Carriers’ Liability (Amendment) Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Monday 13th March 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, the usual channels on the Opposition Benches have just had a quick word with me, saying that the noble Lord, Lord Ponsonby, will be able to contribute to the debate.

On these Benches, we welcome the opportunity that the noble Lord, Lord Berkeley, has given us to debate the regulations and the code of practice. He has comprehensively and usefully set out his concerns. We are concerned that—first, through these sanctions on drivers, and, secondly, in the new Illegal Migration Bill, which is still being debated in the other place—the Government are failing to target the criminal gangs exploiting vulnerable people. Their actions never seem to go upstream to get at the smugglers and traffickers. Does the Minister agree that the Government should be focusing on stopping dangerous crossings by whichever means, whether in the back of lorries or on small boats in the channel, by exercising criminal investigations and prosecutions in co-operation with our European partners? Does the Minister agree that providing safe and legal routes to sanctuary is one way of undermining the criminal gangs involved in people smuggling and trafficking?

The noble Lord, Lord Berkeley, talked about the need for a “coherent and holistic policy”. That theme is shared by many critics of the Government’s many actions on what they call “illegal” asylum seekers, but what my Benches and I would call “irregular” asylum seekers. The Government are flailing around all the time; they never address the need for safe routes and the need to work in partnership to target the criminal gangs. In addition, can the Minister provide an update on what investment the Government are making in officers, training and technology to prevent irregular entry at Britain’s borders?

On the specifics of the code of practice and the regulations, does the Minister recognise the validity of some of the concerns expressed by the Road Haulage Association on the clandestine vehicle checklist? I take the point raised by the noble Lord, Lord Berkeley, that “clandestine” is not defined. The RHA says that the clandestine vehicle checklist is too vague and requires clarity to be of use to operators. That is in the light of the comment in the Explanatory Memorandum to the regulations, that, in response to the consultation:

“Stakeholders welcomed the review of the current vehicle security Code of Practice and supported looking to articulate the required standards more clearly.”


Certainly, in the view of one of the main trade associations, the Road Haulage Association, that aim has not been fulfilled, and I will quote some of the specific points it raises. The first is that

“checking beneath HGVs is not always easy or safe especially if a vehicle has low axles”—

I presume that means, in layman’s terms, that you are expected to crawl underneath an enormous lorry, which sounds not only difficult but potentially unsafe. Then it points out:

“The section that calls for ‘checks inside vehicle for signs of unauthorised access’ is too vague, as it does not list whether trailers should be empty before loading.”


The RHA also says:

“Some checks would also be difficult to carry out with temperature-controlled vehicles as opening them requires a refrigerated environment.”


That seems a fair point. Are drivers expected to carry out checks on a refrigerated vehicle in the middle of a July or August day in France? The fourth point the RHA makes is that

“trailers filled with boxes make it impossible to check the roof for signs of forced entry, due to the impossibility of opening the … doors while on the road.”

Those objections all seem reasonable, understandable and eminently sensible, and I look forward to the Minister addressing them.

Finally, I ask the Minister about the fact that, apparently, the only statutory defence would be duress, as

“it will no longer be a statutory defence to say that an effective system for preventing the carriage of clandestine entrants was in operation”.

In quite a lot of scenarios for regulated activities, the emphasis is often on whether you have an adequate policy and a system, so that, if something happens that should not have happened, you can show that you had all the preparation, systems and safeguards necessary. But apparently that would not apply in this situation; the only defence would be if the driver could show that they were put under duress, even if they had done everything reasonable in the circumstances. It is a very narrow basis for a defence.

I look forward to the Minister responding to as many of my points as possible.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we in the Labour Party support these statutory instruments because we believe we need stronger action to tackle dangerous lorry crossings, crack down on criminal smuggler gangs and secure the UK’s borders. Given that the maximum penalty levels have not risen since 2002, we believe it is right to look at these levels as we are now.

However, the Government have said that these measures are being put in place to tackle negligence rather than criminality. Given this, what do the Government plan to do to tackle criminal smuggling and trafficking gangs using lorries to transport migrants? How many of the 3,838 incidents during the previous financial year do the Government believe have been caused by negligence rather than criminality? How many incidents do the Government estimate these new penalty levels will prevent? How many convictions have the Government secured in the previous year against criminal gangs organising vehicle crossings of migrants? Some hauliers have said that there is little more they can do to ask their drivers to better secure their vehicles while maintaining health and safety regulations. How will the Government ensure that these fines target those who are being genuinely negligent?

National Security Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

I am grateful to the Minister for stating that the regulations to establish the scheme will not be put in place until guidance has been issued. It would be helpful if he could state categorically that there will be enough time after the guidance has been released before the scheme becomes operational. There is no point in guidance being published a week before it is operational. Many people will need to familiarise themselves with it, and their knowing that they are not part of it is as important as knowing that they are. If the Minister could take the opportunity to be crystal clear about the Stiftungen, that would tidy up some loose ends. I am grateful for the way in which he has approached this.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the enhanced tier of FIRS requires the registration of arrangements to carry out any activity in the UK, or for future activities to be carried out in the UK, at the direction of a specified foreign power or entity. It also requires activities carried out by specified entities to be registered. I too am grateful for how the Government have responded, following concerns that this tier could deter legitimate activities. The Minister has introduced a series of concessions, as he mentioned in opening, which we welcome. There are outstanding issues, which I would be grateful if he could amplify in his answers.

On his Amendment 106, the noble Lord, Lord Wallace, spoke about the need for regular reviews, which may highlight barriers to international collaboration. He gave examples from his family—particularly his son, who is no doubt doing important research work up at Edinburgh University. The purpose of this is to ensure that the enhanced scheme does not make the same mistakes as other schemes around the world. I draw the Australian scheme to the Minister’s attention, which I understand is currently being reviewed, given some high-profile concerns about how it is working. I look forward to his answer.

[Lord Sharpe of Epsom (Con)]

I thank noble Lords for their contributions to this short but constructive discussion. I will turn straight to the amendments tabled by the noble Lord, Lord Wallace of Saltaire.

Amendment 91 seeks to ensure that registration under FIRS is not required when the arrangement is registered under other legislative requirements. However, somewhat contrary to the noble Lord’s assertion, I think there is a clear difference between FIRS and the National Security and Investment Act, the academic technology approval scheme and the export control regime. The Government are clear that FIRS fills a gap in our toolkit. It is worth highlighting that the focus of this enhanced tier is to provide scrutiny to UK activities directed by specified foreign powers—it is worth emphasising this; we are talking about the enhanced tier—and foreign power-controlled entities.

We consider that there will be limited circumstances where there is a risk of duplication, but we will work closely across government departments and potential registrants to keep the burden of registration to a minimum and inform our approach to using this tier of the scheme. The Government do not want to impose unnecessary burdens. We have committed to a consultation on the guidance ahead of bringing the scheme into force. If that process identifies risks of duplication, the power to target what arrangements and activities will need to be registered can be used to reduce unnecessary duplication. This will be considered on a case-by-case basis when specifying foreign powers and entities.

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[Lord Purvis of Tweed (LD)]

My Lords, the noble Baroness, Lady Hayter, raised valid areas with regard to the sometimes complex relationships between political parties and the Governments of states, which I hope the Minister, who referred to foreign Governments, can go a little further and point to. It is absolutely right that that is one of a number of criteria set down earlier in the Bill, in Clause 32, and that the meaning of a foreign power includes

“a political party which is a governing political party”.

There will still be issues when it comes to relationships such as demand and supply and other kinds of relations, but I hope that the Minister will provide clarity and proper consultations so that, when we come to the finalised guidance and regulations, those issues will be very clear. The Minister will not be surprised to hear that, as in the earlier group, we are still hoping for that bit of clarification on the German Stiftungen and others represented by the kinds of organisations that the Stiftungen are—those that operate within a public policy and political sphere but are not directly linked to the Government or governing political parties although they are, by definition, political in their nature. I am sure that the Minister will respond to that when he winds up.

Like the noble Baroness, Lady Noakes, we have a number of scars on our back from legislation where we have tried to do heavy lifting in this Chamber to improve Bills. I tabled a number of amendments in Committee highlighting the concern that what had been brought forward was an unworkable scheme; I think we are now looking at a workable scheme. That is important for the security of our country.

I particularly welcome the draft registration forms, about which I had raised concerns in Committee. I am very pleased that the Minister will be having an active consultation. I am delighted that there will be an updated impact assessment. While the Minister said that that is required of the Government, in previous Bills some excuses have been made for impact assessments not to be updated, so I am very pleased about that. And on the draft regulations, as I said, I am delighted.

As I said on the earlier group, the Minister has been true to his word. I have just one final favour to ask of him. Given that I have been rather successful with colleagues in securing some concessions on this Bill, could he have a word with other Ministers, just to say that “Purvis is not always wrong”? Sometimes, we can do our job in this place; we can make the Government’s job a bit better and make unworkable schemes workable. I commend the Minister for how he has approached this so far.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there seems to be a new approach to Ministers by buttering them up. I noticed my noble friend buttering up the noble and learned Lord, Lord Bellamy, the other day, which seemed to cause amusement in the House. Nevertheless, I too thank the Minister for his response to the earlier concerns raised. The primary tier of FIRS requires the registration of

“arrangements to carry out political influence activities within the UK”,

or to arrange for such activities to be carried out in the UK,

“at the direction of a foreign principal”.

Registration of political influence activity is also required

“where the activity is being carried out by the foreign principal itself. The foreign principal will be responsible for registering political influence activities”.

As I said, concerns were raised that this could impair international co-operation through political parties and similar organisations. It was previously reported that the Government might withdraw the primary tier entirely, but, instead, the Minister has removed the most controversial features of this and accepted Amendment 110A in the names of the noble Lords, Lord Anderson and Lord Carlile—and the name of the Minister himself is also on that amendment.

I also mention the contacts from the German embassy in relation to the same points raised by the noble Lords, Lord Purvis and Lord Balfe, at an earlier stage of Report: the concerns of political foundations such as the centre-left Friedrich-Ebert-Stiftung and the centre-right Konrad-Adenauer-Stiftung and whether they would have a duty to register. If the Minister could repeat what he said earlier, I hope that the minds of the representatives of those organisations will be put at rest.

I welcome what has been said. I hope that this is indeed a workable scheme. I think it was the noble Baroness, Lady Noakes, who described a “radical overhaul”, which it is not usual to get on such an important Bill as this. I think that everybody accepts that this is a very important Bill and I hope that it will emerge from your Lordships’ House a better Bill than when it arrived.

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[Baroness Ludford (LD)]

My Lords, I can speak briefly because my noble friend Lord Marks and the noble Lord, Lord Pannick, have spoken forcefully on this matter. The amendments to remove Clauses 89 and 90 are in my name and signed by the noble Lord, Lord Pannick. I spoke at some length on this in Committee, and I believe it is a matter of principle—a very flawed principle, as the noble Lord, Lord Pannick, said—to bar anybody with a terrorism offence, however minor, from being granted civil legal aid.

The noble and learned Lord, Lord Bellamy, admitted in Committee that this proposal was “symbolic”— I think he said it more than once. In other words, it is gesture politics. The hope must be, as the noble Lord, Lord Pannick, just said, to paint those of us opposing it as somehow soft on terrorism, but I put it to the Government that they could be regarded as soft on murder, rape and sexual offences. They are apparently content that major offenders against women, of the likes of Wayne Couzens and David Carrick, variously guilty of abduction, rape and murder, could one day be eligible for civil legal aid, but not someone who is a minor offender under terrorism laws. If they try to throw at us in the Daily Mail that we are soft on terrorists, the Government ought to be prepared for a counter charge that they are soft on murderers and rapists. Given the huge public concern in recent weeks, months and years about the volume and the type of offences against women, I do not think that the Government are going to come out of this well.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, these clauses restrict access to civil legal aid for convicted terrorists, although there are exemptions to this, such as when the convicted terrorist is under 18. I welcome government Amendments 184 and 186, where the Minister has made a further concession regarding people who have been victims of domestic violence and domestic abuse.

While we support the principle that terrorists should not receive legal aid, we are concerned that application of these clauses could permanently impact those with minor offences such as vandalism. We have therefore tabled Amendment 188A in my name to create a practical mechanism to address these concerns. This would establish a statutory review of the impact on those who receive non-custodial sentences. We will not support Amendment 180 in the name of the noble Lord, Lord Marks, which would allow terrorists to receive legal aid if their applications relate to a non-terrorism offence. We believe that these most serious offenders who commit attacks on the UK should not receive support, regardless of the nature of their later civil proceedings.

There is a point of principle here, which is that terrorism is a uniquely targeted offence against the British state, and we think that that needs to be recognised. However, there are the points of the low-level offences, which I brought to the attention of the Committee, and there is also the point that was acknowledged by the Minister about people who are victims of domestic abuse. So, there are principles here, but there is a clash of principles.

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[Lord Ponsonby of Shulbrede (Lab)]

I agree that it demands justification, which is that when terrorists carry out their activities, they are attacking in a random way the state itself. The attacks against women to which the noble Baroness referred are of course totally reprehensible, but do not attack the state in any way. They attack women for what they are and those offences are, of course, taken extremely seriously.

I accept that the Government’s amendments regarding civil legal aid on these offences send a message. I and the Labour Party accept and support that point. However, that needs to be ameliorated at the lower level and reviewed. That is why I will be testing the opinion of the House when we reach Amendment 188A.

[Baroness Butler-Sloss (CB)]

That does not clear a path in the Bill at all. I am rather shocked by Clause 89. I should like to ask the noble Lord whether he accepts the position regarding someone who was convicted of terrorism some years before and brings a civil claim, particularly, for instance, for eviction from housing. Is he or she entitled to a lawyer in order to be able to come before the court and put his or her case? If so, there is an absence of fairness if that person cannot afford the lawyer that he or she would need, and would have to represent himself or herself. That seems to be contrary to access to justice.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we in the Opposition are accepting the principle that terrorism is uniquely terrible and needs to be dealt with in that way. However, my amendment calls for a review of the impact of this on certain lower-level cases.

[Lord Pannick (CB)]

The noble Lord is being patient, but what is there to review? Why has he not put down an amendment that simply excludes from this objectionable clause those who are convicted only in circumstances that lead to a non-custodial sentence? That surely is the logic of what he is saying. Why do we need a review?

[Lord Ponsonby of Shulbrede (Lab)]

We need a review because we do not know what the impact is unless we have looked at the data. It seems to be as simple as that.

[Lord Purvis of Tweed (LD)]

I am grateful and the noble Lord is being patient on these points. He referred to only the most serious cases and said that there was a separate issue with regard to cases that are less serious. In Committee, he used as an example a personal one: someone being convicted of the offence of graffiti. That woman—if indeed it was a woman—would no longer be able to get any legal aid support if she had been a victim of human trafficking or sexual attack. That cannot be right. Does the noble Lord agree that that is what he is supporting today?

[Lord Ponsonby of Shulbrede (Lab)]

As the noble Lord knows, the amendment is calling for a review to look at the practical impact of the proposed legislation. We have yet to hear from the Minister on whether the Government accept that a review is necessary.

[Lord Davies of Gower (Con)]

My Lords, I remind noble Lords that this is Report and not an opportunity to further debate the matter.

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Moved by

[Lord Ponsonby of Shulbrede]

188A: Clause 89, page 61, line 33, at end insert—
“(10A) Within 60 days of this section coming into force, a Minister of the Crown must publish a review in to the impact of this section on offenders who have been sentenced to a non-custodial sentence.”Member's explanatory statement
This amendment means that a Minister must review the impact of restrictions on legal aid on those who receive non-custodial sentences.

[Lord Ponsonby of Shulbrede (Lab)]

I wish to test the opinion of the House.

National Security Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall be very brief. I thank the Minister for his explanation of the Government’s amendments. We recognise that they have come a long way since Committee. The amendments in this group seek to address the unintended consequences of offences for journalists and NGOs. Concerns have been raised throughout the Bill that the legitimate activities of journalists, such as the possession of leaked information, could lead to their prosecution. The main focus of today’s debate is Amendment 18 from the noble Lord, Lord Black. It aims to give a specific offence, whereas our Amendment 79B calls for an assessment of the impact of this group.

Given the significant concessions made by the Government, I will not divide the House on Amendment 79B and we will abstain on Amendments 18 and 72 if they are moved to a vote. However, I understand the point made by the noble Baroness, Lady Stowell, when she said that she would listen to the Minister, deliberate and see what will be done. I do not know whether the noble Baroness, Lady Jones, will press Amendment 18 to a vote even if the noble Lord, Lord Black, chooses not to. Either way, the Labour Party will abstain on those votes.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords who have spoken in this debate for their very warm words. The strength of opinion highlights how important journalistic freedom is, and the Government take it extremely seriously. Whistleblowing will be dealt with in the next group, so if the noble Lord, Lord Purvis, allows, I will not deal with it in my response.

I am very grateful to my noble friend Lord Black for his amendment and for his general comments in support of this Bill. As I have said, we have listened to concerns raised by the media sector and noble Lords. The Government’s amendments are a direct response to them. I will endeavour to provide the clarity that my noble friend Lady Stowell asked for.

On my noble friend Lord Black’s amendment, the Government cannot accept a defence linked to the definition of a recognised news publisher. Rather than taking activity out of scope, the defence would act as a way for foreign powers, particularly those seeking to cause the UK harm, to avoid prosecution under this clause and engage in harmful espionage activity. If a journalist is deliberately colluding with a foreign intelligence service in relation to their UK-related activities, such as by revealing intelligence capabilities that could be exploited by that intelligence service, it is absolutely right that they should face criminal sanction.

I acknowledge that the amendment seeks to provide a targeted protection for journalists by referencing “a recognised news publisher”. The Government have serious concerns that any individuals working under the cover of journalism in foreign media organisations operating in the UK would be able to abuse this provision. Even if hostile state actors did not currently use journalistic cover to engage in espionage, having a defence such as this would almost certainly encourage them to do so. This defence would apply even if the conduct in question was probably against the public interest. This is simply not acceptable; it would give foreign states a back door to commit espionage. Accordingly, the Government cannot accept this amendment and I ask my noble friend not to move it.

However, I want to reassure the media sector that publication of an article that was critical of the UK Government, and which might incidentally be capable of assisting a foreign intelligence service, would not fall within the scope of this offence; nor would the handling of materials in the course of genuine journalistic activities, nor likely the other offences in this Bill. For an offence to be committed under Clause 3, an individual would need to engage in conduct intending

“to materially assist a foreign intelligence service”,

or know, or should have known given the information they had at the time, that it was likely that such conduct would do so.

The Government may profoundly disagree with the conclusions of some journalists, but we will not hide behind the criminal law to suppress genuine competing views and it is almost inconceivable that genuine journalism will be caught within the threshold for criminal activity. My noble friend raised some specific examples and there are many—for example, those relating Snatch Land Rovers a few years ago—but the Government do not consider that the publication of an article that was critical of the UK Government, and which incidentally might be capable of assisting a foreign intelligence service, would fall within the scope of this offence. I think it is worth repeating that.

Many of the examples that have been provided in various articles are stories which relate to terrorism. No journalist has been prosecuted for an offence under terrorism legislation. Even where examples are relevant to state threats activity, no journalist has been prosecuted for an offence under the Official Secrets Act. This Bill will be no different and the Government do not accept the view that it criminalises the activity described in the media.

The test of material assistance is key. To be “material”, the assistance to the foreign intelligence service must be important, considerable or in a significant way. As with all criminal offences, it is the specific circumstances of the case that will be important and will be a matter for the prosecuting authorities, but we would expect prosecutions to involve those with known links to foreign intelligence services, including evidence of a relationship, tasking or payment. Absent these links, the Government struggle to envisage even the most provocative piece of journalism meeting the threshold for the offence.

The noble Lord, Lord Purvis of Tweed, noted the Statement made last week on Iran International, and many noble Lords will have read it; it highlighted the potentially lethal operations of the Islamic Revolutionary Guard Corps taking place in the UK. Far from criminalising the important work of journalists, this offence is intended to protect Iran International, and others who live and work here, from such direct attacks on our people and values.

I turn to amendments tabled by the noble Lord, Lord Marks, with regards to security or defence interests under Clauses 1, 3, 4, 8, 12 and 14. These amendments seek to narrow the definition of “interests of the UK” to ensure a focus on the protection of national security and defence interests, alongside economic security interests. Similar amendments were tabled in Committee, so I will reiterate the concerns the Government continue to have with these changes, as they remain relevant. Narrowing the interest element to cover only security or defence interests significantly moves away from the “safety or interests of the UK” test that already exists and is understood within current espionage legislation. I am afraid these amendments move away from the status quo by creating a test with an unduly narrow focus on national security. While the noble Lord importantly made specific reference to interests pertaining to the UK in its economic security, these amendments continue to not include other critical UK interests relating to public health or, for example, the preservation of our democracy.

The noble Lord, Lord Marks, referred to the case of Chandler v DPP, as did his colleague the noble Lord, Lord Purvis. “Safety or interests of the UK” has been considered by the courts to mean the objects of state policy, determined by the Crown, on the advice of Ministers. We expect this interpretation to carry forward to the new legislation and there are safeguards in place to prevent the Government using this legislation inappropriately—for example, by deciding that somebody is acting against government policy but where there is no national security impact.

Each offence under this legislation includes a test that must be met in order for the offences to be committed. For example, for a person to commit a Clause 1 offence, they must obtain or disclose information that is protected for a purpose

“that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”

and the activity must be conducted for, on behalf of or with the intention to benefit a foreign power. This limits the type of conduct capable of being caught under this offence, and in particular the foreign power condition ensures that there is a state link. Designing the offence in this way clearly focuses the offence on harmful state threats activity.

I now turn to Amendment 72, tabled by the noble Baroness, Lady Jones of Moulsecoomb, and signed by the noble Lord, Lord Pannick. The most concerning consequence of this amendment is that where a state threats actor, acting under a proxy, has been engaged in harmful activity, which was an offence under the Bill, they would not commit an offence even if it could be shown that they were receiving specific funding in relation to that activity from a foreign power. The House will note the references to “state threats”, “foreign powers” and “national security”. Much as the amorous adventures of Matt Hancock may be of interest, clearly none of those falls in the scope of this offence.

It is no secret that those with hostile intent try to hide their activities through genuine means, and through this amendment there is a real risk that they could operate through proxies in order to make it more difficult to be prosecuted. It is therefore clear to see that narrowing the scope of the foreign power condition will have a damaging impact across the Bill. The Government considers this amendment would create unnecessary loopholes for state actors to exploit.

I would like to remind the House that the Government amended Clause 31(2)(c) in the other place to put it beyond doubt that there needs to be a clear link between the conduct and any assistance or funding from a foreign power for the condition to be met. It is the Government’s view that this puts the focus on the foreign power, ensuring that financial or other assistance from the foreign power is caught only when it is provided to enable the person to carry out the conduct, not when it is just any financial or other assistance.

I would also like to make it clear that Clause 31(2)(d), which concerns activity carried out in collaboration with, or with the agreement of, a foreign power, requires the foreign power to be actively involved in that collaboration or agreement; it does not cover cases where a person’s activities align with state objectives. The Government therefore ask the noble Baroness, Lady Jones, not to press her amendment.

To conclude, as all speakers have noted, the Government have moved a very long way in ensuring that journalistic freedoms are not being unduly encroached in this Bill, so I hope noble Lords will accept our amendments and withdraw or not press theirs.

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[Lord Evans of Weardale (CB)]

If I am being invited to comment on whether I would support a different amendment, I say that might well be the case. However, I do not support the amendment that is before us.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, throughout the passage of the Bill, concerns have been raised that legitimate acts in the public interest could lead to prosecution under the Bill. The Government have insisted that a public interest defence could legalise instances of espionage or sabotage. The noble Lord, Lord Marks, has said that he will press his amendment to establish a public interest defence. While we in the Labour Party support this in principle, we believe that the amendment is too broad and that it could in effect legalise espionage. We believe that there need to be appropriate safeguards built into any future legislation.

Further to this, we believe that the amendment of the noble Lord, Lord Marks, fails to implement the Law Commission’s recommendations; that was a point made by my noble friend Lord West. I will instead press Amendment 18A, in the name of my noble friend Lord Coaker, to a vote; that is for a consultation on the introduction of a public interest offence, which we believe can establish some mechanism for addressing the concerns of the House. We believe that the amendment is a tighter and more focused approach than the alternative of the noble Lord, Lord Marks. To address wider concerns on whistleblowing, we have also tabled Amendment 79A to establish an independent statutory commissioner, although we will not press it to a vote in due course.

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Moved by

[Lord Ponsonby of Shulbrede]

18A: Clause 3, page 4, line 24, at end insert—
“(9A) Within six months of this Act being passed, the Secretary of State must consult, and publish a report of that consultation, on proposals for a public interest defence in relation to an offence under subsection (2).”Member's explanatory statement
This amendment requires the government to formally consult on the introduction of a public interest defence for offences committed under Clause 3(2).

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I wish to test the opinion of the House.

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[Viscount Stansgate (Lab)]

My Lords, I want to speak briefly to ask the Minister a question. I support what has been said by my noble friend Lady Hayter and the noble Lords, Lord Wallace and Lord Marks, but is Clause 32(1)(e) not possibly a case of government overreach? When it is listed that a political party involved in a Government of a friendly power should be included in the Bill in this way, does it imply that every member of that political party would be covered by this provision? Are we talking about the headquarters of a political party or the membership? That would involve so many people, I wonder whether the Government really mean to do that and, if so, whether they realise what an incredible extension and overreach that might represent.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a more wide-ranging debate than I was anticipating. The definition of a foreign power is an important issue. It was covered by the Minister in Committee, and I look forward to him expanding on what he said and particularly to address the points made by my noble friend Lady Hayter in her Amendment 74. I think I will leave it there because we have other business to deal with, and I look forward to the Minister’s response.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken in this debate, and I will do my best to clarify all the points and answer all the questions that have been raised. First, I turn to government Amendment 76, which addresses concerns raised in Committee and in the report by the Joint Committee on Human Rights on the drafting of the third limb of the foreign power threat activity provision. This provision is a key part of the Bill which ensures that police have the powers they need in supporting investigations into state threats offences. The concerns raised were that support or assistance unrelated to the harmful conduct covered by foreign power threat activity under Clause 33(3) risked being caught under Clause 33(1)(c). That is not the Government’s intention, and this amendment puts it beyond doubt that the support or assistance must be in relation to the conduct covered by Clause 33(1)(a) rather than unrelated activity. I hope that addresses the concerns helpfully put forward by noble Lords in Committee and that this amendment is welcomed.

This group also includes Amendment 74 tabled by the noble Baroness, Lady Hayter of Kentish Town, and it relates to the meaning of a “foreign power”. The amendment seeks to remove

“a political party which is a governing political party of a foreign government”

from the definition. I would very much like to thank the noble Baroness for the constructive engagement we have had on this issue. I know her principal concern is with the effect of this clause on the foreign influence registration scheme, which of course we will be debating next week.

The foreign power condition applies right across the Bill and is crucial in order that the new offences in it, such as espionage, theft of trade secrets and sabotage, work effectively. Removing it here would remove it from those other offences too. The Government’s position, as the noble Baroness is aware, is that the inclusion of governing political parties addresses situations where there is a dominant political party, or parties, within a country, to such extent that it may be difficult to disentangle whether harmful activities have been carried out on the direction of the ruling party or the Government.

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Moved by

[Lord Ponsonby of Shulbrede]

80: Leave out Clause 56 and insert the following new Clause—
“Reviews of Parts 1, 2, 4 and 5(1) The operation of Parts 1, 2, 4 and 5 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.(2) The operation of Part 4 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006 (review of terrorism legislation).(3) The operation of Parts 1, 2 and 5 must be reviewed by either—(a) the person appointed by the Secretary of State under section 36(1) of that Act, or(b) a different person appointed by the Secretary of State. (4) Reviews under this section must be carried out in respect of—(a) the 12-month period beginning with the day on which any section in this Part comes into force, and(b) each subsequent 12-month period.(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before each House of Parliament.(8) Section 36(6) of the Terrorism Act 2006 has effect as if the references to “expenses” and “allowances” in that subsection included “expenses” and “allowances” in connection with the discharge by the person or people of functions under this section.”Member's explanatory statement
This amendment would provide for the regular review of the operation of Parts 1, 4, and 5 of the Act as well as of Part 2.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will be brief. Amendment 80

“would provide for the regular review of the operation of Parts 1, 4, and 5 of the Act as well as of Part 2.”

Also in this group are government Amendments 81, 85 and 86. Of course, we welcome that the Government have engaged on the issue of oversight and introduced significant concessions. However, the purpose of Amendment 80 in the name of my noble friend Lord Coaker is to go further. On that basis, I beg to move.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I know that this is Report and we do not have to and fro, but I was making the point that it was an omission in the Government’s amendment. It is utterly open-ended as to whether the Secretary of State will lay the report from the independent reviewer before Parliament. I was seeking clarification from the Minister that that would not be the case.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it was me who moved Amendment 80, which is the first amendment in this group. I thank the noble Lords, Lord Purvis and Lord Anderson, for supporting it. Regarding Part 5, which is covered by my amendment, the Minister described it as supplementary. Well, it may be supplementary, but it is very consequential, because it provides that the Government can make any consequential provision that is a result of this Act, and that consequential amendment can apply both within and outside the UK. It is very significant, even though the Minister may describe it as supplementary.

For that reason, and to provide a more comprehensive view of the Act, as it will be in due course, I wish to test the opinion of the House on Amendment 80.

Public Order Bill

Lord Ponsonby of Shulbrede Excerpts

3rd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, we wholeheartedly support all the amendments in this group. Noble Lords often talk about the tremendous work the noble Baroness, Lady Sugg, has done on this Bill, although I realise they have not said it in those terms.

It may come as a surprise to Members of this House that I consider myself to be a Christian. I rather overdid it: I was baptised as an infant; then I became a Baptist and was baptised by total immersion; and then I went to Oxford and was confirmed in the Church of England. It was belt and braces as far as I am concerned. This legislation is not anti-Christian and, in respect of people who privately pray, my understanding is that prayer works very effectively outside of a 150-metre radius of an abortion clinic.

I have to apologise to the House: I should have been on my guard on Report. I refer to the debate on 7 February, when the Minister talked about the Government having tabled amendments

“which seek to allay some of the concerns expressed by your Lordships.”

I think the Minister knows what is coming. He went on to say that the second amendment, Amendment 58,

“reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years … It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs”.—[Official Report, 7/2/23; cols. 1147-48.]

Regrettably, when it came to Amendment 58, the Minister “not moved” his own amendment. I was not quick enough to intervene to rescue it, so that amendment is lost. It was not part of an amended part of the Bill, so it cannot be amended here at Third Reading, and it cannot be amended in the Commons either. As I said, I apologise for not being quick enough to spot that mistake. Having said that, we support all the amendments before the House today.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we too support all the amendments today. I open by thanking the noble Baroness, Lady Sugg, for all her work on this matter; I know that she has worked tirelessly between both Houses and both sides of this House. I am glad that we have reached this point and, to that extent, I agree with the noble Lord, Lord Cormack.

I reiterate what the noble Lord, Lord Paddick, said: plenty of Christians support the amendments and there are a number I know who would take exception to people describing them as somehow not as good Christians as those who wish to protest by praying within 150 metres of an abortion clinic. It is perfectly clear that you can pray wherever you like, but outside 150 metres of an abortion clinic.

I would like to reinforce the points made by the noble Lord, Lord Anderson, who talked about the strength of the votes at earlier stages of the Bill. He highlighted stop and search and SDPOs, and the strength of support from across the Cross Benches, including from many very senior former judges. I hope that when the Minister wraps up, at this stage or the next, he says something or gives us some hint about how far the Government will go in recognising the concerns that this House has expressed.

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

My Lords, subsequent to Report and ahead of today’s Third Reading, the Government have brought a number of clarificatory technical amendments.

First, during the debate on Report on 7 February, the noble Lord, Lord Anderson, asked for clarification, as he has referred to, that a second or subsequent serious disruption prevention order made in respect of the same person could not be founded on trigger events that had already been taken into account for the purposes of a previous order. I confirmed that that was indeed the Government’s intention. In this spirit, the Government have today brought an amendment clarifying that position within the legislation. I hope noble Lords are satisfied with that legal clarity and I thank the noble Lord for his remarks.

Finally, on Report, your Lordships voted to remove from the Bill Clause 11 on suspicionless stop and search, and Clause 20 on serious disruption prevention orders made otherwise than on conviction. As a result, the Government have brought tidying amendments that are consequential to those amendments. I will not speculate further on what may happen later.

Authority to Carry Scheme and Civil Penalties Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Tuesday 21st February 2023 Grand Committee

[Baroness Hamwee (LD)]

I thank the Minister for explaining the regulations and the scheme in such detail. I am afraid I have some questions—even though I know he takes the view that debates are opportunities for debate rather than asking questions.

I appreciate and understand that the scheme is to align with the electronic travel authorisation system. The regulations and therefore the scheme come into effect when the instrument is made, as I understand it. I spoke to the Public Bill Office about this this morning, because I wanted to be clear about it. The Minister has just said that when the new scheme comes into effect, the 2021 scheme will be revoked. That seems to suggest that there has to be some very careful timing. As the regulations are not replacing earlier regulations, if there is a problem under the earlier scheme, the new regulations can cope with it smoothly. That is how the PBO explained it. Is that actually the case? Does the timing have to align with the EU’s new border arrangements? Most particularly, when will the ETA come into effect? I know we still await details of it: how it will be implemented, its cost and how its application will be approved. There is obviously a lot of concern about practical aspects for both carriers and travellers.

Paragraph 14(d) of the scheme provides that authority to carry may be refused for individuals

“in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order”.

In other words, it can bite before an order is made. Do I have that right? If so, can that be right? The Secretary of State surely needs to make an order; it is not automatic.

It is similar for individuals who—the Minister has used this terminology already—

“would be refused entry clearance or a visa”

under the new rules and for individuals who

“would be refused an ETA”,

entry clearance or a visa under the rules. That is even further away from the decision. Perhaps the Minister can tell the Committee—because I assume that quite a lot of this replicates the earlier schemes, so they are not just hypotheticals—how this is proper. Immigration Rules are subject to change without parliamentary involvement. What right of appeal is there, particularly if there is a refusal before the Secretary of State has reached a decision? It does not feel comfortable to me.

We are told in the Explanatory Memorandum that an ETA may be cancelled when that is in the public interest, and that, under the earlier schemes, authority has been refused in respect of—it has now gone up to—11,200 individuals. That is a lot of individuals, each one of whom, and their family in many cases, is no less affected. As the Explanatory Memorandum points out, as a percentage of all arrivals it is quite small—but it is a lot of individual people. Does the Minister know how many of the 11,200 were UK residents? How will the Government ensure that certain nationalities or ethnicities will not be disproportionately affected by the scheme? The Minister also mentioned revocation of leave. If or when that happens, will the individual be notified? Will he be aware of that revocation?

There has been praise for the bespoke schemes for Ukrainians fleeing the war. How will the travel authorisation schemes operate to ensure that the UK’s response to other humanitarian crises is not hindered? Sadly, there are many other conflict areas and an awful lot of people affected by the earthquake in Turkey and Syria.

I am sure the Minister is not thrown by having a number of questions raised without notice; I looked at this only over the weekend. The questions I raise may sound like matters of detail, but I think that in fact they are all matters of principle.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument. The SI replaces the 2021 no-fly scheme that prevents terrorists, serious criminals and others travelling into the UK via aircraft, ships or trains. The scheme was introduced in 2012 and was updated by statutory instrument in 2015 and 2021.

The 2023 scheme extends the range of people who carriers can be refused authority to carry to those refused an ETA or those travelling without a valid document or travelling on the document of another person. Penalties of up to £50,000 were put in place on carriers that breached the terms of the scheme. The maximum penalty has not increased since the original scheme in 2015. Is there any scope for increasing this maximum, along the lines of inflation or something like that? This question was asked in 2021, but I am not sure that my noble friend who asked it got a reply.

The ETA scheme has not been introduced, nor have details been released on how it would work, who would need to apply for it, how much it would cost or on what grounds it would be revoked. As we have heard, the Government have stated that it will be in place by the end of 2024. Can the Minister confirm that that is still the case for when it will be introduced?

The noble Baroness, Lady Hamwee, asked a number of pertinent questions about the alignment of the ETA with EU regulations and how it will work with the wider carrier network, if I can put it like that.

In response to questions raised in the Commons this month, the Minister stated that 23 penalties have been imposed over the seven years of the scheme and that the number of people prevented from travelling has stayed consistent over this time. The figures given were that 1,702 people were prevented from boarding in 2016-17 and 1,700 in 2022-23. In the 2021 Lords debate, the Minister did not respond to questions about whether some carriers had been repeat offenders. I do not know whether the Minister has any information on whether particular carriers are repeat offenders when fines are given to them.

The Explanatory Memorandum states:

“Updated guidance will be provided to industry”,


but no detail has been provided on when that will take place. Can the Minister tell us when that updated guidance may be available?

Finally, there is the status of transit passengers. How are they brought into the scope of these regulations and will they be affected? Having said that, we support the statutory instrument.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions and questions. I think I have answers to them all, and I will take them in turn.

I turn first to matters raised by the noble Baroness, Lady Hamwee, who asked when the 2023 scheme will come into effect. Regulation 2 of the draft instrument provides that:

“The Authority to Carry Scheme … comes into force on the day on which these Regulations come into force.”


That is mirrored in paragraph 28 of the scheme, which observes that it will come into force on the day the authority to carry scheme regulations come into force. Obviously, that is the date on which the new scheme will be in force. I can put the noble Baroness’s mind at rest. If she were to compare the 2021 scheme and the 2023 scheme, a lot of the text is the same. The changes introduced by the new scheme are simply to effect the changes that I outlined in my earlier remarks. There will not be any gap that will affect the implementation of the scheme or proceedings brought under the earlier scheme, because they will then simply be under the new scheme that is in force.

The noble Baroness asked whether the scheme has to align with broader issues. I hope I have already addressed that; it is making only minor changes, so it should align and there should not be any difficulties. The provisions about ETAs are there in readiness for the implementation of ETAs along the lines of the timetable suggested by the noble Lord, Lord Ponsonby.

Public Order Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, to be clear at the outset, we will support Amendment 56 in the name of the noble Lord, Lord Anderson, and I will not divide the House on Amendment 59. I shall speak to Amendment 63, which is tabled in my name and has cross-party and Cross-Bench support.

I welcome the positive move that the Government have made on SDPOs, particularly removing electronic monitoring and limiting an SDPO’s renewal to only once to take into account some of the concerns raised in this House and the other place. Despite this, it remains my view that it is necessary to pursue the wholesale removal of Clause 20. It is simply not proportionate, necessary, Human Rights Act-compliant or good value for money to introduce a power to allow serious disruption prevention orders to be given without a conviction being made.

This is not just my view. The Joint Committee on Human Rights agrees that Clause 20 would interfere

“with legitimate peaceful exercise of Article 10 and 11 rights”

and that:

“The police already have powers to impose conditions on protests and to arrest those who breach them.”


Amnesty International also agrees, saying that Clause 20 is “wholly disproportionate”, restricting

“the exercise of a fundamental right of peaceful assembly based on past conduct and there is no requirement that the past conduct be of a serious nature.”

The Metropolitan Police Commissioner also agrees, confirming this week that “policing is not asking for new powers to constrain protests”.

Experts agree that, since the police already have the powers they need and since this new power would threaten the fundamental right to assemble peacefully, the Government would be wise to think again on this matter. The UK cannot condemn authoritarian regimes cracking down on protests and at the same time celebrate the bravery of protests such as the umbrella movement or the white paper protesters. I will divide the House on Amendment 63, and I hope the Government will use this opportunity to remove this harmful provision.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have contributed to this shortish debate. This group contains notices to oppose, so I will start with those amendments which take issue with serious disruption prevention orders as a whole. The feeling expressed by noble Lords when speaking to these amendments is clear, but I do not support the full removal of these provisions, and it is important that I make clear the reasons why.

Peaceful protest is a fundamental part of our democracy, but causing serious disruption under the guise of a protest is not. Why should protesters who are determined repeatedly to inflict serious disruption continue to be allowed to do so, especially when their actions impact those who simply wish to go about their daily lives, and potentially risk the safety of our emergency services? SDPOs will give the police and the courts the powers that they need proactively to prevent protesters causing serious disruption, time and again. Those protesters found in breach of an SDPO will be liable for arrest, meaning that the police will not need to stand by until an act of protest-related serious disruption has already taken place before they can act.

Some will argue that many of these protesters are already arrested, but a small group of individuals who have been arrested during disruptive protest action have reoffended soon after. To deter this small group of individuals, SDPOs provide an alternative, non-custodial route to prevent those who have a track record of causing serious disruption in the name of protest. SDPOs will prevent protesters causing harm by subjecting them to proportionate and necessary restrictions or requirements. Such restrictions might involve stopping a protester who has previously locked on carrying an item that would assist them doing so again or require a protester, for example, to report to a police officer at the time when a planned protest is due to take place. I should make it clear that it will be up to the courts to consider what measures are put in place on a case-by-case basis to ensure that they are both proportionate and necessary.

In Committee, concerns were raised that SDPOs are a harsh and intrusive way of preventing serious disruption. However, it is important to make it clear that a prohibition or requirement of a preventive order is much less intrusive than a prison sentence, which is a potential consequence of some of the protest-related offences that can lead to an SDPO.

Many noble Lords have asked whether anybody at a protest could be subject to an SDPO. As I hope I made clear in Committee, only those who have committed protest-related offences, breached a protest-related injunction or caused or contributed to protest-related activities on at least two occasions would be considered for an SDPO. It is for the courts to decide whether someone’s actions caused or contributed to serious disruption at a protest and meet the threshold of an SDPO.

In answer to my noble friend Lord Hailsham’s question, I say that the person potentially subject to an order may present evidence so, yes, the court may consider evidence from the person potentially subject to an SDPO and may adjourn proceedings if the person does not appear for any reason. I should also clarify that Clause 20(6) states:

“On making a serious disruption prevention order the court must in ordinary language explain to P the effects of the order.”


Therefore the person would need to be present.

--- Later in debate ---

Moved by

[Lord Ponsonby of Shulbrede]

63: Leave out Clause 20

[Lord Ponsonby of Shulbrede (Lab)]

I wish to test the opinion of the House.

Police Misconduct Cases

Lord Ponsonby of Shulbrede Excerpts

Monday 6th February 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I am afraid that I will have to go over old ground. The arrangements for the misconduct hearing of the former chief constable Mike Veale are a matter for the Cleveland police and crime commissioner, and the management of the hearing itself is the responsibility of the independent legally qualified chair appointed to it. My noble friend is right that legally qualified chairs must commence a hearing within 100 days of an officer being provided with a notice referring them to proceedings, but this period may be extended when a legally qualified chair considers that it is in the interests of justice to do so. I am afraid that I will have to repeat the old mantra that it would be inappropriate to comment further while these proceedings remain ongoing.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, given that the Leicestershire PCC, Mr Matthews, refused the chair of the panel’s request for Mr Veale to be interviewed by the panel, as the law demands he should be, what is HMG’s view of Mr Veale’s resignation last week from his post as interim chief executive officer of the OPCC?

[Lord Sharpe of Epsom (Con)]

My Lords, the appointment of staff is a matter for police and crime commissioners but, as the noble Lord is right to point out, they are required by legislation to seek the views of their police and crime panel when appointing to senior positions within their office. I note Mr Veale’s resignation but the Home Office has no role in such appointments and it would therefore be inappropriate for me to comment on this matter directly.

Rwanda: Memorandum of Understanding

Lord Ponsonby of Shulbrede Excerpts

Monday 6th February 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as we have heard from my noble and learned friend Lord Morris, it was in 1924 that the original Ponsonby rule was put in place; indeed, he was my great grandfather. The noble Lord, Lord Kerr, believes that elements of that are still in place, even though the Government believe the CRaG Act supersedes the Ponsonby rule. Nevertheless, the principles underlying the Ponsonby rule are still the principles that this House should aspire to in properly scrutinising international agreements, particularly when they are so controversial as the agreement we are currently discussing.

I thank my noble friend Lady Hayter for this Question and for her persistence. I trust that she will return to this matter in future debates and in the committee’s future work because the issue itself is not going to go away. I think all noble Lords who have spoken obviously believe that the Government have taken this route of action to avoid parliamentary scrutiny. I would like to have an in-principle defence of the approach the Government have taken because it seems to me that bypassing Parliament undermines Parliament itself and undermines the agreement which has been reached with the Rwandan Government.

My second point is about the agreement. There are a number of basic questions on the agreement’s merit—its cost, its viability, its lawfulness. We have heard that there is a backlog of 140,000 asylum seekers; we have heard the figure of £140 million or more being spent which so far has achieved nothing. It seems to me that the Minister has some serious questions to answer about the merits of the scheme itself, let alone the way the Government are seeking to put this in place. I hope that he can talk about both the principle and the practicalities of the memorandum of understanding that the Government have put in place. I also hope the Minister can reply to the question from the noble Lord, Lord Udny-Lister, about the possibility of a multitude of bilateral agreements for deportation and whether the Government see that as a way forward.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code H) Order 2023

Lord Ponsonby of Shulbrede Excerpts

Tuesday 31st January 2023 Grand Committee

[Lord German (LD)]

My Lords, I want to ask several questions of the Minister, not least because the recommendations to upgrade Code H are in fact non-discretionary—the policy for a code of practice. In other words, the Secretary of State has to transfer these into the code of practice without any subsequent amendment.

I have two questions, the first of which is about process. Code H says:

“This Code of Practice applies to, and only to … persons in police detention after being arrested”.


The word “after” is important, because the first of the powers transferred into the Terrorism Act 2000 in Section 43B relates to the fact that constables “may arrest without warrant”—so this is before the arrest has taken place. There are four bullet points at paragraph 7.5 of the Explanatory Memorandum on the 2019 Act changes. The last one, which the Minister mentioned in his opening speech, is about creating powers to stop, search and detain. Again, such powers are obviously prior to the arrest being made.

If the advice on the code of practice to police officers does not appear in this document, PACE Code H, where does it occur? It cannot occur in this document because these powers are prior to arrest. That is a technical question, but if it is not in Code H, where might it be? It may be in general advice to police officers somewhere else; perhaps the Minister can tell us. Two distinct powers given by the various Acts are prior to someone being arrested; then, of course, as the Minister says, after they are arrested the conditions within the relevant Acts are clearly transferred into Code H. Clearly, if there is no explanation of where they might have advice, that leaves a certain amount of unhelpful discretion to the police, who will want guidance on this very important matter.

My second question relates to Section 43B(1), inserted into the Terrorism Act 2000. I do not want to rehearse the debate that was had when the relevant Act was discussed in this House, but it says that

“a constable may arrest without warrant a terrorist offender who has been released on licence”,

and then gives two conditions—

“if the constable … has reasonable grounds for suspecting that the offender has breached a condition”

and

“reasonably considers that it is necessary … to detain the offender”

because of a public risk of terrorism. I understand why both conditions are there, but I do not understand what advice has been given to police officers and where that advice might be. First, you would have to understand or know that the person was a terrorist offender. Secondly, you would have to understand or know whether they had been released on licence. Thirdly, you would have to understand or know what the licence conditions were for that person to be released on licence.

I understand the reasons. We had the very tragic case that the Minister referred to, but if I were a police constable, knowing that I had these powers but with those conditions, I would want to see some advice in a code of practice as to how I would understand those three conditions prior to my being able to detain a person. I must have reasonable grounds for the offender having breached the conditions of their licence and I must understand the risk of terrorism. The latter is probably much easier to understand—it could well be by observation of the circumstance—but the former would require a police officer to understand and know that this person had a licence. Given that the advice cannot be in PACE Code H, because it is prior to arrest, where, if anywhere, is it? These are important questions relating to how a police officer can operate the code of practice inherent in the primary legislation that we are debating.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this statutory instrument, which revises the PACE code of practice H to reflect the introduction of a new power of urgent arrest by the Police, Crime, Sentencing and Courts Act 2022. As the Minister outlined, this power enables the police to arrest without warrant and detain a previous terrorism or terrorism-connected offender who is suspected of presenting a further terrorism risk to the public. It also updates Code H to reflect changes made by the Counter-Terrorism and Border Security Act 2019.

As the noble Lord said, the horror of the attack at Fishmongers’ Hall in 2019 and a subsequent attack in Streatham is a reminder of the harm that terrorist-risk offenders are capable of. Following these attacks, the Government commissioned the Independent Reviewer of Terrorism Legislation, Jonathan Hall, to review MAPPA, which is used to supervise such terrorist and terrorist-risk offenders. The creation of the power of urgent arrest was recommended as part of this review.

We supported the introduction of this power during the passage of the PCSC Act and we support it now. We believe it is vital to have the right safeguards in place. With the introduction of such powers comes the possibility of unintended consequences or missed opportunities. I look forward to the Independent Reviewer of Terrorism Legislation considering the effect of the introduction of these powers, as well as the other new powers introduced to improve the management of terrorist offenders on licence, and the 2019 powers that Code H now includes.

I was just reflecting on my memory of the attack in Streatham, which is not that far from where I live. I have no inside information on it other than what I read, but I read in the papers various bits of speculation about the officers who were tracking that terrorist offender, who was out on licence; they observed a crime being committed and intervened, and the offender was killed. The speculation I read in the press was about how that process was managed and the huge resource-intensiveness of tracking such people when they are out on licence. Can the Minister say anything about whether this change to the codes of practice within Code H is partly a result of the large resource implications of tracking such offenders when they are out on licence? However, we support the changes.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their contributions.

The noble Lord, Lord German, asked me, first, in essence, where is the guidance for the police pre arrest? Of course, the guidance is operational in nature, so it will be issued by Counter Terrorism Policing and the College of Policing, which will issue it internally. Any guidance for officers is of a highly tactical and operational nature and will therefore obviously have to sit within the police’s own guidance rather than a government-issued code of practice.

On how to determine whether an individual is on licence for a terrorist offence, this will be understood through close working by Counter Terrorism Policing and the Prison and Probation Service, which will include information-sharing and briefing about terrorist offenders on licence. If they breach their licence and are recalled, a warrant will be out for their arrest. Obviously, policemen can find out whether an offender is out on licence by checking their details on the police national computer, which will flag it.

In answer to the noble Lord, Lord Ponsonby, about potential operational constraints on the police because of potentially large numbers involved, obviously, I hope that there will not be a large number of people subject to these powers, but I am quite sure that if Counter Terrorism Policing and more routine and—shall we say, traditional?—policing come up against capacity issues, we will certainly hear about it and come back to debate this in further detail. I fear that I cannot supply any better detail than that at this point. However, I will have a dig and, if I can find anything, I shall come back to the noble Lord in writing, if that is acceptable.

Public Order Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

I am afraid that a secondary element to this general argument is that we have been reminded recently that some police officers abuse their powers—and a minority of police officers have clearly been doing so in a number of cases—and then here are more powers which are rather too easily abused. It is very easy to say to someone, “You are resisting my clear observation that you are carrying something that could be used in a protest.” A new situation is being created in which police officers are given more power over, for example, women, who are encouraged to be cautious about getting into a police car or accompanying a police officer if he says she had better go with him. This is allowing more situations with that kind of problem to arise. It is all completely unnecessary: existing powers can be used in all the threatening or worrying circumstances which this clause seeks to address. We do not need it but, worse than that, it is potentially damaging.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will make only a very brief intervention. I agree with what my noble friend said in her introduction of this group, and also what the noble Lord, Lord Paddick, said about his Amendments 19 and 31. I am looking forward to the Minister’s explanation of Amendment 29 and how that is a more appropriate amendment than Amendments 19 and 31.

One thing I can add to this interesting short debate is as a magistrate who deals regularly with the issue of reasonable excuse, and it is something we have got used to dealing with over many years. The context in which I see that excuse is when someone is carrying a knife or a bladed article. That is almost invariably the defence that one hears when one is in court. That is something that we are used to dealing with. It is also something that there is a lot of public interest in, so changing definitions and giving more scope to more complex laws does not help the courts. The courts have, in these contexts, the defence of reasonable excuse and they are well used to dealing with it. Nevertheless, the amendments in this group have been well presented and I look forward to the Minister’s response.

[Lord Davies of Gower (Con)]

My Lords, the amendments in this group take issue with offences listed in the first five clauses of the Bill, so it might be helpful to set out exactly why the Bill is so necessary and how it differs from existing public order legislation. The Bill seeks to speed up the ability of police to pre-empt, intervene and respond to the evolving tactics we have seen from—what can best be described as—a selfish minority of protesters. It also seeks to establish clear stand-alone offences, which target disruptive and dangerous behaviour, and impose sentences that are proportionate to the harm caused.

I have heard many times that the police already have the powers necessary to deal with disruptive behaviour, such as tunnelling or locking on. I disagree. We have only to look at the high levels of disruption as recently as a few months ago to see that more needs to be done. The Bill provides police with the powers necessary to combat these specific offences while ensuring that those who seek to cause serious disruption on private, as well as public, land are held to account. It is completely unfair that the hard-working public have to face misery and disruption caused by individuals locking on to a road or tunnelling under a building site, only to see the perpetrators arrested several hours after beginning their actions and then let off with a light sentence.

Clauses 1 and 2 are a key part of the Government’s plans to protect the public from the dangerous and disruptive protest tactic of locking on. We have seen protesters who use locking on and who tunnel be acquitted on technicalities. Therefore, it is important to have clear, stand-alone offences for locking on and tunnelling. This ensures that those intent on causing serious disruption for others can be brought to justice quickly and given a proportionate penalty that reflects the harms they have caused. The “going equipped to lock on” and the “going equipped to tunnel” offences enable the police to intervene earlier to prevent serious disruption. Dealing with a tunnel or a lock-on is extremely resource-intensive, taking hours of police time, which could be much better spent tackling other crimes and disorder on our streets. Surely noble Lords would agree that enabling the police to act before the acts are committed is in everyone’s best interests.

The Government are on the side of the public and will act to ensure that the public are protected from these disruptive acts. We welcome Extinction Rebellion’s sensible new year’s resolution to

“prioritise attendance over arrest and relationships over roadblocks”.

However, Just Stop Oil and Insulate Britain are digging their heels in and have committed to continue trampling on the lives of others. Faced with this threat, it is clear to me that Clauses 1 and 2 should stand part of the Bill. Therefore, I respectfully ask the noble Baroness, Lady Chakrabarti, to withdraw Amendment 9.

Amendment 19, tabled by the noble Lord, Lord Paddick, limits the extent of the offence of causing serious disruption by being present in a tunnel to tunnels which have been created through the commission of the offence of causing serious disruption by tunnelling. I thank the noble Lord for tabling this amendment and accept the need for clarity in distinguishing between those who cause serious disruption in a tunnel created for the purposes of or in connection with a protest, and those who cause serious disruption in tunnels such as the London Underground tunnels.

My noble friend Lord Murray previously committed to considering this matter further: subsequently, the Government have tabled Amendments 21, 29 and 30. These amendments provide that the offence of causing serious disruption by being present in a tunnel, as defined by Clause 4, is committed

“only in relation to a tunnel that was created for the purposes of, or in connection with, a protest.”

The Government’s amendments provide clarity in the legislation on the scope of the offence. This means that people who cause serious disruption in tunnels not created for the purpose of or in connection with a protest—such as the London Underground tunnels—would not fall within the scope of Clause 4. In contrast to Amendment 19, it also includes no additional burden for the courts when prosecuting offences under Clause 4, in that they would not be required to show that an offence has occurred under Clause 3 as well.

Finally, Amendment 31 raises the threshold at which an object may be captured within the scope of the “going equipped to a tunnel” offence, as doing so would limit the effectiveness of the offence. We are trying to ensure that the police can act proactively before these harmful tactics are used. The amendment in the name of the noble Lord, Lord Paddick, raises the threshold for intervention too high. In light of this, I hope noble Lords will support the amendments in the Government’s name and reject the other amendments in this group.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we also support these amendments. As my noble friend Lady Chakrabarti made clear in her introduction, her Amendment 38 would remove

“the Secretary of State’s power to make regulations by statutory instrument amending subsection (6) to add a kind of infrastructure or to vary or remove a kind of infrastructure; or to amend section 8 to re-define any aspect of infrastructure included within the new criminal offence.”

As she explained, she is trying to give the Secretary of State a slightly more limited remit to introduce Henry VIII powers, along the lines suggested in her amendment.

The noble Lord, Lord Paddick, has explained his Amendments 39 and 40 very well. I will not repeat his explanation, other than to say that we are in favour of them in general terms.

[Lord Davies of Gower (Con)]

My Lords, Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, seeks to remove the delegated power for the Secretary of State to amend, add or remove infrastructure in the list under the legal definition of “key national infrastructure”. We have heard throughout the passage of the Bill about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power which will allow us to respond effectively to emerging threats. This was the position taken in Committee when this amendment was first tabled, and it is still the Government’ position. I assure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.

I turn to Amendments 39 and 40 tabled by the noble Lord, Lord Paddick. Amendment 39 seeks to narrow the scope of “rail infrastructure” to exclude protests that do not directly impact on the operation of trains, while Amendment 40 seeks to narrow the scope of “air transport infrastructure” to exclude infrastructure that is not essential for the purpose of transporting passengers and goods by air. As was noted when these amendments were considered previously, the scope of the offence as drafted reflects the importance of the continued operation of the infrastructure as defined in Clause 8.

I would be keen to hear from the noble Lord, Lord Paddick, what he deems to be the essential and inessential elements of rail and air transport infrastructure. Rail and air infrastructure are each complex, interconnected systems, and it is not an easy exercise to find rail and air infrastructure that you can describe as non-essential to the running of services.