefinite leave to enter or remain, or for the children in local authority care. To charge a lower fee than the current fee that EU citizens are charged for permanent residence documentation would disadvantage those who have already paid the £65 fee to require that documentation to confer their exercise of free movement rights. To charge a higher fee would disadvantage those who have followed our advice since the referendum that they did not generally need to apply for EU documentation.

The noble Lord, Lord Rosser, asked about the consultation. We have been engaging with stakeholders throughout the process, including the user groups we have established, involving EU citizens’ representatives, embassies, employers, and others. These groups are helping us to develop the scheme and get it right. We have engaged with EU citizens at every stage of the development process and will continue to do so. We will also continue to expand our communications to ensure that EU citizens are aware of the scheme, how it will operate and what information they will need to provide, and so that they are reassured that they will have plenty of time in which to apply for their new UK immigration status.

Immigration Detention: Shaw Review

Lord Paddick Excerpts

Tuesday 24th July 2018 Lords Chamber

[Baroness Williams of Trafford]

I have a feeling that we do not release the number of staff that we have in our detention estate, but I will double check. If we do I will get those figures to the noble Lord.

[Lord Paddick (LD)]

My Lords, with the greatest respect, we should be looking for outcomes, not outputs. We should be looking for results, not activity. So why is the number of people being detained for more than six months still increasing? I accept what the noble Lord, Lord Deben, said about this potentially being an increasing problem, but can the Minister tell the House what percentage of people are being detained, as opposed to those who are not? Is that percentage increasing or decreasing?

ONS New Crime Statistics

Lord Paddick Excerpts

Friday 20th July 2018 Lords Chamber

Asked by

[Lord Paddick]

To ask Her Majesty’s Government what is their assessment of the statistics published by the Home Office today which show an 11% increase in recorded crime in the year ending March 2018.

[Lord Paddick (LD)]

My Lords, I beg leave to ask a Question of which I have given private notice.

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

My Lords, the Office for National Statistics has pointed to improvements to police recording and increased willingness of victims to report certain crimes such as sexual offences and domestic abuse as important factors in explaining trends in police recorded crime. However, there has been a genuine increase in serious violent crimes, so we have announced new laws to address them. The serious violence strategy represents a step change in the way that we respond.

[Lord Paddick]

My Lords, overall crime is increasing and violent crime, as the Minister has just said, is increasing at an alarming rate of more than 10%. The crime survey does not reflect this because of the underrepresentation of young men, who are predominantly the victims of violent crime. Nor are murder and manslaughter offences reflected in it. Crimes that are more complex to investigate, such as rape, are an increasing proportion of the total, requiring more police resources to investigate them. Meanwhile, the proportion of offences resulting in a court appearance fell from 11% to 9%, the lowest since comparable records began in 2015. Despite government claims to the contrary, central government funding for core policing continues to fall in real terms, with the number of police officers at the lowest level since comparable records began in 1996. At the same time, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services said in its State of Policing report of 2017:

“On the whole, the inspections we have carried out during the past year show that the effectiveness and efficiency of the police service are improving”.


When will the Government accept that the continued, damaging, real-terms cuts to core policing budgets are helping to drive up crime, and when will they reverse them?

[Baroness Williams of Trafford]

My Lords, I thank the noble Lord for his Question. I say at the outset that the Government understand that police demand is changing and increasingly complex, as the noble Lord said. That is why, after the Police Minister spoke to all forces in England and Wales, we provided a comprehensive funding settlement which will increase total investment in the police system by more than £460 million in 2018-19. That includes £50 million for counterterrorism, £130 million for national priorities and £280 million in force funding for increases in council tax precept income. He will have also heard the Home Secretary saying that he understands what the demands on the police have been, particularly over the last year with all they have had to deal with, and that he will prioritise this in the next spending round. However, the overall picture is that public investment in policing has gone up from £11.9 billion in 2015-16 to £13 billion in 2018-19. The workforce of the police has remained broadly stable over the past year. I add that many forces have indicated that they either plan to protect the number of police officers or will in fact recruit further in the coming year.

Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018

Lord Paddick Excerpts

Wednesday 18th July 2018 Grand Committee

[Lord Judge (CB)]

My Lords, until last August, I was for two years the Chief Surveillance Commissioner—an office that no longer exists under the current legislation. I will echo one or two, but not all, of the points that have been made so far. If I may say so, I thought that the Explanatory Memorandum for this proposal in relation to juveniles was thoroughly inadequate and, if it had been adequate, would have said a good deal to allay the concerns that have been expressed today. I did not think that the letter from the Minister allayed those concerns—it did not address them, it seemed to me.

There is in fact an extremely careful system for supervising, organising and taking responsibility for all CHIS. There are very few juvenile CHIS, for all the reasons that have been given; I do not think the figures have been kept, but I can say this. What may not be apparent to many people in the Committee today is that each police force is examined and inspected by independent inspectors, answerable to a judicial figure, and the inspections cover every form of intrusive investigation that has gone on and all issues relating to the use of covert human intelligence. I can say from my own experience—it is not a state secret—that in relation to any CHIS activity involving juveniles, the inspectors pay particular attention to see that the issues of welfare and so on have been properly addressed. All this could have been explained and made available to the Secondary Legislation Scrutiny Committee, which would then have formed whatever view it thought appropriate.

There is, however—I could go on for some time about this—one point that needs consideration if the Government, decide to follow the suggestion made by the noble Lord, Lord Haskel. Within the surveillance process, in relation to authorisation for intrusive surveillance, such an order, however made—even by the chief constable himself or herself—does not take effect until it has been approved by a judicial commissioner and when the notice of that decision has been given to the person who granted the authorisation. It might just be worth giving some thought to using that particular additional safeguard when we are considering the rare occasions when a juvenile CHIS is being used.

[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining these orders, and other noble Lords for their contributions. There are some issues around the Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 that I would like clarification on before we get on to the major issue of the use of juvenile covert human intelligence sources. I therefore ask the Committee for a few moments to deal with those other issues.

I understand that this instrument brings into force the three revised codes of practice regarding the functions carried out under RIPA 2000, and that these need to be updated, not least because of the Investigatory Powers Act 2016 and the additional safeguards it introduced. One of the phrases in the Explanatory Memorandum—changes to “cover current practice”—is a little worrying, as it stands. I hope the Minister can reassure the Committee that the codes of practice have not been altered simply because law enforcement and intelligence agencies have changed how they do things. Surely the codes of practice are there to ensure compliance with government-defined best practice, not the other way around.

--- Later in debate ---

[Baroness Jones of Moulsecoomb]

I absolutely did not mean to imply that. I understand how they are recruited: I did not mean that.

[Lord Paddick]

I am very grateful to the noble Baroness, but I think it is important that that misinterpretation is not put on it.

As the noble and learned Lord, Lord Judge, said, yes, the Explanatory Memorandum is clearly inadequate, as is the letter from the Minister. It is almost contemptible in failing to address these issues. Clearly, it would be different if the Grand Committee had known in advance about these independent inspections of the use of CHISs, and the particular importance that inspectors pay to juvenile CHISs; but the fact remains that these inspections are post-event. These are not procedures that could prevent a juvenile being put into a dangerous situation beforehand.

The managing of informants, or CHISs, as they are now called, is one of the most sensitive areas of policing, fraught with danger—and that is just for adults. Using juveniles as CHISs is an order of magnitude more dangerous, as other noble Lords have said. Young people, through their immaturity and inexperience, are far more at risk when being employed effectively as spies, as the noble Baroness said, in criminal enterprises. They are far more likely to make mistakes and to blow their cover than mature and experienced adults. Law enforcement and other public agencies have always recognised this, and that is why, in the police service, the extraordinary step—and it is extraordinary—of employing a juvenile CHIS has to be authorised by an assistant chief constable, a commander or a more senior officer.

Until now, the authority has lasted one month. Clearly, the longer the CHIS is undercover, the greater the chance of being exposed and the greater the potential psychological strain and therefore risk of harm the young person might be subjected to. For that to be extended to four months without an officer of such seniority being asked to renew that authority is putting the young person in grave danger, in my personal and professional judgment. These decisions were always taken with the greatest care and consideration, and it was ensured that the case for engaging and renewing was taken by a very senior officer, several levels above the investigating officer, and therefore with objectivity and independence, crucial to ensure the safety of that young person.

The world is a much more dangerous place than it was when I was a police officer, let alone a detective chief inspector. As the noble Lord, Lord Trefgarne, has said, the Explanatory Memorandum talks about child exploitation, terrorism and gang and drug crime involving more and more young people. There is a real danger that juvenile CHISs could become victims of child sexual exploitation, or the discipline meted out to members of gangs by other members of the same gang, including sexual assault, rape and being stabbed in the leg. These levels of violence among juveniles were rare in my time as a police officer but are now far more common.

At a time when the threat to CHISs is increasing and the threat to an immature and inexperienced CHIS is even greater, the Government are seeking to reduce the safeguards for these vulnerable young people. That is unacceptable. I do not want it on my conscience that a juvenile CHIS has been killed or seriously injured as a result of relaxing the necessary safeguards that are in place at this time. I seriously ask the Government to rethink this provision, not least because the consultation on these changes does not appear to have included organisations or specialists in the welfare of children such as those who work with gangs, ex-gang members, or child psychologists.

Given more notice and time and at a different point in the parliamentary timetable, I would have prayed against this provision and divided the House. It is not too late for the Government to withdraw this order, at least until the Minister has satisfied herself that appropriate advice has been taken on the potential risks associated with these changes.

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

My Lords, I thank the Minister for presenting the order to the Grand Committee. I also thank my noble friend Lord Haskel for moving his Motion and, in doing so, highlighting the issues of concern that have been raised by the members of the Secondary Legislation Scrutiny Committee in its 35th report published on 12 July. They have highlighted an issue of very serious concern for all members of the Grand Committee this afternoon.

The Grand Committee and the House are grateful for the work done by the committee, chaired by the noble Lord, Lord Trefgarne, in scrutinising every instrument that is laid before the Parliament. That is a very important job, getting into the nuts and bolts of what these orders are doing. It is able to get at what a particular instrument does and, through its engagement with Ministers and through its reports, bring matters to the attention of the House.

Covert surveillance is an important tool for our law enforcement agencies, the police and security services. It is a tool that can be used to provide evidence, to detect and prevent crime and, of course, to bring the perpetrators of crime to justice. It is a very important tool to keep us all safe. It is necessary, as there may be no other way to gather the intelligence needed. Having said that, we have to have proper codes of practice in place. When intelligence-gathering involves young people under the age of 18—people who are legally children, as we have heard—that is of serious concern to Parliament and to the Grand Committee today. How are their rights protected? Are adequate protections in place to take care of their physical and mental well-being? Is care taken, and what risk assessments are undertaken to ensure that that is the case?

As we have heard, the order before the Grand Committee today proposes to extend the period for which a person under the age of 18 can be used as a covert human intelligence source—what a name—from one month to four months. Terms such as “administrative convenience” from the Home Office do nothing to reassure members of the Committee that the Government have got the balance right here.

What should be of paramount importance is the welfare of the child who is being used as a covert intelligence source. Does the Minister accept that to seek to extend the term from one month to four months, you need to have clear reasons and to better explain what is being done, demonstrating that the welfare of the child is properly taken into account, other than it will be administratively convenient for the department? Further, can she tell the Committee how the Government have satisfied themselves that these proposals satisfy Section 1 of the Children Act 1989 and the UN Convention on the Rights of the Child, which the UK ratified in 1991? Could she also say something about how the safeguarding and protection of these children is delivered while involving them as covert human intelligence sources? I accept the point that the noble Lord, Lord Paddick, made on individual children and the wider community, but how we balance that out is very important.

--- Later in debate ---

[Baroness Williams of Trafford]

I thank all noble Lords who have taken part in this debate, in particular the noble Lord, Lord Haskel, who introduced some of the committee’s concerns. I apologise for the quite unsatisfactory Explanatory Memorandum, about which the noble and learned Lord, Lord Judge, and to a certain extent the noble Lord, Lord Paddick, gave very good explanations and far more of the context, which is a learning point for me and for the Home Office. I repeat the point that all noble Lords made about the welfare of the child being paramount. The noble Lord, Lord Haskel, said that he is a parent; I am too. It is the most important thing that we are discussing.

I will start by addressing the Regulation of Investigatory Powers (Juveniles) Order 2018, which the Secondary Legislation Scrutiny Committee expressed concern about and which has, in the main, been the subject of interventions today. Over the past 18 months, at the Security Minister’s instigation, the Government have been conducting a review with operational partners of the covert human intelligence source, or CHIS, authorisation framework to consider whether it is working as effectively as it could. This included consideration of the Regulation of Investigatory Powers (Juveniles) Order 2000 which put in place a set of enhanced safeguards that apply specifically to the authorisation of a CHIS under the age of 18, demonstrating that the ability to authorise people under the age of 18 as a CHIS is not something new. That has become clear in the course of discussions.

While investigators might wish to avoid the use of young people as a CHIS, we must recognise that, unfortunately, some juveniles are involved in serious crimes both as perpetrators and as victims. Consequently, young people might have unique access to information that is important in preventing and prosecuting gang violence, terrorism and child sexual exploitation offences. Noble Lords will undoubtedly be aware of reporting in the media recently—this was mentioned in the debate—on the escalating county lines phenomenon which, along with the associated violence, drug dealing and exploitation, has a devastating impact on young people, vulnerable adults and, of course on the communities they affect.

The existing juvenile CHIS regime allows for the use of a juvenile CHIS to be authorised for just one month at a time as compared to a 12-month authorisation for those over the age of 18. This can make their deployment more difficult to manage, which in turn can be unhelpful both to them and to law enforcement. It can also act as a deterrent to law enforcement seeking CHIS authorisation in some circumstances where immediate results might not be obtained during a one-month period, even if a longer, carefully managed deployment could provide a significant operational dividend.

To reduce the pressure to obtain immediate results from such an authorisation while still ensuring the protection of the juvenile, we are increasing the maximum length of a juvenile CHIS authorisation from one month to four months, requiring an authorisation to be reviewed at least monthly which will enable these deployments to be conducted in a more measured way. I will go into more detail on that in a second. Additionally, we have strengthened the protections around the appropriate adult required to be present at all meetings between the source and the public authority tasking them, and we are keeping the existing prohibition on all sources aged under 16 being tasked in relation to a parent or person with parental responsibility, which reflects the increasing independence of young people between the ages of 16 and 18 and that parental authority reduces accordingly—the point about 15 going on 25. I hope that reassures noble Lords that these changes are not about administrative convenience.

We think that these amendments will improve the operational effectiveness of the juvenile CHIS regime, while strengthening the protections for young people in this area and the safety and welfare of young people undertaking this important and dangerous role. This remains absolutely paramount.

[Lord Paddick]

Can the Minister explain how deployments are more difficult to manage if they are authorised for only one month? Presumably the deployment can continue and there is a review by an assistant chief constable or a commander to renew the authorisation, without interfering with the juvenile or the deployment. In those circumstances there would be no pressure to produce results within a short space of time if all we are saying is that the authority can be renewed by this more senior officer at the end of one month on an ongoing monthly basis, but it is very important that somebody of that seniority—that removed from the investigation—objectively decides that that authorisation should continue.

[Baroness Williams of Trafford]

For the convenience of the Committee, I will go through the process. Authorisations for the juvenile CHIS should be granted at an enhanced level, which is set out in annexe A of the code of practice. For example, for a police force this would be by an assistant chief constable, in comparison with the adult CHIS, where an authorisation would be considered by a superintendent. The code of practice requires that, where possible, the authorising officer who grants the authorisation should be responsible for considering subsequent reviews and renewals. That is how each month the whole thing is revisited to continue for a further month, up to four months. But all these processes need to be documented and considered by the handler, the controller and the authorising officer within the public authority and will be fully open to inspection by the Investigatory Powers Commissioner as well. This creates, in our view, a comprehensive framework of safeguards which ensure that the conduct is necessary and proportionate to protect the interests of that young person. With regard to increasing the maximum, they may not be able to finish off what they started within just one month and hence a monthly review, up to four months, is in place. The noble Lord is looking slightly confused so I will let him intervene.

--- Later in debate ---

[Lord Paddick]

Can the Minister confirm that the monthly review would be undertaken by an assistant chief constable or commander?

[Baroness Williams of Trafford]

Yes.

[Lord Paddick]

I still do not understand the difference between the current system, where that authorisation would have to be renewed by a commander or assistant chief constable each month, and a four-month authorisation that is reviewed every month.

[Baroness Williams of Trafford]

Under the current system it is only one month, whereas under the new system it would be up to four months but with a review every single month—and, yes, by the same senior officer.

[Baroness Williams of Trafford]

I think I understand it. I apologise to noble Lords. The current system is limited to one month. The new system would be up to four months, but with a review every month.

[Lord Paddick]

I am very grateful to the Minister. At the moment, an assistant chief constable or a commander can authorise a juvenile CHIS to be deployed for a month. At the end of that month there can be an application from the handler to the senior officer to renew the authorisation so that it has the effect of continuing for another month, and so forth, for as long as it is necessary. The new system that the noble Baroness is suggesting is a four-month authorisation with a review by the commander or assistant chief constable at the end of each month. What is the difference between the two systems?

--- Later in debate ---

[Lord Judge]

If you have to have a review every month, why do you not conduct a renewal? What is the difference between the review and the renewal in those circumstances? That is the heart of it.

[Lord Paddick]

Perhaps I can assist. The handler decides that the CHIS needs to be in a gang for three months. The handler will know that, under the current system, at the end of each month, for three months, they will have to go back to the commander or assistant chief constable to renew the authorisation. What is the problem with that system that is overcome by the changes being suggested?

[Baroness Williams of Trafford]

I am very grateful to the noble and learned Lord, Lord Judge, because he seems to put things so clearly. I get the noble Lord’s point. Perhaps I may think about it and write to noble Lords, because I now understand exactly the point that the noble Lord is making—thanks to the noble and learned Lord, Lord Judge.

I will now move on to the appropriate adult point. We have strengthened the protections around the appropriate adult required to be present at all meetings between the source and the public authority tasking them. I think that I have already said this. We are keeping the existing prohibition on all sources aged under 16 being tasked in relation to a parent or person with parental responsibility. This reflects the increasing independence of a child approaching the age of 18.

I will now touch on the issue of consistency of approach.

[Lord Paddick]

I am very sorry; I know that it is late. I quoted from the draft revised code of practice. Paragraph 4.3 states:

“Public authorities must ensure that an appropriate adult is present at any meetings with a CHIS under 16 years of age”.


An appropriate adult has to be present at the interrogation of a criminal suspect under 18 years of age. My question was: why is there a difference between the two?

[Baroness Williams of Trafford]

The noble Lord did ask that and I did not answer it satisfactorily. I will write also on that point.

Perhaps I could move on to the oversight regime. The independent oversight of these investigative powers was first legislated for by the Police Act 1997, and the powers are now overseen by the Investigatory Powers Commissioner, who also oversees the powers provided for in the Investigatory Powers Act 2016. The commissioner, like those oversight commissioners his role has replaced, provides the guarantee of impartial and independent scrutiny of the use of these tactics. The oversight commissioners have published reports annually, and, in his final oversight report in 2017, the Surveillance Commissioner commented that,

“standards of compliance have steadily improved in my view, and addressing it generally, they are high”.

The Government accept that the Explanatory Memorandum originally laid alongside the juvenile CHIS order did not go far enough and, as the noble Lord, Lord Haskel, said, the revised version was laid last week. It provides greater detail on the changes made by the order and on the use of juveniles as CHISs more generally. However, I have to make it clear that the Explanatory Memorandum should not be read alone. As I have set out, those charged with authorising and handling young people who act as CHISs have access to extensive guidance available to them to ensure that juveniles are safeguarded. The Explanatory Memorandum is clearly not the right place for the detail that the code contains. Such detailed guidance on the use of these sensitive tactics is necessarily not in the public sphere, as to do so may undermine operational practices and have the potential of putting the CHIS in harm’s way.

The fact that these two orders were laid at the same time is not a fluke—rather, it is the continued development of a suite of statutory safeguards and associated guidance, revised and updated to ensure that these powers are used proportionately and in accordance with the law.

I will now turn to some of the issues which were raised by noble Lords. The noble Baroness, Lady Jones of Moulsecoomb, talked about using children as spies—and this relates to the numbers. I can say to noble Lords that the numbers are extremely low. We do not disaggregate by age, but as I say, the numbers are low.

Operation Conifer: Funding

Lord Paddick Excerpts

Thursday 12th July 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I thought I did know the answer and that I had reiterated it on several occasions. On the question of why not HMICFRS, the Secretary of State can at any time, under Section 54(2B) of the Police Act 1996, require HMICFRS to undertake an inspection on a specific police force or forces, which can be limited to particular matters or activities or a particular part of the force that he or she is concerned about. This power enables the Home Secretary to commission urgent inspection activities, and such inspection reports must be published. The Secretary of State also has powers under Section 54(3) of the 1996 Act to direct HMICFRS to carry out,

“other duties for the purpose of furthering police efficiency and effectiveness”.

[Lord Paddick (LD)]

My Lords, in light of the noble Baroness’s last answer, why have the Government not used these powers to enable HMIC to go to that force and carry out the inspection, as she suggested? Legally, it is not possible to libel the dead, but in practice it clearly is. It is not time that the Government considered a change in the law?

[Baroness Williams of Trafford]

As regards not being able to libel the dead, that has always been the case, but we keep legislation under review. The reason why this will not be done by HMICFRS is that it can carry out an inspection either of the whole force, part of the force or a particular activity of the force, and in this instance the Home Secretary does not see that this would be appropriate.