Illegal Migration Bill

Lord Purvis of Tweed Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, I am a signatory to Amendment 128C, and I again declare my former role as an Immigration Minister in this country. I cannot really see, and I hope I am right, that my noble friend the Minister, or indeed the Government, could refuse to accept this amendment, which seems to be completely in line, as my noble friend Lady Stroud said a few minutes ago, with the declared policies and positions of the Government.

However, I want to clarify with my noble friend the whole question of definitions because I think there is a muddle here, as there has been in a number of interpretations by the Government, about what precisely is meant by a safe and legal route. They seem sometimes to be declaring that these include programmes that are organised by others, such as the United Nations. I was responsible for the 1996 United Nations Bosnian resettlement programme. A very important part of the work of this country is working with international agencies and, indeed, in specific cases, funding special programmes so that we can accommodate those who need to flee areas of repression or aggression. I think that is really a good thing for this country, and I hope that we will always take that approach, but that is not the same as providing facilities in wider parts of the world, where perhaps there is not a well-known conflict going on, but where nevertheless there are individuals who meet the criteria of the 1951 refugee convention but have no way to claim asylum in this country.

I just want to go back, if I may, for a moment or two to the history of how we used to deal with this. I am sure noble Lords will know that before 2011 or thereabouts—my noble friend the Minister will clarify—applications could be made through United Kingdom embassies and consulates in other parts of the world.

Indeed, we have been talking about specifying safe and legal routes. I would argue against that to some extent because if we are going to specify on a discriminatory basis certain places where these routes might be opened, we are falling into the same trap that I have just explained. Programmes may well be available through the United Nations or others and therefore if we are going to introduce these routes, they ought to be introduced widely.

The International Journal of Refugee Law from 2004 gives some of the history here. It says that in early 2002 six European states formally accepted asylum applications or visa applications on asylum-related grounds at their embassies. They were Austria, Denmark, France, the Netherlands, Spain and the United Kingdom. It seems to me that things have changed. When we got to 2011 there was a statement—I do not know whether it was made or printed or referred to. It said:

“As a signatory to the 1951 Refugee Convention, the UK fully considers all asylum applications lodged in the UK. However, the UK’s international obligations under the Convention do not extend to the consideration of asylum applications lodged abroad and there is no provision in our Immigration Rules for someone abroad to be given permission to travel to the UK to seek asylum. The policy guidance on the discretionary referral to the UK Border Agency of applications for asylum by individuals in a third country who have not been recognised as refugees by another country or by the UNHCR under its mandate, has been withdrawn”.


That evidence is quite interesting because at some point—and again my noble friend will have it all available to tell us—we made a clear decision to reverse what had been practice for many years. Certainly, when I was the Minister, it was the practice that we had the ability in our embassies and consulates—people who had the discretion to be able to consider at first instance an asylum application. I recommend strongly to my noble friend that we reintroduce this, if for no other reason than to comply with the clear statements the Government have made that we can avoid the arguments and stop those boats by having a process that has a safe and legal route.

Finally, I think I am not alone in this because a number of my honourable friends in the other place have referred to it. I refer particularly to David Simmonds MP, who said:

“We must also not be afraid to look at and explore innovative solutions. For example, we could give asylum seekers the chance to have their applications processed in British Embassies around the world”—


he goes on and I do not quite agree with his last bit—

“or perhaps online”.

As far as I am concerned, to meet the terms of the convention it is important that these things are done on a face-to-face and personal basis. Online does not appeal here, although I am sure the technology is being pressed on us. I certainly would not suggest for one moment that we introduce AI in such decisions. My honourable friend Pauline Latham has also spoken of her support for the processing of asylum claims in British embassies.

I know this is a complex Bill and I have not spoken in Committee before. I believe very strongly, however, that there are solutions here which would satisfy the determination of the Government—and of us all—to stop the suffering of people who cross the channel in those boats. Let us be pragmatic and sensible about it and let us use the resources we have available and are wasting in so many other ways on these matters. Let us use them and focus our attention on providing those safe and legal routes at the very places around the world where the United Kingdom has presence and representation.

[Lord Purvis of Tweed (LD)]

My Lords, I am glad to follow the noble Lord and his very interesting contribution. In many respects, it was a very persuasive argument and, I believe, a very persuasive preparatory argument for Amendment 131 in my name, supported by my noble friend Lord Paddick and the noble Lord, Lord Carlile. It seeks to at least present a mechanism by which we would be able to realise the case that the noble Lord has made. On Amendment 128C, I have a slight concern with the way in which the Government may get around it, which I will address in a moment. At the outset I reiterate an interest that I have, in that I am currently deeply involved in working with civilian groups within Sudan and have supported an anti-trafficking project in the Horn of Africa through to the Gulf.

I am very happy to support Amendment 128B and the way in which the right reverend Prelate opened this debate so clearly today, making the case, which I believe is unanswerable, that the current schemes should not be included within any hard cap mechanism. In debates, many of my noble friends and colleagues around the House have raised the difficulties in getting some of these schemes up and running and, as the right reverend Prelate indicated, the limited scope of some of them. It would have been a tragic loss for many people if we had wrapped up these schemes in a hard cap, because Clause 58, which I argue should not be in the Bill, leaves enormous discretion for the Government. As the Refugee Council indicated, the Government could establish a cap of, say, 10,000 people and would comply with it if just 10 entered. Even a cap, an upper limit, is not a commitment to provide support and refuge for the individuals within that overall cap number.

Amendment 131 is very much designed to be a brake against smuggling and trafficking. It is meant to remove incentives for crime and is, in addition, an effective means of allowing access to apply for the very kind of support that has been called for so far in the debate. On that basis, I also commend my noble friend Lady Hamwee, who made arguments for this in debates on the Nationality and Borders Bill last year. The Government accept the case for a non country-specific emergency scheme for people who qualify for asylum in the UK. However, not only have they accepted the case but they have also, I believe, sought to misrepresent the situation and suggest that it is available already in many instances.

My first question for the Minister is that if it is the Government’s position that they will consider new routes once the boats have stopped, at what level of crossings over the channel will the Government consider that the boats have stopped? Is it in their entirety or do the Government have an indicative level under which they would then trigger the mechanism they have indicated, which is to consider new safe and legal routes? Given that, as my noble friend Lord Scriven has pointed out on many occasions, this is an issue not simply about cross-channel crossings but about road access, rail access and misuse of papers, what is the level of this being stopped before which the Government will indicate new safe and legal routes?

I indicated earlier that the Government seek to misrepresent the situation. On the morning of 26 April, the Home Secretary said to Sky News:

“If you are someone who is fleeing Sudan for humanitarian reasons, there are various mechanisms you can use. The UNHCR is present in the region and they are the right mechanism by which people should apply if they do want to seek asylum in the United Kingdom”.


On the same day, in the House of Commons, the Minister, Robert Jenrick, said:

“The best advice clearly would be for individuals to present to the UNHCR. The UK, like many countries, works closely with the UNHCR and we already operate safe and legal routes in partnership with it. That safe and legal route is available today”.—[Official Report, Commons, 26/4/23; col. 774.]


Clearly, that was awful advice because, on the same day, the UNHCR issued a statement:

“UNHCR is aware of recent public statements suggesting that refugees wishing to apply for asylum in the United Kingdom should do so via the United Nations High Commissioner for Refugees’ respective offices in their home region. UNHCR wishes to clarify that there is no mechanism through which refugees can approach UNHCR with the intention of seeking asylum in the UK”.


The Government seemed to accept that because, in the evening, Foreign Office Minister Andrew Mitchell was on Sky News, and he was asked for clarification on what safe and legal routes a Sudanese person could use to claim asylum in the UK. He said:

“Well, at the moment those safe and legal routes don’t exist”.


So after what was said in the Commons and on Sky News in the morning, after clarification in the afternoon it was clear by the evening that safe and legal routes do not exist. This is the political environment in which we are having to seek clarity from the Minister today with regard to the Government’s position.

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[Lord Murray of Blidworth (Con)]

The right reverend Prelate is right to point to the fact that these things are always a joint effort. The Home Secretary of the day will consult, and consider input, so yes, all those words would be applicable in my view. Clearly, ultimately the scheme has to come from the Home Office, but it will be done following appropriate consultation with and the involvement of interested parties.

[Lord Purvis of Tweed (LD)]

Will the Minister give way on that point?

[Lord Murray of Blidworth (Con)]

If the noble Lord will forgive me, I should probably, in order to have a more coherent speech, take his more general points at the end. I am conscious that we need to make progress, not least because we do not wish to be here into the small hours.

As I say, the report described in Clause 59, which will be laid before Parliament within six months of the Bill achieving Royal Assent, will clearly set out the existing safe and legal routes that are offered, detail any proposed additional safe and legal routes, and explain how adults and children in need of sanctuary in the UK can access those routes. This clause is being introduced to provide clarity around the means by which those in need of protection can find sanctuary here.

Through the report, we will also set out any proposed additional safe and legal routes which are not yet in force. While a range of routes is offered at present, we believe it important to consider whether alternative routes are necessary and, if so, who would be eligible. In recognition of the different needs of children and adults in need of protection, the clause will require the report to set out which routes are accessible by adults or children.

It is against this backdrop of the Government’s approach to expanding the existing safe and legal routes that I now turn to the amendments in this group.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for giving way. My intervention is pertinent to that clause. Can he confirm, first, what I had indicated from the Independent Commission for Aid Impact: that it was the Home Office that asked for the UNHCR to direct the resettlement scheme to be focused on Afghans only, therefore closing it down for other countries; and, secondly, that when it comes to what the Government could consider to be new and safe and legal routes, they could simply be expanding some of the funding available for the UK resettlement scheme, because that is what the Government currently define as a safe and legal route, rather than it being new country routes?

[Lord Murray of Blidworth (Con)]

On the first point, I do not have that detail to hand so I will go away and find that out and write to the noble Lord. But on the second point, obviously, the UK resettlement scheme is a general scheme to take refugees who have been identified by the UNHCR and in that sense it is not geographically specified. Obviously, these are all issues which would be considered in the report provided for under Clause 59, so the noble Lord is right to identify that.

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[Lord Murray of Blidworth (Con)]

I clearly recognise the points the noble Lord makes—that it is believed that not providing a visa route of the type described in the amendment will damage our international reputation—but no countries that I am aware of currently have a visa route of the type suggested. I am afraid that this is a consideration to be weighed in the balance. It would seem irresponsible not to consider the potential extreme cost of the proposal.

[Lord Purvis of Tweed (LD)]

The Minister should not be conflating the two amendments: they are distinct amendments with distinct mechanisms and purpose behind them, so it is a wee bit cheeky of him to do that. As for an estimate of some of the costs, can he do me a deal now in the Committee? I am not sure if this is able to be negotiated across the Committee, but I will show him mine if he shows me his before Report. He needs to present the impact assessment, which will be the Government’s estimate of the tariff costs for their UK resettlement scheme expansion, which he is proposing, to be part of a new safe and alternative or additional safe and legal route. I will use the basis of the central core estimates of what the Home Office is estimating to be the expansion necessary in the tariff funds available, which are scored against overseas development assistance, and I will use that on the threshold of what a humanitarian visa scheme might be. His scheme suggests to an Iranian woman that she has to flee to a neighbouring country to go to the UNHCR; then she is processed by the UNHCR, to be resettled in the UK. Our scheme allows that woman within Iran to go through a similar threshold to be able to access the UK. Which is most efficient?

[Lord Murray of Blidworth (Con)]

I look forward to reading the noble Lord’s document when it arrives.

[Lord Purvis of Tweed (LD)]

In due course.

[Lord Murray of Blidworth (Con)]

In due course— I am very grateful. All these questions make it clear that bringing up legal migration is irrelevant to the Bill, a point that relates to comments made by the noble Lord, Lord Paddick. The issue for the Bill is that the UK Government and local authorities have limited capacity to provide or arrange accommodation, hence a sensible cap is needed. There are other questions we need answers to. Are these safe passage visas to be given to young single men at the expense of those in more pressing need of sanctuary in the UK?

Illegal Migration Bill

Lord Purvis of Tweed Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Cashman (Lab)]

My Lords, like my noble friend Lord Touhig, I was not going to speak to this group of amendments because the arguments have been put so brilliantly. However, I cannot remain silent. I will be brief.

At Second Reading, I said that I could not believe that we were debating such a piece of legislation in a British Parliament. This afternoon, I cannot believe that we are having to argue for basic, decent, fundamental principles for those who are most vulnerable, and particularly for unaccompanied children who, as others have said, have left their country because they had no other choice. The reality of what they were facing drove them from their families, from their homes, and from a place where they felt that they would be safe and where they belonged.

I merely say this to the Government. The Government have two options: to work with those who have tabled these amendments to make a disgusting piece of legislation less so, or to explain to me and other noble Lords why these amendments are unacceptable and how this Bill will not diminish the rights of the most vulnerable children who present themselves on our shores.

[Lord Purvis of Tweed (LD)]

My Lords, having listened to the debate, I have three questions for the Minister.

First, if I understand the Government’s position correctly, the use of punitive measures against unaccompanied children in this Bill is for a deterrent effect. That is what the Minister said at Second Reading, and it has been a consistent line. For the Government to come to that view, they must have information about the numbers of unaccompanied children that the Bill will affect—otherwise it would have been impossible for them to have determined that this policy will be a deterrent. What is the Home Office’s core estimate of how many unaccompanied children it will require facilities for under this Bill? I know that the Minister has that information in his pack. He must tell the Committee what it is.

My second question is on the Government’s assertion that this measure complies with the UN Convention on the Rights of the Child. The Government say that they will act in the interests of the child. At the moment, the UN checklist is the mechanism used to determine the best interests of the child. Will the Minister commit to the Committee that the UN checklist for the determination of the best interests of the child will be used under the terms of this Bill? If the Government’s plan is for it not to be used, like the noble Lord, Lord Hannay, and others I fear that they will not be acting in the interest of the child according to the UN convention. This is particularly relevant given that the policy shift is moving away from determining what will be the safety of a child and towards what is considered to be a safe country. That is a very radical change. For example, there are a number of countries on the Government’s safe list that they are today advising against all travel to. Therefore, a British official, or any British charity, may seek to accompany an unaccompanied child back to a country that is considered to be safe while the Foreign Office advises against all travel to that area. How can that be consistent? Last year, I visited the Rwanda reception centre in Kigali. There were no children’s facilities. Can the Minister confirm that there are now?

My third question is this. The Government’s fact sheet on children states that:

“For any unaccompanied child who is removed when under 18, we will ensure that adequate reception arrangements are in place where the child is to be removed to”.


That is not true. What in this Bill provides for the assurance and the duty that there will be reception arrangements in place for any unaccompanied child? There is no mention of that in the Bill. The fact sheet cannot be correct if the Bill does not state that this will be the case. If the Minister can tell me where in the Bill there is a duty to ensure that there are reception facilities and reception arrangements in place for a child to be removed to, I would be very grateful.

[Lord Paddick (LD)]

My Lords, my noble friend Lady Bakewell of Hardington Mandeville added her name to Amendments 14 and 22 but is having to deal with matters in Grand Committee this afternoon, and means no disrespect to this Committee. My noble friend Lord German comprehensively set out the problems with this clause and why it should not stand part of the Bill. Having said that, we also support all the amendments in this group.

On 8 May 1995, Nelson Mandela said:

“There can be no keener revelation of a society’s soul than the way in which it treats its children”.


If the Government are serious about implementing the provisions of this Bill in relation to children, what would Mandela have said about our society’s soul? An infant, or even a child yet to be born, brought into the UK by a parent and by what the Home Office calls an irregular route, or an unaccompanied child not thinking of all the consequences—because children, some as young as 10 years-old, do not think about all the consequences of their actions—will never be able to acquire the right to remain in this country and will never be able to work. They will potentially be detained until they are 18 years-old and then deported. Many of them will have had no say in determining the circumstances that they find themselves in or will not have thought about the consequences of their actions. How can the proposals in the Bill be the actions of a society that describes itself as civilised?

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[Lord Murray of Blidworth (Con)]

Clearly, this Bill affects every person who falls within the four categories described in Clause 2, and that is all people who enter by any illegal method. Of course, at the moment, as we know, the majority of such entry is effected by small boats.

For any unaccompanied child who is removed while under 18, we will ensure that adequate reception arrangements are in place where the child is to be removed to. It is not simply a case of putting them on a plane back whence they came.

[Lord Purvis of Tweed (LD)]

I would be grateful for the Minister to respond to my point. I read from the factsheet, as he has just done. Where in the Bill is that made that a requirement?

[Lord Murray of Blidworth (Con)]

As I have already made clear, the answer is that the department has stated in both Houses that this is our position. The adequacy of reception arrangements is not something you would expect to see in the Bill, and it is consistent with the present regime that is operated in relation to unaccompanied asylum-seeking children.

[Lord Purvis of Tweed (LD)]

My Lords—

[Lord Murray of Blidworth (Con)]

Forgive me. I must make progress. Doubtless, the noble Lord will have an opportunity at the end of my remarks.

Taking these measures will send a clear message that children cannot be exploited and cross the channel in small boats for the purpose of starting a new life in the UK. The clause provides the circumstances in which it may be appropriate to remove an unaccompanied child. However, the Government consider it necessary to be alert to the people smugglers changing their tactics to circumvent the Bill. As such, it is appropriate to have a power to extend the circumstances in which it would be possible to remove an unaccompanied child via regulations. This is very much a reserve power. We have to be mindful of changes in the modus operandi of the people smugglers. I cannot give the noble Baroness, Lady Lister, examples now of how the power might be exercised but I can assure her that such regulations will be subject to the affirmative procedure and therefore will need to be debated and approved by each House.

Clause 3 also sets out the power to make provisions for other exceptions to the duty to remove via regulations. This provision is important for providing the flexibility to make additional exceptions to the duty should we not want the measures in the Bill to apply to certain categories of persons. I will give one possible example of this: a person who is subject to the duty to make arrangements for removal may also be the subject for extradition proceedings and it would be appropriate for an extradition request, if approved, to take precedence over the duty to remove in Clause 2.

Amendments 14, 15 and 17 in the names of the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, seek either to exclude unaccompanied children altogether from the duty to remove or only permit the removal if it was in their best interests, even when they reach 18. Amendment 22 in the name of the noble Lord, Lord Dubs, covers similar ground. It seeks to provide for asylum and human rights claims from unaccompanied children to continue to be admissible within the UK.

All these amendments would undermine the intent of the Bill. As I have indicated, if we fill it with exceptions and carve-outs it will not achieve its aims and will serve to put more children at risk as the people smugglers would seek to fill the boats with even more young people, putting further lives at risk and splitting up families. I can confirm that since January 2018 around one-sixth of arrivals on small boats have been children aged 17 and under. We do not want an increase in this proportion or in the absolute numbers. Our asylum system is under increasing pressure from illegal migration, and the Government must take action to undercut the routes that smuggling gangs exploit by facilitating children’s dangerous and illegal entry into the United Kingdom, including via dangerous routes such as small boats.

Stopping the boats is in the best interests of small children who might otherwise make these dangerous and unnecessary journeys. In response to the noble Lord, Lord Kerr, and the noble Baroness, Lady Bennett, who raised the issue of a lack of safe and legal routes, I remind the Committee that the safest course for children and adults alike is to seek sanctuary in the first safe country they reach. These amendments would undermine the central premise of the Bill that if one comes to the UK via an illegal route, one will be removed and not permitted to remain in the UK and build a life here. The amendments will increase the incentive for adults to claim to be a child and encourage people smugglers to pivot and focus on bringing over more unaccompanied children via dangerous journeys. The effect would be to put more young lives at risk and split up more families. It is, I say again, in the best interests of children to enact these provisions and stop the boats. It is these amendments that will encourage the people smugglers, not the provisions in the Bill.

The noble Lords, Lord German, Lord Purvis and Lord Coaker, pressed me to set out the evidence underlying the purpose of the Bill. It is the Government’s view that if a person arriving illegally in the UK is faced with the prospect of being detained on arrival and swiftly returned to their home country, or removed to a safe third country, they will not pay the people smugglers thousands of pounds to provide them with passage across the channel.

We recognise the particular vulnerabilities in relation to unaccompanied children. That is why the Bill provides that the duty to make arrangements for removal does not apply until they reach adulthood. However, as I have explained, the Bill confers a power to remove unaccompanied children. This is not new but reflects current policy. This will be exercised, as I have said, in very limited circumstances, taking into consideration the best interests of the child. Following amendments brought by the Government at Report in the Commons, this clause now expressly sets out the circumstances in which the power to remove unaccompanied children may be exercised.

Turning to Amendment 16A, I first comment that the noble and learned Baroness set out what is likely to be an exceptional scenario. That said, she has a point in that an unaccompanied child who is subsequently adopted in the UK by a British citizen has an automatic route to British citizenship. They would therefore not be subject to the citizenship bans in Clauses 30 to 36. In this scenario, we agree that it would not be appropriate for the duty to remove to be applied to that child. We can address this by using the regulation-making power in Clause 3(7) to provide for exceptions to the duty to remove. An amendment to the Bill is, therefore, not required. In addition to adopted unaccompanied children, such regulations would also cover any other cohorts to whom the duty would apply but who exceptionally obtain British citizenship following their arrival in the UK. I hope that the noble and learned Baroness and my noble friend Lord Cormack will be reassured by this.

Amendment 18 from the noble Baroness, Lady Hamwee, is on one level unnecessary in that the regulation-making power in Clause 3(7) could be used to deliver the desired outcome. However, I come back to the aim of the Bill: namely, promptly to remove from the UK those who meet the conditions in Clause 2. We have brought forward a robust legal scheme that will enable us to do just that and I urge your Lordships not to add caveats, exceptions and exemptions to the Bill such as to make the scheme unworkable.

In answer to the noble Lord, Lord Alton, I should add that I very much value the continued dialogue we are having with the Children’s Commissioner for England. She recently met the Immigration Minister and me, and I am due to meet her again soon to discuss the Bill.

[Lord Murray of Blidworth (Con)]

Clearly there are other provisions in relation to the standards of detention in the detained estate in relation to children. In the event that they are not detained, the usual prevailing regulations will apply and I am happy to write to the noble Lord with more detail in relation to that.

The noble Lord, Lord German, referred to the recommendation of the Delegated Powers Committee in relation to the regulation-making power in Clause 3(7). We are studying that committee’s report carefully and aim to respond before Report.

The noble Lord, Lord Coaker, asked about the use of force. We will address that point when we reach Amendment 70 on Wednesday.

In conclusion, Clause 3 adopts an appropriate balance in respect of unaccompanied children and, in those circumstances, I invite the noble Baroness, Lady Meacher, to withdraw her amendment.

[Lord Purvis of Tweed (LD)]

The Committee noted the Minister confirming that there would be no duty on Ministers to ensure that adequate reception arrangements are in place for an unaccompanied minor to be received. That is tragic. Can he also answer my question with regard to the fact that the only place at the moment with which the Government have an MOU is Rwanda? Are there any facilities for children in Rwanda that the Government have agreed-?

[Lord Murray of Blidworth (Con)]

As I say, the occasions when a child will be removed will be very exceptional and the two cases that are envisaged are for family reunion, therefore reception facilities will not be required, or if it was a return to a safe country, and that of course would not arise unless it was a Rwandan child. In those circumstances, I do not see the particular purpose of the noble Lord’s question.

[Lord Purvis of Tweed (LD)]

The other category does apply. If it cannot be to the safe country of origin, it applies to the schedule countries. The only scheme that we have at the moment, if it is not a safe country, would be Rwanda, so it is a simple question: are there any facilities for children in Kigali which the Government have agreed?

[Lord Murray of Blidworth (Con)]

As I said, the power will be exercised very exceptionally. I am happy to go away and look into that point, and I will write to the noble Lord on it.

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[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I hope I can be relatively brief in introducing a small group of technical amendments to the Bill and perhaps, if I may say so, allow the House to take a short break from the understandably strong feelings generated by the discussion.

The amendments essentially address three issues. The first is to define the term “national” as including a citizen of the relevant country. Thus Amendment 19 inserts a Bill-wide definition of the term “national”. The effect is that any reference to a country of which a person is a national includes a country of which a person is a citizen. In not all countries are citizenship and nationality exactly the same. Similarly, a reference to a person not being a national of a country is to be read as also referring to a person not being a citizen of that country. Amendment 19 ensures that the Bill is consistent in this regard. Amendments 16, 24, 28, 99 and 141 are simply consequential amendments. Amendment 128 makes a similar change to Section 80A of the Nationality, Immigration and Asylum Act 2002.

The second group of technical amendments ensures that the word “court”, where it appears in the Bill, includes a tribunal. That is in relation specifically to Amendment 25A, which refers to the definition of an application for judicial review. The definition of the application for a judicial review in Clause 4(6) is extended so that it covers an application to a tribunal. That will specifically be the judicial review jurisdiction of the Upper Tribunal or the Special Immigration Appeals Commission.

The substantive issues about the scope of judicial reviews—whether they are non-suspensive or not, and the related provisions of Clause 52 and 55—will, I am sure, be debated in due course. The effect of Amendment 25A, and the associated Amendments 115C, 116A, 117A, 123A and 123B, is to make it clear that the relevant provisions in each case apply to tribunal proceedings, especially proceedings in the Upper Tribunal, as they do to proceedings in the High Court or the Court of Session.

Finally, the third group of amendments includes Amendments 29, 31, 32, 33, 34 and 38, which relate to the country to which certain persons who satisfy the conditions in Clause 2 may be removed to. Effectively, they treat persons who hold a passport or an identity document from the country in question as if they were nationals or citizens of that country. If, for example, an Indian national had a French identity document, they could be returned to France, assuming that there were no exceptional circumstances preventing their removal there. In other words, it is simply to treat persons who have obtained an identity document in the same way as they would be treated were they a national or citizen of that country.

I am happy of course to deal with any points that arise, but I do hope that these relatively technical amendments find favour with the Committee, and I beg to move Amendment 16.

[Lord Purvis of Tweed (LD)]

I will just ask the Minister for clarification with regard to countries that we do not recognise or areas where there are territorial disputes. Two of the main areas people are coming to the UK from, which the Government wish to stop, are conflict-afflicted areas because of territorial disputes, where the UN has a particular mechanism of providing humanitarian identification.

Is it the government position that all those people will have to come from a state that we recognise? By definition, many of the asylum seekers are seeking asylum because they are being persecuted because they are on one side of a territorial dispute—some of these geographical areas I have visited. The Government in this Bill now seem to be indicating that they will come to a side with regard to which identification documents, either national or citizenship, they will recognise. Why is this the case?

[Lord Bellamy (Con)]

My Lords, the proposed amendments are to cover the technical situation where somebody who is not necessarily a citizen or a national happens to hold an identity document of that country, and therefore—almost by definition, but certainly by strong presumption—is clearly someone who has a close relationship with that country. Assuming it is a safe country and that there are no other circumstances that might create an exception, that is a place to which they should normally be returned. If, as I think the question is posing, there are real risks in sending that person back to a particular country, the procedures in the Bill kick in. That would be a question of fact in each case.

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[Lord Horam (Con)]

No, I am just saying that if the amendment were accepted, it would be entirely inimical to the purpose of the Bill.

[Lord Purvis of Tweed (LD)]

My Lords, I think, to some extent, that that is the point of the amendment. I am scared of dentists, so I have no desire to rush into a debate about dentistry, but I was waiting because at least from the Conservative Benches we heard a speech. I was counting how many. Every one had voted for this Bill, but it is amazing how many are coy when it comes to defending what is going to be the reality: that if a young woman is trafficked from a war zone, is raped on the way and arrives in the UK having been lied to, the response is no longer what had been the case; namely, that a first responder in assessing her needs would refer her to protection—the British way. Now, the first responder will say, “You have no rights under modern slavery or trafficking legislation in the UK at all. Not only that but you will be detained and you will be deported”. So, please, can we have some defence of this from the Conservative Benches? If they are not going to defend it, please do not vote for it. Only vote for something that you are willing to defend. It might just be that if the whole purpose of the Bill, as the noble Lord, Lord Horam, said, is deterrence, why stop here? If it is going to be deterrence for an emergency, why stop at this measure? If the Government act in an emergency on a situation of great importance and it is to deter, should it not be on the basis of evidence?

We heard earlier from the Minister saying that one person’s evidence is another person’s assertion. He did not say exactly that; I am putting words into his mouth so that I can disagree with them, but he basically said, “Well, it’s our view that this is the case”.

It was in 2019 that the Government promoted with fanfare a £10 million policy centre. The government press release said:

“Efforts to uncover the true scale of modern slavery, expose more trafficking networks and better inform our action to stamp out these crimes have been boosted today following the government’s investment of £10 million to create a cutting-edge Policy and Evidence Centre for Modern Slavery and Human Rights”.


That was universally welcomed. The Government said that our response to this crisis would be evidence-led and that we would then act on it. There was universal support for that.

That centre—the Modern Slavery and Human Rights Policy and Evidence Centre—which is still receiving Home Office funds in 2023-24 to do this job and inform the Government, says of the Bill:

“Thousands of potential victims of modern slavery may be denied protections by the modern slavery provisions in the Bill. This will include people for whom their entry to the UK is an integral element of the criminal offence of trafficking committed against them”.


It goes on to say:

“The need for these provisions is predicated on the UK Government’s assumption that people are ‘abusing’ the modern slavery system, and that the system is an incentive for illegal migration to the UK. The available evidence questions both of these assumptions”.


Finally, it says:

“The modern slavery measures in the Bill are incompatible with the UK’s obligations”.


I would rather drive a coach and horses through proposals from the Government that are not based on evidence and put in their place evidence-based policies that are likely to work. I declare an interest: I have supported schemes in the Horn of Africa through to the Gulf which are trying to support victims of human trafficking and forced labour.

The Bill will not only not work; it will undermine our reputation around the world. That is shameful. It is not only shameful for our global reputation—I hope we can rebuild that—but it is even more shameful for that young woman who was lied to, trafficked to the UK and would now effectively be a double victim.

[Lord Paddick (LD)]

My Lords, we support all the amendments in this group. As many noble Lords have said, victims of slavery or human trafficking should not be further victimised by the provisions of the Bill. As many briefings with which noble Lords have been provided—for which I personally am very grateful—have pointed out, these provisions play into the hands of traffickers and perpetrators of modern slavery. Victims will face the dilemma of further exploitation or deportation, and the criminals will use the provisions in the Bill to enforce their hold on their victims, as the noble and learned Baroness, Lady Butler-Sloss, said. Speaking as a former police officer, I say that it is difficult enough to get victims to give evidence in court, let alone victims of modern slavery or trafficking who have been deported to another country.

As the noble Lord, Lord Hunt of Kings Heath, said, referrals to the national referral mechanism are made by officials, making abuse of the system unlikely. That is reinforced by the fact that a very high proportion of the claims are actually supported.

For the reasons the noble Lord, Lord Anderson of Ipswich, gave, we agree with the conclusions of the Constitution Committee that the cumulative impact of the ouster and partial ouster provisions in the Bill give rise to very considerable and, I argue, dangerous constitutional implications. As the noble Lord, Lord Carlile of Berriew, has said, this could have potentially fatal consequences for individuals.

The effects on physical and mental health of the Home Office’s policies of placing people in limbo are well documented. We support the amendment in the name of the noble Lord, Lord Dubs, to limit the damage by placing a six-month limit on refusal to consider a protection claim or human rights claim. In doing so, we agree very strongly with the comments of the noble Lord, Lord Kerr of Kinlochard. For the reasons my noble friend Lord German has explained, we believe that this clause should also not be part of the Bill.

So far as emergencies are concerned, is it not the case that the only emergency is the huge backlog of undecided asylum claims—and that it is an emergency which is entirely the responsibility of the Home Office?

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As I have said, it is a sad fact that the protections that the NRM provides are open to misuse and could act as an incentive for those making dangerous journeys and offer a loophole for human traffickers. I should stress that these measures are of course time-limited, lapsing automatically after two years, subject to an assessment of their continued necessity, to reflect the exceptional nature of the crisis.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister. I am listening very carefully to what he is saying regarding the loophole. My understanding is that a referral to the NRM can be made only by a first responder authorised by the Home Office; that first responders have to be certified for their professionalism by the Home Office; and that the referral mechanism goes to a dedicated individual within the Home Office. Why is the Home Office so incompetent that it is allowing this system to abuse itself, given the fact that only the Home Office and first responders can refer?

[Lord Murray of Blidworth (Con)]

It is not the Home Office abusing itself—to use the noble Lord’s phrase. The reality is that it is the large number of claims made by people advised to make claims, often at the last minute, in order to delay removal. When people are referred to the national referral mechanism, they give an account of slavery that then requires investigation. A threshold is applied that means that the allegations are looked into, and the number of people making applications now has given rise to the length of time to determine those claims.

If I may, I will respond to points raised by the noble Lords, Lord Alton and Lord Morrow.

[Lord Purvis of Tweed (LD)]

If I may—

[Lord Murray of Blidworth (Con)]

I will come back to the noble Lord, Lord Purvis, at the end. I can confirm that removing this incentive is compliant with our international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings—ECAT. Indeed, ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order. There is a clear and unprecedented threat to public order through the loss of lives and the pressure on public services that illegal entry to the UK is causing. I again remind noble Lords that the number of small boat crossings has risen from 8,500 in 2020 to over 45,000 last year. We will have a fuller debate in respect of the modern slavery provisions when we reach Clauses 21 to 28 in Committee, but I cannot agree to the noble Lord’s proposition that the foundation of those provisions in subsection (1)(c) be removed from the Bill.

Amendment 20, spoken to by the noble Lord, Lord Carlile, seeks to strike out subsection (1)(d), the effect of which would be to enable any judicial review to put a block on removal until the legal proceedings had been concluded. It seems to me that the key words—and perhaps I could invite the noble Lord to refer to the Bill—are in Clause 4(1)(d), which relates to an application for judicial review in relation to their removal. As my noble friend Lord Horam indicated, such an amendment would again undermine a key feature of the scheme provided for in the Bill. We must stop the endless cycle of late and repeated challenges that frustrate removal under the current law. Of course, it is right to say, too, that there is no general block on non-suspensive judicial review provided for in the Bill.

The Bill provides for two types of claims that would suspend removal, and we will come on to those in due course in Committee. Those provisions provide sufficient remedies to challenge a removal notice and afford the necessary protection to a person suffering serious and irreversible harm were they to be removed to the specified third country. All other legal challenges, whether on ECHR grounds or otherwise, should be non-suspensive. Therefore, Clause 4(1)(d), read with Clause 52, does not oust judicial reviews; those provisions are simply making it clear that any judicial review cannot block removal.

As regards Amendment 21, tabled by the noble and learned Lord, Lord Hope of Craighead, and spoken to by the noble Lord, Lord Anderson, I have already indicated that inadmissibility is not a new concept. It has been a feature of the UK asylum system for some time and is already enshrined in the Nationality and Borders Act 2022. While I welcome the Constitution Committee’s scrutiny of the Bill, I cannot accept its characterisation of the provisions as having significant rule of law implications. What does have significant implications for the rule of law, I suggest, is tens of thousands of people arriving on our shores each year in defiance of immigration laws. These individuals should be claiming asylum in the first safe country they reach, and, in these circumstances, it is legitimate to declare any protection claims inadmissible to the UK system.

The noble Lord, Lord Anderson, asked what would happen to an asylum or human rights claim that had been declared inadmissible, but where the person had had their factual or suspensive claim accepted. In such a case, the person’s claim would be considered under the existing law. That might include existing inadmissibility provisions. I again remind the Committee that inadmissibility is a long-standing process intended to support the first safe country principle. It is an established part of the international asylum procedures applied across the EU and specifically provided for in UK law, most recently in the strengthened provisions introduced in the Nationality and Borders Act 2022.

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[Lord Murray of Blidworth (Con)]

Forgive me; I intended to address the noble Lord’s point in relation to that. Obviously, the provisions in Clause 4 make specific reference to the power to remove children, which is contained in Clause 3. That in itself is a safeguard to protect the welfare of children. It operates in a way that promotes the interests of children, I suggest, but I am happy to look further at that point and will take it away.

[Lord Purvis of Tweed (LD)]

Can I clarify the point that I was making? The Minister alluded to maybe coming back to me. He implied that the problem arose with those who claim, when arriving here under what the Government say is an illegal route, that they are victims of trafficking. The review of that happens only after a referral is made, and there cannot be a self-referral. He seemed to blame the threshold on which that assessment is made as to whether a first responder then submits that person to the NRM. That threshold is the Home Office threshold and the first responders are Home Office- licensed. Why does the Minister think that the Home Office is getting it so wrong?

[Lord Murray of Blidworth (Con)]

I am afraid that I disagree. The Home Office is not getting it wrong. As I already set out in my remarks, the numbers of people claiming to have been modern slaves in this scenario indicates that there is extensive abuse. I do not think that the noble Lord could say anything else, looking at the very persuasive statistics of people in detention. I simply do not agree with him on that point.

[Lord Purvis of Tweed (LD)]

If we have found that there is no loophole in the system, that is good—so it is just the numbers. Therefore if the number of those who are trafficked goes up, that is the problem. It is not that there is a loophole in the system meaning that a higher proportion are falsely claiming that they are being trafficked. What message does that say around the world? The UK is now blind to the individual merit of a young woman being trafficked if there are many young women being trafficked—that is when we close our doors.

[Lord Murray of Blidworth (Con)]

That is not the case. Much as we might wish it to be, the simple reality, I am afraid, is that our modern slavery protections are being abused. The measures in the Bill directly address that.

Student Visas

Lord Purvis of Tweed Excerpts

Thursday 25th May 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I refer the noble Lord to the answer I gave some moments ago. It is worth saying, in relation to the first part of his question, that these changes will ensure that the UK’s higher education establishments are focused on recruiting students based on economic value and not on dependants, whose value in terms of student fees and wages is minimal. We have been successful in delivering our international educational goal of hosting up to 600,000 students per year by 2030 almost a decade earlier than planned and expect universities to be able to adapt to reduce dependant numbers.

[Lord Purvis of Tweed (LD)]

Will the Minister answer my noble friend’s question about the two countries? Also, the current rules, which the Government are going to end, supported by the Labour Party, state:

“If you have a child while you’re in the UK, they do not automatically become a British citizen. You must apply for your child’s dependant visa”.


Can the Minister please reassure me that, under the Government’s plans, babies are not going to be separated from their parents?

[Lord Murray of Blidworth (Con)]

The two countries that send the most students with dependants are Nigeria and India. Our points-based immigration system prioritises skills and talent over where a person comes from, in any event. We consider any impact of our changes proportionate in achieving the overall aim of reducing net migration and allowing dependants only for a specific cohort of students with the types of skills the UK is specifically seeking to attract to assist economic growth. In answer to the second part of the noble Lord’s question, on whether one would separate a mother from a child, obviously every case is fact-specific but the principle remains that if you apply for a student visa for a course other than a research graduate study course, you are not entitled to bring a dependant.

National Security Bill

Lord Purvis of Tweed Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, I speak to Amendments 91 and 106, which the Minister has mentioned. In this case, I speak very much on behalf of the academic and policy research communities, with which I was professionally engaged for some 40 or more years.

We are concerned not to impose too great a burden on those who are engaged in international research. The Minister will be very well aware of the commitments that have already been made for researchers engaged in international co-operation to provide information to the Government, and the concerns that there have already been, particularly about collaboration with countries such as China and Russia. That information is provided to government, and I remind the Minister that, as a member of a Government who are strongly against adding to bureaucracy and red tape, it should be possible for government departments to share information, rather than require it to be given twice to different departments.

I am conscious that the Home Office has a poor record in this regard; indeed, the entire Windrush affair happened because the Home Office refused to ask other departments for information on whether or not the people concerned had been in this country. This was clearly available at the DVLA, the Department of Health, the national insurance scheme, et cetera. There is a real problem in government about asking for the same information twice. The information asked for indeed overlaps, and I ask the Minister to assure us that the Government will look at this matter again and do their best to make sure that it does not add to the burdens to which those of us who are concerned with international co-operation have to relate.

The Minister will be well aware that the Government are also negotiating to rejoin the Horizon European international collaboration scheme for science, probably the most impressive and important network for international co-operation in the world. All the members of the European Union and the various other countries associated with it are listed as foreign powers, with the exception of Ireland, so this is a live question. I declare an interest: my son, a scientist at the University of Edinburgh, is currently engaged in international co-operation with universities and research institutes—one or two of them government-sponsored and financed—in France, Germany, the Netherlands and the United States. That is a small snapshot of the extent of that collaboration, if one were to go merely to the biology faculty at the University of Edinburgh. I suspect that there are some 30 or 40 other countries with which 100 scientists at the university are involved in various collaborative activities.

The purpose of Amendment 106 is to gain the strongest assurances from the Government that they will look at whether additional burdens are being imposed by the legislation on those who are unavoidably and actively—and desirably—engaged in international collaboration with institutes, universities and other bodies that are part of, or dependent on, foreign Governments in one way or another. We need active assurance on that. If the Minister is able to give that, we will not press these amendments further but I emphasise that it is important that this legislation does not over-add to the requirements to report normal activities. I remind the Minister that we are talking about a country that is determined to become a science international superpower, and that needs to be sure that it does not put obstacles in its own way that deter those in other counties from collaborating as it ensures its security.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for the Minister’s response to the amendments I tabled, supported by my noble friend, on the need for the publication of timely guidance on how the schemes will operate. He has been true to his word from the first day of Report and taken away many of the issues raised in Committee and come back with a number of amendments to address them. They relate mainly to the next group and the political tier but, given that my amendments fall within this group, I wish to put on record how grateful I am to him for the way in which he has engaged and responded.

The government amendments have addressed many of the significant concerns of those seeking legitimate activity—I see that the noble Baroness, Lady Noakes, who raised the issue of economic activity, is in her place—and those concerned about human rights. The areas where some questions remain include those we raised on the first day of Report, such as the German Stiftungen and other organisations that will not fall within the scope of the FIR schemes but are nevertheless concerned that they may do so. Much of that will be resolved in the guidance provided to them and therefore, the timeliness of that is of utmost importance.

In Committee I quoted at length from the Government’s impact assessment of the Bill, which suggested that the initial scheme could cost up to £48 million and many thousands of people would have to be informed about the scheme’s operation. Given that it is to be welcomed that the Government have reduced the scope of that, I am not sure what status the impact assessment now has. I should therefore be grateful if the Minister told us whether the guidance to be provided will also be informed by some revision of the impact assessment.

There will be businesses wanting to carry out legitimate activity that have to operate under a set of rules in the current regulations on countries at risk of money laundering or financing terrorism—we have a list of over 30 such countries—and there may now be an enhanced tier under FIRS. There will also be others, making it quite a complex environment for businesses operating in the political sphere.

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[Lord Beith (LD)]

My Lords, I think I failed to hear something the Minister said earlier relating to Amendment 110A. I raise it because the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew, are both unable to be in the House this afternoon for various compelling reasons. The amendment helpfully tidies up part of the provision by ensuring that the reference to arrangements entered into before the clause comes into force does not apply to arrangements that have ceased to have effect. I think the Minister indicated that he was going to accept it and therefore, I presume, move it at the appropriate stage.

[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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[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.

[Lord Purvis of Tweed (LD)]

It is perfectly within the rules of the Companion for noble Lords to seek points of clarification or elucidation from those who are speaking.

[Lord Bellamy (Con)]

I am again extremely grateful to noble Lords for their interventions and, in particular, for the support for the principle behind Clause 89 expressed by the Official Opposition, subject to the point about minor offences, which I will come to in a moment.

As a quick reminder, Clause 89 narrows the range of circumstances in which individuals convicted of specific terrorism offences can automatically receive civil legal aid services. This includes individuals convicted of terrorism offences punishable with imprisonment for two years or more as well as other offences where a judge has found a terrorism connection. It is important to note that this clause modifies but does not exclude legal aid, because there is still the route of exceptional case funding, particularly if convention rights are in issue. One of the fundamental convention rights— I think this at least partially answers the point raised by the noble and learned Baroness, Lady Butler-Sloss—is the necessity for a fair trial, in Article 6. The exceptional case funding route is still available in that regard. Phrases such as “excludes”, “denies”, “debars” and “no legal aid support” are not an accurate summary of what this clause achieves.

--- Later in debate ---

So our answer to this is that the Government—when I say this, I mean not the party in power but any British Government—would take seriously a problem of that sort and would undoubtedly conduct a proper review, even if it is not provided in statute that it should do so. That is the Government’s position on the amendment proposed by the noble Lord, Lord Ponsonby.

[Lord Purvis of Tweed (LD)]

I would be grateful if the Minister could clarify a point from his earlier comments on exceptional case funding. The guidance on this on GOV.UK says:

“You could get legal aid for cases that would not usually be eligible if your human rights are at risk. This is known as exceptional case funding”.


Can the Minister clarify: under the Bill, will anybody who receives any sentence for any terrorism offence now automatically be eligible for exceptional case funding?

[Lord Bellamy (Con)]

No, that is not the Government’s position. There is a mechanism by way of exceptional case funding to ensure access to justice in an appropriate case.

[Lord Purvis of Tweed (LD)]

Then the point that the Minister referred to about the Bill is irrelevant, because the eligibility for exceptional case funding is regardless of whether the Bill is in place.

[Lord Bellamy (Con)]

It is not entirely irrelevant that exceptional case funding is always available for access to justice. That fact changes some of the comments that have been made about the restrictive nature of the Bill.

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[Lord Coaker (Lab)]

My Lords, in moving Amendment 195, I will not speak at great length. The amendment requires the Secretary of State to propose a new proscription process for actors engaged in hostile state activity on behalf of other states, or indeed non- state organisations acting for a state or those who may act on their behalf.

I am moving this amendment to enable the Government to deal with any legislative problem in proscribing, among others, the Islamic Revolutionary Guard Corps, known as the IRGC. The Government will tell the Chamber and me that existing legislation can deal with it, so it is not a problem. So why is there a delay in proscribing the IRGC? If there is no problem with existing legislation, why are Foreign Office officials questioning, as reported in the Times and many other media outlets, how the IRGC can be defined as a terrorist organisation under existing legislation, given that it is a government agency, unlike most of the other groups on the list? Foreign Office officials are being reported in the media as saying that there is a problem with the legislation. The Home Office is saying—I presume this is what the Minister will say—that there is not. Where has that come from? Why is the Foreign Office briefing the media that the reason it is resisting the proscription of the IRGC is that it is not sure that existing legislation will be adequate to define the IRGC as a terrorist organisation because it is a government agency.

There is a problem here at the heart of government. My Amendment 195 seeks to say to the Government, “Here is a legislative vehicle by which you can plug a gap so that the concerns raised by the Foreign Office can be alleviated”. The Home Office and the Foreign Office cannot both be right. So we should pass the legislation as I have laid it out here. I have read—I was advised that this was the way to give the Government a vehicle to deal with any legislative problem in the proscription of the IRGC, as laid out by the Foreign Office—the various parts of the 2000 Act and the 2019 Schedule in front of me and, as much as I can read and understand them, I will have to take the Foreign Office’s word that it is because it is a government agency that there is a problem.

As I said, something is the matter here. It is the will of Parliament, as expressed time and again in this place and in the other place, that the IRGC should be proscribed, but the Government are unable to do it. Therefore, all of us should pass this amendment to get rid of the legislative barrier that the Foreign Office says stays in the way. I am not a legislative expert, but, if the Foreign Office says there is a problem, if I were in the Home Office, I would pass this amendment and call out the Foreign Office if I wanted to proscribe the IRGC. Perhaps the Minister can tell us whether the Government wish to proscribe the IRGC and whether there is a problem with the Foreign Office. Clearly there is; the Minister will not say there is, but there is.

We have seen an Iranian TV station in the UK forced to shut down because of activity from Iran. Numerous plots have been foiled, thanks to our security services. The noble Lord, Lord Evans, is here, and the noble Baroness, both former heads of MI5, so we thank them. But the Government are prevaricating on the proscription of the IRGC. My amendment, as I said, seeks to help the Home Office in its disagreement with the Foreign Office by allowing the creation of an improved and clearer process for proscribing hostile state actors.

The Government are divided in the face of this worrying issue. The Government will say they are not, so I was looking for evidence to show that they were. What did I find? In Hansard, Bob Blackman MP—not me trying to create trouble in the Lords but a Conservative MP—said:

“Clearly, the threat from the IRGC to people in this country—be they opposition journalists reporting on what is going on in Iran at the moment or UK citizens—is paramount. Foreign Office Ministers have responded to all the urgent questions the Speaker has granted and the debates we have had, but will my right hon. Friend now take the obvious step, which is supported by all political parties in the Chamber, and proscribe the IRGC in its entirety?”


Tom Tugendhat, Minister, Home Office, responds with this direct quote:

“My hon. Friend will know that it is not me”—


I am quoting this—

“he has to persuade in this matter and that there are many areas where I would like to go. I can assure him that the Government are absolutely listening to exactly what he is saying. The Home Secretary and I are as one on this”.—[Official Report, Commons, 6/2/23; col. 639.]

I am not a genius at working out what that means, but I think anybody who has been in the other Chamber or in this Chamber and has listened to the debate knows that the National Security Minister is telling Bob Blackman MP that the Home Secretary and he agree that the IRGC should be proscribed, but they have a problem with other parts of government, and those other parts of government are the Foreign Office, which believes that it should keep open communication with Iran and that proscribing the IRGC will cause all sorts of other problems, presumably around the nuclear treaty and so on and so forth.

All I am saying to the Minister is that the Foreign Office is clearly blocking the proscription of the IRGC, which is what the majority of people in this Chamber and the other think should happen, and my amendment seeks to take away from it the excuse it is using: namely, that there is a legislative problem, because the IRGC is a government agency and it would therefore be difficult under existing legislation to define it as a terrorist organisation.

Amendment 195 is extremely important, because it will allow the proscription of the IRGC and will take away from the Foreign Office the excuse that it is using to block that proscription. It is in the national security interests of this country for the IRGC to be proscribed as soon as possible. From what I just quoted, it is obvious that the Government, defined as the Home Office, agree, but the Foreign Office is stopping it. This Chamber has the opportunity, in the vote on my Amendment 195, to take away the excuse that the Foreign Office is using to stop that proscription. I hope that noble Lords will take it.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the noble Lord, Lord Coaker, for bringing this issue to the Chamber on Report. He asked very pertinent questions. If he seeks to test the opinion of the House, we shall abstain on this point, but that is not because we do not wish to hear the Minister’s answer—it is because, if we are reforming the Terrorism Act 2000 and the means by which we proscribe organisations, there are perhaps better places for a full and more fundamental review.

I have been on record as supporting the proscription of the IRGC, and I have said that this should not be done without considering the knock-on effects within Iraq and Lebanon. The Terrorism Act 2000 states that it is the Home Secretary who has the specific power to proscribe, so the questions that the noble Lord, Lord Coaker, asked are valid. If this is a Home Office Minister stating that to the House of Commons and it is the Home Secretary’s decision, what is the process by which government will now make decisions on this? I have also repeatedly called for the proscription of the Wagner Group, which is a non-government organisation but clearly has direct links with the Russian Government.

There are, of course, some grey areas. Before we reached this group, I reviewed the whole list of those proscribed organisations, and we have recently proscribed some that are clearly not linked with a Government but are organisations designed to destabilise that country’s Government. However, over the years, there have been other organisations where the lines are more blurred as to whether they are within the framework of aliases or associated organisations, which can be proscribed under the Terrorism Act 2000, even if they are not directly part of the Government of that nation. It is obviously a large step if we proscribe part of a Government, but, in the past, we have seen that, in many areas, it has not been clear who the Government of a country are. Therefore, the statutory tests that are used, and that need to be satisfied, need to be robust.

I have raised the issue of the Wagner Group since 25 April last year, and I have seen it operating with my own eyes in Sudan—some noble Lords have heard me make this case before—and it is palpably the case that its operations are terrorist in purpose and in nature and that they are directly against the national security interests of the United Kingdom and pose a threat to British nationals and our allies. I called for its proscription last year on 25 April, 23 May, 9 June, 7 July, 15 November and 21 December, and on 26 January this year.

National Security Bill

Lord Purvis of Tweed Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, I declare my interest as the chairman of the Independent Press Standards Organisation. I have also added my name to Amendment 18. I have very little to add to what has already been said by those who have spoken in the debate. The noble Baroness, Lady Stowell, has given a very good summary of the ruling of Pepper v Hart, although there first has to be ambiguity for the Minister’s words to have particular effect. None the less, I entirely agree with her that we will listen with great interest, as indeed will the media in general, to what the Minister has to say, to see whether he can give the assurance that is genuinely needed.

All I will add to what noble Lords have said already is that public interest journalism is genuinely under threat. It is very expensive to undertake, and editors can easily be deterred by the possibility of a wild goose chase. It would be an additional impediment to their encouraging proper journalism if they felt that one of their journalists or their publication was in some danger of finding themselves contravening the provisions of this very important Bill, which I also support in all respects. That is why this is a very significant group of amendments. As the noble Lord, Lord Black, said, citing Roosevelt, freedom of expression is fundamental. The press and the recognised publishers reflected in this amendment represent a very significant part of that freedom, and I hope that, in the Minister’s response to this group of amendments, we will get the reassurance that is so badly needed.

[Lord Purvis of Tweed (LD)]

My Lords, I have added my name in support of my noble friend’s amendments seeking further clarity on

“the interests of the United Kingdom”.

I remind the House of the very significant penalties that are associated with these offences. Since this is my first opportunity on Report, after speaking in Committee, I thank the Minister and his team for listening, and not just listening but acting, engaging with us on these Benches and bringing forward amendments that we believe will make the Bill fundamentally better. Ministers have been true to their word in acting, and I appreciate that. The way the Minister and his officials have conducted themselves is to be commended, and I put that on the record so that it is perfectly clear.

The area that is outstanding, however, as my noble friend indicated, is that we still retain a concern that simply referring to “interests” and relying purely on the judgment within the 1964 Chandler case is insufficiently wide. As I stated in Committee, I am in a significant minority in not being a lawyer but, from reading the judgment in Chandler, which I remind the House also related to nuclear and defence policy, the only reference the Government have given to highlight what the case law definition would be of

“the interests of the United Kingdom”

is a defence and security interest. That is the only reference to the only case the Government have referred to. Therefore, it is not a significant leap to simply state in the Bill that this legislation is linked to security and defence interests. Without that, as my noble friend indicated, there is a concern that any government policy of the day that is not associated with defence interests, but is nevertheless activity that is directed by a foreign power, could be covered within this. Therefore, we still believe that there is a case for that to be defined.

I hope the Minister will respond to that point and say whether the Government are open to having further clarification of how “interests” are going to be defined, rather than just relying on that individual case. The reason I believe that that will now be necessary is because of one of the welcome concessions by the Government, which is to have an independent reviewer. We will come to government Amendment 85 later, but there will be a reviewer of this part of the legislation. For that reviewer to do their job properly—and we have noted reviewers and former reviewers in the House today—clarity on the Government’s intent regarding these interests will be important for the reviewer to look at the proper functioning of the legislation. I hope there will not be a grey area where there needs to be clarity, as the noble Lord, Lord Faulks, indicated.

My second point is that I welcome the Government seeking to narrow the area of information known to someone who is likely to fall foul of this legislation. Journalism is incredibly important. Unlike the noble Baroness, Lady Jones, I do not have friends at the Telegraph or the Sun to message me—we on these Benches do not often receive friendly messages from those journals—but I defer to her contacts with the Sun. Of course, she raises an important point in the context of what we debated last week in Grand Committee, the situation in Iran. We know that not only, as the noble Lord, Lord Faulks, indicated, is free, fair, impartial and independent journalism under threat around the world, but journalism is under threat in this country. There are countries that are persecuting journalists for operating within this country; therefore, the strongest defences for journalism are important. We believe very strongly that my noble friend’s Amendment 79, on a public interest defence, will provide a very sound defence for journalists carrying out their activities.

I have a question for the noble Lord, Lord Black. My understanding of the way that his Amendment 18 is written is that it would also cover whistleblowers. We have made the case for there to be protection for whistleblowers but, as I read his amendment, the defence is for a person who is not necessarily a journalist, but the intent is that the action will be for

“publication of material by a recognised news publisher”.

As I read it, Amendment 18 is therefore not limited to journalists. There may be unintended consequences that we may consider positive but the Government may not. I do not know whether the noble Lord, Lord Black, will an opportunity to respond, so I ask the Minister whether his interpretation of Amendment 18 is that it could include whistleblowers. The main result may be to protect those who have a public interest defence in operating within all these parts. We will debate this in the next group on Amendment 79. I hope that will be our opportunity to draw the ditch—if not die in it—fight our case and divide the House on ensuring that there is a defence for journalists and a proper public interest defence for those carrying out legitimate activities not to be captured by this Bill.

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[Lord Evans of Weardale (CB)]

My Lords, I acknowledge the changes that have been made to Amendment 79 since it was introduced in Committee, but I still do not feel that it would be appropriate and right for us to accept it. The noble Lord, Lord West, has pointed out a number of the reasons why, but I emphasise that we are being invited to introduce a public interest defence for what is, straightforwardly, espionage on behalf of a foreign service. I do not believe that we need to provide a public interest defence when an individual obtains and provides protected information on behalf of a foreign power while recognising that this is prejudicial to the safety of the United Kingdom.

I also recognise that the amendment extends to the Official Secrets Act 1989 but, again in support of the noble Lord, Lord West, I say that, if we are to change that, we must do so in a careful and deliberate fashion and bring forward legislation to do so. The 1989 Act does not deal with espionage on behalf of a foreign intelligence service. It is drawn up for different purposes. Therefore, it is separate from the issues that we are considering regarding the Bill. More broadly, it remains extremely dangerous to encourage or to lead individuals to believe that there is a public interest defence to the disclosure of highly sensitive information. Any one individual is unlikely to be able to make an accurate assessment themselves of whether their declaration and their disclosure is damaging to national security. That must be considered carefully, and it is not something for an individual official, however senior, to take on themselves. Therefore, any legislation and any amendment that might encourage them to do so is misguided.

Also, once a disclosure has been made, it cannot be withdrawn. Even though there may be benefit in prosecuting an individual for having done it, that does not stop the damage that has already been done. Therefore, we must have care not to lead people into believing they will be able to defend themselves having already made a disclosure, because the damage will have occurred.

Finally, on the question of evidencing damage, I recognise that the change in the burden of proof is a significant change to the amendment. Nevertheless, we are then faced with a situation where a person who has been accused of this offence will be trying to argue that they did not cause damage. In so doing, they are likely to adduce more evidence and more contextual material which might itself be damaging. It is not clear that this makes it easier in terms of the evidence or that it makes the prospect of prosecuting people for harmful activity any easier. For these reasons, I do not support this amendment. I hope that the House agrees.

[Lord Purvis of Tweed (LD)]

I have a question on a point of clarification. I understand the point that the noble Lord makes regarding those offences which may be at the direction of a foreign power, as in espionage. However, the Bill contains offences that are not necessarily at the direction of a foreign power. His point would mean that my noble friend’s amendment would offer no public interest defence for those offences in this Bill which are not under the direction of a foreign power—as in, not espionage offences.

[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.

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[Lord Murray of Blidworth (Con)]

The Government take the view that it is necessary to have the matter protected in UK law in addition to SBA law, and that, I am afraid, is the answer.

[Lord Purvis of Tweed (LD)]

The Minister was careful when he said that the SBAs and the FCDO were consulted by the Home Office on bringing forward this decision. I would assume that one department would consult another in its own Government with regards to a Bill—I think we can take it as read that the Home Office should have consulted the FCDO. The point that the noble Lord, Lord Carlile, made was that there was no consultation with the Government of Cyprus, which is embedded in the principles of the establishment treaty in 1960. That is why there is a problem with it.

With regards to the further point from the noble Lord, Lord Anderson, if it is only a UK constable, and only within UK domestic law, who enforces it within the SBA area? Who enforces it within the adjacent area to the SBAs, given that the measures are much wider than simply activities here in the UK? Who enforces it there?

[Lord Murray of Blidworth (Con)]

As I hope I have already made clear, it is only Clause 4 that applies. Clause 6 does not apply in this context.

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[Lord Carlile of Berriew (CB)]

My Lords, I rise briefly, I hope, to say that, first, I agree with everything that my noble friend just said and will not repeat it. Secondly, I regard Amendment 66 to be a considerable improvement on what we were faced with before we started the Bill. Indeed, it is not a provision that provides immunity, it is evidence-based, it has a strong public interest element, but it is not perfect. One of the complaints I have received—only anecdotally but from authoritative sources—is a lack of understanding, among fairly senior public servants, of why the Secretary of State no longer carries any responsibility for the sort of decisions referred to in Amendment 66. The requirement in its subsection (5) that the Defence Council must ensure that the Armed Forces must have various arrangements in place is welcome as far as it goes, by why are Secretaries of State being eased out of any level of responsibility for decisions of this kind? I am not sure there is total confidence, among the kind of officials I have referred to, in the Defence Council to be as definable a source of responsibility as the Secretary of State.

[Lord Purvis of Tweed (LD)]

My Lords, I understand that our order of business has been changed today. The Government Whip did not consult our Front Bench and, for those of us who had engagements during the dinner-break business, I think it is a discourtesy not to have at least consulted the Front Benches of other parties about changing the order of business.

That said, I welcome the government’s amendments. The noble Lord, Lord Anderson, is absolutely right. The noble Baroness, Lady Manningham-Buller, had indicated her hope that there would be government amendment in this area, and I thank the Minister for listening during Committee and for bringing forward these amendments. In Committee, I went to some lengths to outline what domestic procedures are in this area. The noble Baroness, Lady Manningham-Buller, asked something I thought was rather threatening: if she could have a quiet word with me outside the Chamber during the hour for other business we had then. I am glad to say now that I will accept that and bring the Minister with me, because there may be an element of consensus on a more sensible way of dealing with concerns raised about immunity for, potentially, very serious crimes committed overseas.

I am grateful that the domestic practices will now be considered similar to extraterritorial processes, acknowledging that there have been distinct differences. My questions, to some extent, are linked with those raised by the noble Lord, Lord West, on how this will be operated. In Committee, I highlighted the Government’s Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. I referenced the Ministry of Defence joint doctrine publications, and I highlighted the Security Service guidelines that had been released in a trial, and we now know more about them. There are a number of existing sets of guidance for the Cabinet Office, from the MoD and within the security services themselves on how, as the amendment states,

“arrangements designed to ensure that acts of a member of the service to which a provision of Schedule 4 applies are necessary”.

I would be grateful if the Minister could outline how guidance will be put together that will be for both domestic activities and now those in regard to defence under this part, whether that will be made public, and how it will interact with MoD guidance to address the similar concerns of my noble friend Lord Beith and the noble Lord, Lord West.

We know what MoD joint doctrine says regarding detainees overseas, but we do not know the principles that will apply to these new areas. Therefore, we need clarification on what they will be. I welcome the Government’s move. There needs to be further illustration of how it will be operable, and I hope the Minister will be able to provide that and give an indication of when guidance will be put together and will be published.

[Lord Coaker (Lab)]

My Lords, this is a really important debate. Government Amendment 66 is a considerable improvement on what we had before, with respect to Clause 30. We have heard from noble Lords about their belief in that and their pleasure that we now see Amendment 66 before us. As my noble friend Lord West—I will come back to him—the noble Lords, Lord Anderson and Lord Carlile, and others have mentioned, there are still questions that the Government need to answer. I very much look forward to the Minister’s response, particularly to my noble friend Lord West, who very effectively laid out the fact that although the ISC welcomes the new clause proposed by Amendment 66, there are still some important questions for the Government. It is extremely important that the Government put their answers on the record, so they are there as testimony of what the Government expect of how the new Clause 30—as it will be—will operate.

The point made by the noble Lord, Lord Anderson, about the inclusion of the Armed Forces in this deserves a proper answer from the Minister. It is good to see the Armed Forces Minister here to have heard the noble Lord.

My noble friend Lord West laid before us how we got here, the relationship between the Home Office and the ISC, and the lack of a speedy response to some of the requests, which have led to some of the difficulties we have seen. If people had attended the committee, spoken to the committee and discussed with the committee —even if some of those discussions may have been difficult—some of these problems would have been resolved. Yet we have debate in the other place, debate here, and now it is only on Report that we get to a position where we seem to be on the verge of achieving what we all want.

I go back to a point I find quite astonishing, referring to the Intelligence and Security Committee’s annual report. My noble friend Lord West pointed to the lack of Home Office response. I lay this before each and every one of you: when do noble Lords think was the last time the Prime Minister went along? Do not answer that—there is no need to shout out. It is quite astonishing to read in the annual report that, despite repeated requests, no Prime Minister has been to the Intelligence and Security Committee since 2014. That is absolutely disgraceful. The committee was set up by this Parliament to oversee intelligence and security matters and to receive intelligence at a level we cannot be briefed on—quite rightly—and, despite repeated requests, the Prime Minister has not gone. How can a Prime Minister not go to the committee set up by Parliament to discuss matters of intelligence? I find it incredible.

A few weeks ago, I asked the noble Lord, Lord Sharpe, why this has not happened. The Government say, “The Prime Minister has been very busy over the last few weeks”, and he has been; he has been not just to Belfast but to numerous other places, including Parliament, to meet various groups. Why has it not been possible to meet the Intelligence and Security Committee? This is incredibly serious.

--- Later in debate ---

The noble Lord, Lord Purvis, asked about publishing guidance. The Government have no plans to publish specific arrangements, but relevant published policy documents are already available, such as the Fulford principles and the OSJA Guidance. In addition, UKIC’s activities are scrutinised by the Intelligence and Security Committee, and challenge can be brought to the UK intelligence community or the Armed Forces on their activities—for example, through judicial review, a civil damages claim or a complaint to the Investigatory Powers Tribunal in relation to the use of intrusive powers. We will continue to work with UKIC to consider how we can be forward-leaning in showing appropriate partners how we consider risks internally while protecting operational security.

[Lord Purvis of Tweed (LD)]

The Minister knows that, in Committee, I quoted quite a lot from the OSJA human rights guidance, which I have before me. It also addresses the fundamental point of my noble friend Lord Beith. Both the security service guidelines—which are not published, but about which we know because of judicial processes—which categorise the means by which authorisations have to be secured, and the OSJA Guidance outline the risk assessments that officers must go through. They conclude that, if there is high risk, ministerial approval is necessary. The Government’s amendments do not state categorically that authorisations and ministerial approvals will be necessary for breaches of the SCA offences. Can the Minister confirm that it will be the case that, if there are breaches of the SCA which are forecast through risk assessments and during the processes, ministerial authorisations will have to be provided?

[Lord Sharpe of Epsom (Con)]

My Lords, I cannot confirm that from the Dispatch Box, but I will write to the noble Lord with the appropriate clarification. I do not actually have a copy of the OSJA Guidance in front of me, but I appreciate the points he is making.

I return to the third concern raised by the noble Lord, Lord West. I can confirm that, where a member of the intelligence services or the Armed Forces conducted activity that did not comply with the arrangements—namely, the rigorous safeguards, standards and internal processes that I described earlier—this breach of the arrangements could be scrutinised by the proper oversight mechanisms; for example, an error would be reported to IPCO for a breach of the Fulford principles. It could be considered by the prosecution and would impact the availability of the defence. I also assure the noble Lord that the introduction of this new defence, in and of itself, will not lead to fewer ministerial authorisations sought by the intelligence services or to less daily oversight from Ministers and/or judicial commissioners over intelligence activity. I know that he asked me for an explicit reassurance on that point.

I conclude by saying that, for the reasons I have outlined, the Government cannot support the amendments tabled by noble Lords against Clause 30, and therefore ask noble Lords not to press their amendments. I also ask the House to support the new SCA defence amendment tabled by the Government.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for his clear explanation. There remains a slight degree of uncertainty. Presumably the Government will issue guidance to be put in place before the scheme is operational. We raised this at our meeting with him.

I wonder whether, in advance of us considering FIRS next week, we could have more information about what the draft guidance will look like as part of the engagement that the Minister has committed to, which is welcome. We have seen some elements of the draft regulations and heard some explanations from the Government but, if he could expand on what the draft guidance might be, that would provide some reassurance to the Stiftungen and other organisations that are hurriedly trying to find out where they fit in this area around what a foreign power will be and the interaction with either intermediaries or those who are funded by them. It is hard to outline that in the Bill but, if the Minister could provide that information in advance of next week, it would inform us very well.

[Lord Balfe (Con)]

My Lords, before the Minister comes back, could either he or a representative of the Government talk to the German ambassador and clear up this difficulty because the Germans are quite convinced that they are caught by this? It would be good if he could come back here and say, “I’ve spoken to the German ambassador or the First Secretary and we have agreed this”. Otherwise, the confusion will carry on.

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[Lord Purvis of Tweed (LD)]

My Lords, I am not sure whether the noble Lord will seek to test the opinion of the House—he is nodding from a sedentary position. If he does, we will support him. However, that is not to disregard that the Government have listened and responded positively to the points made in Committee on the need for independent oversight.

Therefore, I will support what the Government say, with just with one question regarding oversight and their intention. We have two former independent reviewers in the House at the moment. I am not sure what normal practice is, but the Government’s amendment, regarding the independent reviewer providing a report to the Secretary of State and the Secretary of State then laying that before Parliament, gives no indication of a timeframe for laying the report before Parliament after it has been received from the independent reviewer. Given the earlier comments from the noble Lord, Lord Coaker, regarding Governments not providing information to Parliament in a timely manner, could this unfortunately be a wee loophole in the independent reviewing? It seems that the amendment gives Ministers complete discretion on when they may present reports to Parliament. Therefore, reports could be received from an independent reviewer but not presented to Parliament for a considerable period or at all.

I hope that is not the case and that this can be clarified by the Minister, but it is an omission within the Government’s amendment, which is otherwise welcome. As I say, the Government have moved, but I hope that the Minister can respond on the areas of omission.

[Lord Anderson of Ipswich (CB)]

The noble Lord, Lord Purvis, hits on a sore point for independent reviewers past and present. At the instigation of my noble friend Lord Carlile, the Australians copied the job of independent reviewer—I think they call him or her the independent national security legislation monitor, which is even more indigestible. In doing so, they provided in their statute that reports be laid before Parliament within, I think, 15 sitting days of receipt by the Minister, an excellent discipline which I rather wish this amendment had followed.

I do not wish to seem ungracious. The independent review of powers, whose exercise is attended by secrecy, is a token of good faith on the part of government. It has proved its worth since the 1970s in this country in the context of counterterrorism law. I never doubted the good faith of the Government where this Bill is concerned. This amendment will make that good faith evident to others. It will help to dampen down the conspiracy theories that are so prevalent in this area and allow us to keep pace with Australia—and shortly, I hope, Ireland—in providing for independent oversight of almost the full range of national security laws.

However, gratitude has its limits. On first inspection, the amendment tabled by the noble Lord, Lord Coaker, looks even better, so if he divides the House, I shall vote for it.

[Lord Murray of Blidworth (Con)]

My Lords, I thank noble Lords for those contributions. There has been plenty of discussion throughout the passage of this Bill about the need for oversight of the state threats provisions in the Bill. The Government have welcomed this debate and agree on the need for the Bill to go further in this regard. The new provisions proposed by the Government do just that. I am very grateful for the remarks made by the noble Lords, Lord Ponsonby and Lord Purvis, on the Government’s movements in that regard.

I will not spend too long on this group but will set out briefly the provisions and how we expect the government provisions to work in practice. The amendments made by the Government create a single reviewer of state threats legislation to oversee the operation of the measures in Parts 1 and 2 of the Bill. This means that the reviewer will oversee not just the STPIM regime but the criminal offences and the exercise of police powers to ensure that their use is appropriate and proportionate.

The Government are also bringing oversight of the provisions of the state threats port stops power—Schedule 3 to the Counter-Terrorism and Border Security Act 2019—within the remit of the new reviewer, meaning that all dedicated state threats legislation will be considered as part of a single reviewer’s role.

The Government have heard the argument that this role should in practice be carried out by the Independent Reviewer of Terrorism Legislation and can see the potential benefits this could bring. However, the Government are also conscious that the role will be of public interest and will therefore run an open competition for it, rather than appointing someone directly. Given the synergy between the roles, the Government will align the appointment cycle of this post with that of the terrorism reviewer. This will allow the role-holders to work closely together, but also provide the option of having one individual fill both roles, should that be beneficial.

I thank the noble Lord, Lord Coaker, for his proposed amendment on this topic, which would achieve the same effect but also add Parts 4 and 5 to the remit of the reviewer. As mentioned in previous debates on this topic, an explicit commitment to oversight of Part 4 in the Bill is unnecessary, given it is already in the remit of the Independent Reviewer of Terrorism Legislation. I therefore suggest that there is nothing lacking from the present proposal. The provisions in Part 5 are supplementary to the rest of the Bill. The reviewer will be able to look at how Parts 1 and 2 operate in terms of commencement, regulation-making powers and territorial extent without the need explicitly to mention Part 5 in the powers for the reviewer. For those reasons, the Government cannot accept Amendment 80 as tabled by Labour, and hope that colleagues across the House will welcome the government amendments.

[Lord Purvis of Tweed (LD)]

Before the Minister sits down, I wonder if he might be able to address my point—which I remind him is the only point that I made?

[Lord Murray of Blidworth (Con)]

I certainly addressed the point which he generously made praising the Government for our amendments. The point that he raised in relation to the Labour amendment, on the basis that there is no timeframe in the present amendments, is not valid in the Government’s submission, because the Labour amendment itself does not contain any binding requirement on the laying of reports. In our submission, that would remove a level of flexibility. In the area of national security, it is important not to hedge about these kinds of provisions with time requirements. For those reasons, we do not believe that the amendment is necessary. I hope that answers the noble Lord’s question.

[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.

Rwanda: Memorandum of Understanding

Lord Purvis of Tweed Excerpts

Monday 6th February 2023 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I also congratulate the noble Baroness.

The FCDO written policy on guidance on treaties is perfectly clear. It states,

“The key difference between MoUs and treaties is whether or not there is an intention to create legally binding obligations… There is no hybrid. … an MoU is not legally binding.”


The Minister on 20 December referred to this as an “agreement”. I hope he does not do that in his winding-up speech today because the FCDO policy is also very clear. It says:

“DO NOT USE … agreement/ undertaking”.


I hope the Minister can do me the courtesy today of replying to the questions I asked him on 20 December, when he did not give me the courtesy of answering them then. What is the legal basis in domestic law for the commitments in this arrangement that is being provided? What is the legal basis in domestic law of the data sharing?

Given that this is a private arrangement with a company in Rwanda with a centre that I visited last June, which is on an annual rolling contract that will have to be renewed in March—next month—what is the breakdown of the £20 million of taxpayers’ money that has already been spent on no persons being sent? What is the breakdown of the £120 million provided to the Rwandan Government on top of that? The very least the Minister can provide the House with—since the Government are not asking us to ratify this arrangement, not agreement—is to publish the contract for the receiving centre.

What are the processing times expected for those who will be sent to this centre? In December, the Minister said that the policy is that it could be for children and families. I say to the Minister very clearly that I saw no facilities for children and families in that centre. This is £140 million of taxpayers’ money, the purpose of which the Minister himself said is to remove an incentive. This is gross maladministration. The centre even has its own euphemism for it. The Minister can, at the very least, provide me with the answers today that he refused to give me in December.

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

My Lords, I am grateful to the noble Baroness, Lady Hayter, for securing this debate. I must apologise that I will not be able to address all noble Lords’ contributions during this response. I am delighted to provide the clarity the noble Lord, Lord Ponsonby, rightly asked me to provide as to the reasons why a memorandum of understanding was chosen in this regard.

The proposal to relocate asylum seekers to Rwanda has been, and continues to be, the subject of considerable public debate. The number of people crossing the channel in small boats has increased exponentially, placing our asylum system under severe pressure as well as the extent to which services can be provided to those coming to our shores. Not only is every crossing attempt a potential tragedy, as we have seen far too often, but the people arriving via these small boats have travelled through and then left safe countries with fully functioning asylum systems.

Tackling the global migration crisis requires global solutions, and the United Kingdom’s ground-breaking partnership with Rwanda is an essential part of that approach. This policy will help to disrupt the business model of people smugglers, those gangs putting lives at risk using dangerous, unnecessary and illegal routes into the UK. The long-term strategic bilateral partnership that we intend to deliver through the migration and economic development partnership between the UK and Rwanda is built on the shared understanding that the current conventions for dealing with refugees and migration no longer work. I agree with my noble friend Lord Udny-Lister that bilateral agreements are also important, but we need new approaches at scale to ensure that immigration is orderly and controlled. Noble Lords will appreciate that there is an urgency and considerable public interest in deterring unnecessary, illegal and dangerous journeys to the UK.

I will now turn to the Question posed by the noble Baroness, Lady Hayter, on the decision to use a memorandum of understanding for the migration and economic development partnership. As indicated in the Government’s response to the International Agreements Committee’s report, the Government’s decision to use a memorandum of understanding—a non-legally binding instrument—has the benefit of allowing the detail of the partnership to be flexible. The technical details may be adjusted quickly if needed with the approval of both partners.

The UK and Rwanda have a well-established relationship. There is a significant history of our two Governments working together, as the noble Earl observed. Most importantly, the Rwandan Government have reason to know that the United Kingdom places the utmost importance on Rwanda’s compliance in good faith with the terms of the memorandum. The obligations placed on Rwanda under this partnership are laid out clearly in the memorandum, and they ensure that both countries have the same understanding of these obligations.

Indeed, in its judgment, the Divisional Court of the High Court at paragraph 65 found:

“The terms of the MOU and Notes Verbales are specific and detailed. The obligations that Rwanda has undertaken are clear. All, in one sense or another, concern Rwanda’s compliance with obligations it already accepts as a signatory to the Refugee Convention.”


I can therefore confirm to the House that we are confident that Rwanda will honour its commitments. This position was also considered by the High Court at paragraphs 70 to 71 of its judgment, where it stated that

“the conclusion that Rwanda will act in accordance with the terms of the MOU and the Note Verbales rests on HM Government’s experience of bilateral relations extending over almost 25 years and the specific experience of negotiating the MOU over a number of months in 2022”.

Furthermore, the court found that

“the Home Secretary did not act unlawfully when reaching the conclusion that the assurances provided Rwanda in the MOU and Notes Verbales could be relied on”.

I should also note that adopting a treaty, rather than using memoranda as suggested by the noble Baroness, would not necessarily have afforded individuals the right to raise disputes in the way some noble Lords have suggested.

While the Government cannot comment on ongoing legal proceedings, no court has ruled that this partnership is unlawful. In fact, the High Court, in the 19 December ruling, said that the arrangements entered into for the relocation of asylum seekers to Rwanda is consistent with the refugee convention, the European Convention on Human Rights and the statutory and other legal obligations on this Government.

I am therefore disappointed by the views expressed by the noble Lord, Lord Sahota, the noble Earl, Lord Sandwich, and others on the safety of Rwanda, which appear to be ill-informed and contrary to the High Court’s judgment. In paragraph 71, the court found that the Home Secretary’s assessment that

“Rwanda is a safe third country, was neither irrational, nor a breach of article 3 of the ECHR”.

The domestic legal framework that gives effect to removals under this partnership is backed by legislation which has already faced parliamentary scrutiny.

I welcome the court’s judgment that this policy is lawful, as we have maintained throughout. We will, of course, pay extremely close attention to the individual circumstances of those considered for relocation. Decisions will be taken on a case-by-case basis, and nobody will be relocated if it is unsafe or inappropriate for them.

The arrangement requires Rwanda to process claims in accordance with international standards, as I previously mentioned, and it ensures protection from inhumane and degrading treatment and from refoulement. We have assessed Rwanda to be a fundamentally safe and secure country, with respect for the rule of law and a strong track record of helping those in need. In paragraph 51 of its judgment, the High Court itself said that

“Rwanda has a significant history of providing asylum to refugees”.

This session concerned an important political arrangement underpinning our partnership. The Government carefully considered the report from the House’s committee which the noble Baroness chairs. As noted in our response to the report, we published the memorandum of understanding in full transparency in April last year, very shortly after it was concluded. The MoU was negotiated with utmost care and attention by both Governments.

It is not at all fair to suggest that His Majesty’s Government have avoided scrutiny. Ministers have engaged fully with Parliament regarding this arrangement, including via Oral Statements, Parliamentary Questions and written correspondence. Ministers and senior officials have made numerous appearances before committees, and we are here today discussing the issue. Of course, all of this is on top of the High Court’s very detailed consideration of this document.

The Government take the view that the constitutional convention known as the Ponsonby rule, as it existed and was practised, was in its entirety put on a statutory footing by the CRaG Act. We do not accept that there has ever been any convention whereby non-legally binding arrangements are routinely submitted to parliamentary scrutiny, and this is borne out by the consistent practice of successive Governments. Parliament did not consider disclosure of non-legally binding arrangements to be part of the Ponsonby rule when it looked to put the convention on to a statutory footing in the Constitutional Reform and Governance Act.

With that said, while we responded to the urgency and exceptional public interest in deterring these dangerous crossings to the United Kingdom, it is not at all right to say that this was rushed or that scrutiny was evaded. We have been clear that the memorandum of understanding between the UK and Rwanda is a non-legally binding instrument. Such instruments are common mechanisms for recording political commitments and arrangements between states and—as I have already said—allow for flexibility.

A decision on whether to use a treaty or non-legally binding instrument will depend on various factors. Ultimately, the decision will be based on whether there is a need for legal enforceability or whether a non-legally binding commitment would be appropriate. While we have never claimed that the terms of the memorandum are to be legally binding under international law, the arrangements we have put in place provide sufficient assurances to us—and indeed have satisfied the High Court—that the arrangement will be operated in line with international obligations and in a manner which ensures the welfare and safety of those people relocated under it. I am sure that the noble Baroness will be aware of the means by which the delivery of the scheme will be overseen and assessed against the assurances in the memorandum.

I particularly highlight the fact that a monitoring committee has been appointed, as was referred to during the debate, whose members are independent from both the Rwandan and United Kingdom Governments, and who will be able to look at every part of the relocation process and will independently assess all conditions. The monitoring committee will produce a summary report for publication yearly for all to see.

[Lord Purvis of Tweed (LD)]

The Minister has only a few moments left. This is the second time that a Front-Bencher has asked specific questions which the Minister has refused even to acknowledge. I regret that I am going to have to escalate this up through the usual channels. It is just not acceptable that the Minister at the Dispatch Box does not even acknowledge valid questions from a Front Bench.

[Lord Murray of Blidworth (Con)]

I think the noble Lord’s question related to the legal basis for the agreement in domestic law; I have addressed that in detail in the course of my speech to the House.

[Lord Purvis of Tweed (LD)]

No, you have not.

[Lord Murray of Blidworth (Con)]

Well, I am sure that we can discuss this on another occasion.

National Security Bill

Lord Purvis of Tweed Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

Moved by

[Lord Purvis of Tweed]

112: After Clause 89, insert the following new Clause—
“Report on actions taken in response to the ISC report on RussiaWithin six months of the passing of this Act, the Secretary of State must lay before Parliament a report on the effect of the action taken by the Government in response to the recommendations of the report of the Intelligence and Security Committee of Parliament on Russia (HC 632 of Session 2019–21).”Member's explanatory statement
This new Clause requires the Secretary of State to report to Parliament on the actions the Government has taken in response to the report of the Intelligence and Security Committee on Russia.

[Lord Purvis of Tweed (LD)]

My Lords, I move Amendment 112 and will also speak to Amendment 118. I will introduce the amendments, but my noble friend Lord Wallace of Saltaire will also speak on this group. Amendment 118 is a probing amendment designed to be helpful for the Government and to allow the Minister to inform the Committee about what their views are on the interaction of the Bill—what will be the National Security Act—and the work of the highly regarded Intelligence and Security Committee of Parliament. In many respects, it makes absolute sense for the provisions under the Bill to fall within the oversight and scrutiny of the Intelligence and Security Committee. Obviously, as it is a parliamentary committee, and because of its remit, there are ways that it will interact with the Bill, but I would be grateful to know whether the Government would support that.

Amendment 112 links to what was a remarkably prescient report from 2020. When I re-read the recommendations of the Intelligence and Security Committee report on Russia before Committee, I found that it highlighted in an almost spooky way many of the practices and approaches of Russia that have come to bear, a year on since the aggression against Ukraine. The amendment seeks for there to be an update from the Government, not just as a response to the recommendations of the committee, which were provided in July 2020 and which I read with interest, but on the ongoing actions as a result. The report had a mixture of seeking clarifications and seeking action, so I would be grateful to know where the Government are with some of the recommendations.

It was interesting to note that the committee report sought clarity on the overseeing of the strategic direction and co-ordination by the National Security Council. It has been re-shaped twice in recent months: Liz Truss got rid of it and changed its operation into a standardised Cabinet sub-committee; I understand that Prime Minister Rishi Sunak has now restored it to what it was previously, but this is an opportunity on the record for the Minister to state exactly what the National Security Council is, how it is composed, and how it will interact with the implementation of the Bill. If he wishes to write to me on that point rather than respond today, I would be very happy.

The committee report highlighted in particular some issues directly linked with the Bill on the powers of the Electoral Commission, as we have discussed previously in Committee. We still believe very strongly that the committee’s recommendations on enhancing the powers of the Electoral Commission are valid, and an update on the Government’s position on that would be helpful. The committee also asked for action to be taken on election material and digital imprints; there has been considerable debate about this, but it would be useful to know how that will be operational. The committee also asked for protocol on social media providers, when it comes to hostile state acts. That was one of the areas where the Government noted the recommendations, but I would be grateful to know what action has been taken.

Finally—I know that my noble friend will be referencing this—the committee went into some detail scrutinising illicit finance and the fact that London has been a laundromat. It highlighted some areas that would be needed for action, notwithstanding that it was positive that the Government, in some respects, have brought forward this legislation in response to the ISC’s report. But there are still unanswered questions with regard to how we are operationalising the need to reduce the scope for illicit finance. Now we have economic crime Bill No. 2: the Government dragged their feet somewhat in bringing the first economic crime Bill to us, but we have the first and the second.

I want give one statistic which is illustrative of what I and certainly my noble friend have been highlighting for a number of years regarding the scale of the issue in London. All along the way, the Government said that we were overestimating the impact of illicit finance, not just from Russia but particularly from Russia. I have debated with the noble Lord, Lord Ahmad, all the Russian sanctions that were put forward. I have welcomed them all, and in some respects they have not gone fast enough, but we have worked together collegiately across all Benches, including the Labour Party. The statistic that I have seen, which the Government published in their anti-corruption work, was that the amount of Russian money in September 2021 that was frozen— not seized—was £44.5 million. That is a substantial sum of course, but we felt that there was more illicit finance operating through London. The most recent figures, since sanctions have been put in place against Russia over the last year, show that that figure is now £18 billion. The gap between £44.5 million and £18 billion highlights the scale of the issue that we were warning against; the Government say that those warnings were unnecessary.

I do not expect the Minister to have any of the details to hand, and I would be grateful if he would write to me giving more information and a breakdown of the difference between the £44.5 million and the £18 billion. That is a colossal sum of money. The Government have found a reason to freeze, as a result of the Russian aggression, assets in London, but that is a very clear example of why there is more to know about the extent of illicit finance through London, and I will be grateful if the Minister will provide more information about that. I beg to move.

--- Later in debate ---

For all the reasons I have outlined, the Government cannot accept the proposed amendments.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for the Minister’s thorough reply, notwithstanding some of his responses, which he prefaced by saying that he knew they would disappoint the noble Lord, Lord Coaker.

[Lord Coaker (Lab)]

There’s nothing new there. I am joking.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

The noble Lord is a very cheerful person for someone who is disappointed. One of the telling facts he highlighted was the difficulty of the committee having an annual meeting since 2014—that speaks for itself. I am grateful to the Minister for saying that he is going to take that message back.

I am also grateful that the Minister has committed to provide some more information, which is quite helpful. On the issue of the tier 1 visas and golden visas, we are in a slightly ridiculous position where we have a discrepancy between what should be on the public record as to who received them and what is on the public record as to who is sanctioned. However, the Government are refusing to put the two together and to say who they are, which means we will have difficulty learning lessons as to how this came about, why they were able to secure the visas and what they have done. If the Minister is writing to me with more information, I would be grateful if he could state who is currently under sanction by the UK and has received a tier 1 visa. That would be very helpful information to receive.

I am grateful for the information on the co-ordination and the security council, and for the other information that the Minister provided. With Amendment 120A from the noble Lord, Lord Coaker, and my amendment, I think we are aiming for the same destination but with a different route. I think that the Minister said that the ISC would be able to scrutinise the implementation of all national security aspects of this Bill. If I have taken that incorrectly from the Minister, I am happy for him to correct me on the record. However, I think that we will pursue that aspect. As the noble Lord, Lord Coaker, and my noble friend, said, we want national security to work and, for that to be done, proper scrutiny by the committee of Parliament needs to be facilitated, with no gaps across the whole panoply. National security is complex and multi-departmental, and a whole-government function, as the Government say—and I respect that—between BEIS, DCMS, the Cabinet Office, the Treasury and FCDO. This is a complex area, and the committee is best placed to do it, but it must be equipped to do it. We may want to return to this issue after we have reflected on the Minister’s responses. In the meantime, I beg leave to withdraw the amendment.

Amendment 112 withdrawn.

--- Later in debate ---

Moved by

[Lord Purvis of Tweed]

114: After Clause 89, insert the following Clause—
“Ministerial appointments: official advice(1) The Cabinet Secretary must publish a memorandum in respect of any ministerial appointments made by the Prime Minister, where advice or concerns were communicated to the Prime Minister by civil servants that the appointment may be counter to the safety or interests of the United Kingdom including because of potential influence from a foreign power.(2) A memorandum under this section must set out that advice or concerns were communicated to the Prime Minister by civil servants, and in respect of which ministerial appointments. (3) A memorandum under this section may not include details of the advice or concerns, where the Cabinet Secretary considers that inclusion of those details may be prejudicial to the safety or interests of the United Kingdom.”Member's explanatory statement
This new Clause requires the Cabinet Secretary to publish a memorandum in circumstances where the Prime Minister made a ministerial appointment and where advice was that the appointment may be counter to the safety or interests of the United Kingdom.

[Lord Purvis of Tweed (LD)]

My Lords, this is an amendment which I really did not think it should be necessary to debate, on ministerial appointments by a Prime Minister, where that appointment may raise issues to do with the safety, security and interests of the United Kingdom. The amendment seeks clarification from the Government on the ability for there to be transparency in the operation of the Ministerial Code, but also where there is concern about ministerial appointments.

This is not a partisan point, because we know as a matter of fact that a Home Secretary was sacked because of a significant security breach. The guidance on security of government business was breached considerably, and Liz Truss sacked Suella Braverman, who admitted a breach of government security guidelines. I recognise that none of the material that was shared on a private email system was marked “secret”, so with regard to national security considerations, on the face of what was sent to an incorrect recipient but also what was intended to be sent, it was not secret or top secret. They were not classified documents, and I respect that fact. However, the recipient’s employer—because one of the emails was sent to a member of staff of an MP—replied to Suella Braverman saying:

“Simply asking my team to delete this email and ignore it is not an acceptable response to what appears, on the face of it, to be a potentially serious breach of security … You are nominally in charge of the security of this nation, we have received many warnings even as lowly backbenchers about cyber security.”


The fact that that Minister was then reappointed for political purposes within a matter of days has been well rehearsed. The Minister has responded to this issue in Questions in the Chamber, and the noble Baroness, Lady Neville-Rolfe, also responded, saying:

“Everyone deserves a second chance.”—[Official Report, 22/10/22; col. 1558.]


I know for a fact that not everybody who will fall foul of some of the significant offences under this Bill will receive a second chance—or that some officials will receive it. But it would be useful to know whether there are security concerns about the appointments of Ministers.

The second thing I say concerns something that did not happen but could easily have happened. A Member of this House, the noble Lord, Lord Lebedev, was appointed under considerable concern about security situations. He was appointed to Parliament by Boris Johnson. He could very easily have been asked to be a Government Whip or a Minister: that is not a stretch of the imagination. What is the situation then, when security concerns have been raised about the appointment of a Member to Parliament but there is no mechanism for transparency about concerns about ministerial appointments? I do not besmirch any existing Ministers: these are two factual situations; one is regrettable, of course; and the other has not happened but could easily have happened. Therefore, my amendment seeks clarification as to what mechanisms are in place for it to be transparent when there have been concerns about an individual being appointed to a ministerial position, so that those concerns can be made public. I beg to move.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Lord for speaking to Amendment 114, which seeks to require the Cabinet Secretary to publish information concerning ministerial appointments in scenarios where officials have indicated that the appointment of a particular individual

“may be counter to the safety or interests of the United Kingdom including because of potential influence from a foreign power”.

The Government cannot accept this amendment because the appointment of Ministers is a matter solely for the Prime Minister, in line with his role as the sovereign’s principal adviser. It is critical to the functioning of government that any conversations that occur around appointments are able to take place in confidence. There is a long-standing practice to protect that confidentiality. Without the ability to speak freely on matters that will be personal and sometimes sensitive, particularly where they may include matters of security, the ability of officials to provide meaningful advice ahead of an appointment will be critically undermined. The National Security Bill is concerned principally with the conduct of state actors working for foreign powers or with an intention to benefit a foreign power. Not only is the Bill not the appropriate vehicle for such a change but the Government also firmly believe that any information relating to ministerial appointments and procedures is not appropriate for publication. The Government therefore ask the noble Lord to withdraw his amendment.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister, and I am not entirely surprised by his response. I think the Government’s concerns regarding confidentiality and protecting Civil Service advice were addressed in the amendment. In fact, it explicitly states that information would not be provided within the memorandum, but that security considerations had been raised should be in the public domain. I hear what the Minister said; we will explore this in the other avenues. In the meantime, I beg leave to withdraw.

Amendment 114 withdrawn.

--- Later in debate ---

As we discussed on the previous occasion in Committee, there are already a number of existing internal and external authorised routes in government through which individuals can raise such concerns. The number of routes has increased since 1989 and the Government consider them to be safe and effective. Many were outlined in the powerful speech given by the noble Baroness, Lady Manningham-Buller, during the debate last week on the public interest defence. With great respect to the noble Baroness, Lady Kramer, I find the testimony given by the former director-general of MI5 to be persuasive on what the view of an intelligence officer might be. That appears to have been confirmed in the contribution we just heard from the noble Lord, Lord Evans of Weardale—in particular, his assessment of the culture in the intelligence services being one of honesty and integrity.

[Lord Purvis of Tweed (LD)]

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

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

[Lord Murray of Blidworth (Con)]

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

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

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

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

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

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

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, Amendment 124 creates the power to extend any provision in the Bill with or without modification to the sovereign base areas of Akrotiri and Dhekelia in Cyprus by way of Order in Council. The provisions of the Official Secrets Acts 1911 and 1920 extend to the sovereign base areas, and this amendment will allow provisions of the Bill to be extended to the law of the sovereign base areas. This would ensure that harmful activity that the Bill addresses can be prosecuted in sovereign base areas when conducted there.

Clause 20, which provides for the aggravating factor to apply to some service offences in the Armed Forces Act 2006, has been excluded from this power given that it is already being extended to the sovereign base areas though Clause 95(1)(b).

I end by putting on record that the Government consider that any references in this Bill to the sovereign base areas will not in any way undermine the provisions of the 1960 treaty concerning the establishment of the Republic of Cyprus between the United Kingdom, Greece, Turkey and Cyprus. I therefore ask the Committee to support the inclusion of this amendment.

[Lord Purvis of Tweed (LD)]

My Lords, I have very little to say with regard to the government amendment. I recognise the Government’s sensitivity to the ongoing issue of the politics within Cyprus.

As this is the last group in Committee, I thank the Ministers today, the noble Lords, Lord Sharpe and Lord Murray, and the noble and learned Lord, Lord Bellamy, for their willingness to engage. As my noble friend Lord Wallace indicated, there is a lot of work to be done in persuading the Committee that the measures in the Bill will meet the Government’s intent. There are some key areas of the Bill where we are looking for more information. I think the noble Lord, Lord Murray, indicated on an earlier group that he is reflecting and that there is more to follow. We await the correspondence from the Ministers. We are very happy to meet Ministers before Report. I say from these Benches that it might be advisable for the Government not to be in a rush to schedule Report, so that there can be proper thinking on the many aspects of the Bill about which we have highlighted problems.

Amendment 124 agreed.

Asylum Seekers

Lord Purvis of Tweed Excerpts

Tuesday 17th January 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

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

[Lord Purvis of Tweed (LD)]

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

[Lord Murray of Blidworth (Con)]

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

National Security Bill

Lord Purvis of Tweed Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

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

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

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

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

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

[Lord Purvis of Tweed (LD)]

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

“how much time they spend reviewing the STPIMs”.

[Lord Murray of Blidworth (Con)]

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

[Lord Purvis of Tweed (LD)]

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

[Lord Murray of Blidworth (Con)]

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

--- Later in debate ---

The Minister spoke in his introduction of those with “malign intent”. That I understand, but the Bill is going far broader than that—at those with healthy intent that is good for society, people, this country and their own country; all are being caught. As the noble Lord, Lord Anderson, referred to, we hear of the Government wanting a global Britain that sees itself as a global player, growing our trade around the world and attracting good investment. If that is the aim, this is no way to seek to achieve it.

[Lord Purvis of Tweed (LD)]

Before the noble Baroness sits down, would she perhaps give permission for us all to receive the Minister’s response to her letter? He is saying from a sedentary position that he will circulate it; if that is acceptable to her, it would be very helpful. He said at the outset that if we, as Members of this House, carry out activities for a foreign organisation of which we might be a member which receives direct support from a foreign principal—we could be a trustee of an organisation funded by the Gates foundation, for example, and there are many other examples—for us to engage with each other, we will now have to register. That is why I think the response to her letter could be so significant, as that is what I took from his comments.

[Baroness Hayter of Kentish Town (Lab)]

The Minister will understand that I cannot possibly answer this question because then we would have to record the conversation. To be serious, in fact, my letter to the Minister, which included a lot of questions, did ask that he circulate it to the Committee and not just to myself.

--- Later in debate ---

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as we are in Committee, I think one can intervene a second time. I just want to ask the Minister about one of the questions I put about political parties; I think it also arises now, from what the noble Lord, Lord Carlile, said. It concerns the confidentiality of all these masses of reports. What privacy protections will be there if this measure goes ahead?

[Lord Purvis of Tweed (LD)]

My Lords, the best estimate of cost is £47.8 million. The high estimate is £62.4 million. In addition:

“FIRS could discourage business activities if the costs of compliance are considered too high. There is a risk of negative reputational impacts from inclusion on a public register. Other countries may introduce reciprocal measures to regulate the overseas activities of government and businesses. Persons could be prosecuted if engaged in unregistered activity, even if the activity itself is legitimate.”


“Benefits were not monetised … While there are many entities which would fall within the definition of a ‘foreign principal’ or ‘foreign power’, it is difficult to determine how many people are being directed to undertake registerable activities on their behalf, or how many people would qualify for an exemption under the scheme … There is also a lack of understanding around how likely the positive and negative impacts are … it is not known how likely it is that the benefits or impacts will occur, or how significant they are likely to be. It is also important to note that much of this feedback was provided before the scope and exemptions within the scheme were finalised.”


“It is acknowledged that the number of people who would be affected by the scheme in terms of registration and familiarisation is unknown … Due to the offences and penalties associated with non-compliance with the scheme, organisations that are ultimately out of scope will still need to be aware of the FIRS regulations to ensure they are out of scope, both currently and for future activities … members of the public will need support in fulfilling their registration requirements.”


“There is a risk that the scheme may have a disproportionate impact on small or micro-businesses (SMBs). There is a risk that SMBs, without established regulatory compliance procedures, won’t register with the scheme and could then be prosecuted. It is not known how many SMBs will be in scope of FIRS … With more time, a more extensive commission could have been sent to departments.”


The high estimate is that more than 371,000 individuals will need to be familiarised with the scheme, but:

“Home Office anticipate that there will be a relatively small number of cases per year for FIRS (less than five).”


Those are all direct quotes from the Government’s impact assessment on this scheme from October 2022. That impact assessment is the least ringing endorsement of any piece of legislation that I have seen in this House for 10 years. More than 371,000 people will need to be familiarised with a scheme that will have five potential cases per year and, of course, the scheme was not consulted on. To be fair to the Home Office, I read the consultation document from 2021. The principle of a FIRS was in it, but this scheme was not. It is in many parts a direct lift from FARA in the United States, or the FIT scheme.

However, the Government have been very coy about the areas where they have not chosen to follow. The noble Baroness, Lady Noakes, indicated the commercial enterprises. The Government have not said why they chose not to follow the United States’ example of the exemption of bona fide commercial activity and other activity not serving predominantly a foreign interest. Therefore, the whole gamut of the points that she and others have made in this House will be covered by this scheme and not that scheme, but why is not indicated. In fact, the Government’s own impact assessment goes beyond that, saying that they do not know how many small businesses will be affected by it, yet the impact assessment of the overall Bill and of this scheme says that there will be 25 people in London operating the scheme at a cost of nearly £50 million. This spider’s web is a very expensive one, and not many hornets will be covered, as the noble Lord, Lord Anderson, said.

The other exemption that the Government have not indicated having referenced before concerns the US exemption on religious, scholastic, academic, fine arts or scientific pursuits. There has been no indication as to why the Government have chosen not to follow that route. There is not a bishop on the Bench, but any Anglican community in or established church from another country interacting with one of our bishops will have to register on this scheme, because there is no religious exemption for it. Any community in this country carrying out what they believe the Pope has asked them to do for campaigning, on what they believe are humanitarian grounds, will have to register under the scheme. Any of us, or any MP, who is encouraging others to support a Ukrainian NGO charity, as the noble Lord, Lord Carlile, indicated, asking us to support Ukrainians for the resettlement scheme will have to register on the scheme.

This is likely to be a scheme that helps oppressors around the world far more than it helps our Government to secure national security. It is no surprise to me that both Hungary and El Salvador cited with great enthusiasm the US scheme as a mechanism to find out what those in other countries are doing to encourage human rights and civil liberties at home.

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[Baroness Hayter of Kentish Town (Lab)]

There are a lot of them.

[Lord Purvis of Tweed (LD)]

There are a few, but 25 members of the Home Office are going to be monitoring this database, and a fair amount of their time might be taken up with David Cameron’s and Tony Blair’s international activities. What was the reason for differentiating from the Australian scheme?

We have heard concerns about the British Academy, universities, INGOs and NGOs, trade, and those seeking contact with FDI and the ABPI. It will render the work of our Prime Minister’s trade envoys that much harder when any interaction with an entity from a country with which we are seeking a better trading relationship now has to register in advance their contact with a trade envoy, not only for perfectly legitimate activities but for activities encouraged by the Government. We have also heard the concern from the ABPI that it will have to register the preparation and planning of meetings beforehand.

At the start of Committee, I indicated that our Benches did not see this part of the Bill as having been properly prepared. The details have not been consulted on and we believe that the Government should pause it. We said at the start of Committee that it may find a better home in the Economic Crime and Corporate Transparency Bill, if it is being reworked. It may be that we move for this to go to a Select Committee for further consideration or to be taken out of the Bill. We do not want to disrupt the Government’s moves to improve national security or to weaken the ability of our country to have national security. We also do not want to weaken our interaction with trade, investment and human rights, or—I say this as someone with no faith—our proper interaction with many faith groups, which will now have to register all of this activity within the Bill.

I hope that the Minister will say today that the Government are going to think again, pause and come back, not just by saying that more information will follow but with a commitment to consult on the specific schemes and work with us to bring back workable solutions.

[Lord Cromwell (CB)]

My Lords, I apologise for not having participated in this debate earlier but, like other speakers, I have been provoked by listening to the contributions. The speeches tonight appear to be about either excluding certain categories or, in the case of the noble Lord, Lord Clement-Jones, trying to include a category in the scope of the Bill. The fact is that, if you start to specify organisations or types of organisations, you will include every organisation in the country, whether a business or arts organisation, a charity, a political party or any other group of people, because any organisation can host people who seek to bring influence of one form or another. It is the behaviour, not the organisation, that is the problem here. To suppose that registering organisations will defeat covert practitioners from seeking to exert influence is naive to the point of being dangerous. As many have suggested, the solution is to go away, redraft and come back with a shorter Bill that does not try to include every organisation, not only in this country but in every other country—any one of them could host a malign influence.

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[Lord Sharpe of Epsom (Con)]

I will come back to the noble Lord on that shortly.

I will go on to the commercial sensitivity aspects—in effect commercial confidentiality, mentioned just now by the noble Lord, Lord Anderson. We believe that ensuring that information can be publicised where it relates to the carrying out of political influence activities will help to strengthen the resilience of the political system, but Clause 77(2) allows the Secretary of State to specify or describe information or material that is not to be published. We intend this to include where publishing the information would, for example, threaten the interests of national security, put an individual’s safety at risk, or result in the disclosure of commercially sensitive information. The registration system will allow a person to flag where they think they meet such an exemption, which will not be considered by the scheme management unit.

In accordance with our data protection obligations, we intend for the information to be published to be limited to what is necessary to achieve the transparency aims of the scheme, particularly where that information is personal. I have heard all the concerns and, as I said, the Government will give further consideration to these points ahead of Report.

[Lord Purvis of Tweed (LD)]

That commitment is welcome. The Minister referred to the lack of a regulatory burden; I am following the point that the noble Lord, Lord Anderson, raised. However, the Government’s impact assessment says, in effect, that everybody needs to be familiarised with it because they will not know whether they are in scope. It says at paragraph 37, which I quoted earlier:

“Due to the offences and penalties associated with non-compliance with the scheme, organisations that are ultimately out of scope will still need to be aware of the FIRS”.


When it comes to domestic charities and NGOs, the impact assessment’s higher estimate of how many people will have to familiarise themselves with FIRS is 105,000 people. It will be an enormous regulatory burden on the domestic charity sector as to whether it knows to comply with it. Simply stating that it is a small online form is insufficient. On that point, I wonder why the Government have no estimate at all of how many small and medium-sized businesses will be captured by this.

[Lord Sharpe of Epsom (Con)]

The noble Lord has pre-empted the remainder of my speech to some extent, which I am afraid goes on for rather a long time; I apologise in advance for that. I will come on to the charities aspect in a moment. On the regulatory burden, I think I have been reasonably clear as to the simplicity we intend when it comes to complying.

The amendment from the noble Lord, Lord Anderson, would extend my noble friend Lady Noakes’s amendment to charitable activities, as was just described again by the noble Lord, Lord Purvis. I once more thank the noble Lord, Lord Anderson, for his scrutiny of the scheme. In essence, the question is: why is there not a charity exemption in the scheme and will this not make it harder for charities to carry out legitimate activity here in the United Kingdom? We believe that the ability of charities to campaign on issues relevant to their charitable mission is very important and crucial to our democracy. The scheme will not prevent this. It will ensure that the public are informed about the role played by overseas entities in this work, however.

We have also taken steps to minimise the potential burden on charities conducting legitimate activity as a result of FIRS. For example, making a public communication, campaign information or requests for support by a charity will be registerable only if it is not reasonably clear from the communication that it is made at the direction of a foreign power or entity. If such a communication is published for or on behalf of a foreign charity in its own name, it would not need to be registered. If it is published by a UK charity or PR firm at the direction of a foreign charity, it would not need to be registered if it is reasonably clear from the communication that it has been made at the direction of the foreign charity. I hope that is reasonably clear and has given some reassurance to the charitable sector.

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[Lord Sharpe of Epsom (Con)]

I was about to attempt to address the question from the noble and learned Lord, Lord Hope, but unfortunately he is not going to like the answer, which is that I do not know. I will have to look into this and come back to him.

I appreciate the concerns that have been expressed by all noble Lords, and I thank all those who participated in what was clearly a very healthy and important debate. We will reflect carefully on the comments raised prior to Report. For the moment, and to that end, I ask noble Lords not to press their amendments.

[Lord Purvis of Tweed (LD)]

Since the Minister said he would go away and reflect on this debate, which may bring about substantial changes to what the Government are doing, what would be the point of his moving his amendments for the remainder of this part? It would save the Committee quite a bit of time if he did not move these amendments to the rest of the part that he said he is now going to consider.

[Lord Sharpe of Epsom (Con)]

My Lords, I am not sure it would save a huge amount of time, would it?

[Lord Purvis of Tweed (LD)]

It depends how long the Minister takes to move his own amendments. When he sums up his own amendments that he will be moving, he will be saying, “I am now going away to reflect on these and come back before Report”, so there is very little point in doing that.

Amendment 82 agreed.

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[Lord Evans of Weardale (CB)]

On the extent of the schedule of those to be included, unless I have misunderstood or misread, there does not appear to be any reference to senior members of the security and intelligence services, who I do not think fall into any of the other categories. Could the Minister explain whether I have misunderstood or if that is a deliberate exclusion, and what any reasoning might be?

[Lord Purvis of Tweed (LD)]

My Lords, it is an intriguing question. I like the idea, as a concept, that any of these organisations which plan to meet with leaders of our intelligence services have to put that on a public register. To assist in transparency, that might meet the Minister’s case. In fact, if we do that, it might mean that we do not need the whole scheme for the other 300,000 people. It is an intriguing point. My questions about who is not covered are far less exciting than whether the intelligence community comes into it.

The Minister said he responded to my point but, with respect, I do not know why the Mayor of London is included but the Lord Mayor of London is not. I do not know why The City of London Corporation would not be included. I would have thought, if this is to do with political influence on our country’s interests, the Lord Mayor and the corporation and City of London represent an absolutely prime area where political influence could be sought over policy. I do not know why that is not included.

I do not know why the mayors of Tees Valley and North of Tyne are included but the leader of Glasgow City Council is not. If it is to do with ensuring a sensible way of operating, then, with the greatest respect to the mayor of the 600,000 people in Tees Valley, to include them in this because they are susceptible to foreign influence seems a bit odd when the leader of the council in Edinburgh, the capital city of one of our four nations, is not. I do not know how long this schedule will last, since the Minister says he is thinking about it and coming back, but, in the meantime, if he can respond to that point I would be grateful.

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[Lord Purvis of Tweed (LD)]

What about the corporation? I am grateful to the Minister, but there is a quite considerable amount of executive authority in the City of London Corporation when it comes to what could well interact with the interests of the United Kingdom. So perhaps the Minister might reflect on that.

[Lord Sharpe of Epsom (Con)]

I will absolutely reflect on that but, as I say, they are not politically elected persons, as the noble Lord will know. As regards his example of a foreign defence contractor talking to somebody of the rank of brigadier, having had our lengthy discussions earlier I would have thought that they would be captured under the corporate side of the Bill. The effect of this amendment would be that foreign principals, or those in arrangements with them, would be required to register communication with these postholders, as well as those in the existing list, if it were conducted for the purpose of influencing one of those persons listed in Clause 68.

In answer to the other question about senior members of the security services, I believe that is captured under “senior civil servants”, but I will confirm that and come back to the noble Lord. For now, I ask that the House agrees this amendment.

National Security Bill

Lord Purvis of Tweed Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

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

Yes, it was possibly a serious disruption.

We have all received a very large number of briefings calling for a public interest defence, and none of them has suggested that such a defence is a bad idea or that it would imperil national security. I record our thanks to all the organisations which have sent us these briefings, including the BBC, the NUJ, Index on Censorship, openDemocracy, Guardian News & Media Limited and Mishcon de Reya, among many others. The briefings have concentrated largely on the threat to investigative journalism posed by the criminal provisions in the Bill. We dwelled on these at Second Reading, in the first two days in Committee and, to some extent, earlier today, so I will not go into detail. Suffice it to say that the threat to investigative journalism of criminalisation and the accompanying very long sentences is real and chilling—chilling in that the threat will have a deterrent effect on investigative journalism and in that it represents a real and frightening, and not merely theoretical, threat to open democracy.

It seems to be generally agreed that these provisions risk breaching Article 10 of the ECHR, on freedom of expression, a concern that was expressed by the Joint Committee on Human Rights in its report on the Bill. The committee said, at paragraph 172:

“There seems to be a certain level of consensus that a whistleblowing or public interest defence is needed”.


It is also significant that a number of other countries, including our Five Eyes partners Canada, Australia and New Zealand, have some form of public interest defence to charges under similar legislation. However, it is not exclusively investigative journalism or even campaigning that is under threat. Those who expose wrongdoing by public servants or whistleblowing employees are equally at risk and may be equally deserving of an acquittal for an offence under this Bill after deploying a public interest defence.

It is for that reason that the public interest defence in our Amendment 75, in my name and that of my noble friend Lord Purvis of Tweed, goes further than protecting journalists alone. In so doing, it is close to the Law Commission’s recommendation in its 2000 paper, Protection of Official Data, which recommended that there should be a statutory public interest defence to unauthorised disclosure offences which should be available to anyone, civilians as well as journalists.

Therefore, our amendment would apply to all prosecutions for offences under Clauses 1 to 5 of the Bill, not just unauthorised disclosure offences, with which the Law Commission was concerned, but we regard that as right. Disclosure of restricted material is just as capable of being in the public interest as it is of assisting a friendly country’s intelligence service to apprehend or expose wrongdoing, as is entering a prohibited place to photograph or record corrupt transactions involving public servants. All can give rise to prosecution under the Act, and in each case there ought to be a public interest defence.

The defence we advocate is based on reasonable belief, so it relies on a test that is, in part, subjective—“Did the defendant believe their conduct was in the public interest?”—and, in part, objective: “Was that belief reasonable?” Juries are well used to applying that type of test and I suggest it is the appropriate one. By contrast, a wholly objective test of whether or not conduct was in fact in the public interest would impose a burden on juries to make what is essentially a political judgment, no doubt on the basis of conflicting evidence, expert and factual. That would not be the best test of the criminality of a defendant.

We have also maintained the principle that, once the defence is raised, it is for the prosecution to rebut it to the criminal standard of proof. That is the way our criminal law responds to a number of defences, reasonable self-defence being one such. We suggest it is the appropriate response. It would perhaps be different if we were concerned here with unauthorised disclosure by a member of the security or defence services who was bound by an agreed and binding confidentiality requirement. However, we are legislating here for criminal charges against private citizens, who, I suggest, are entitled to the benefits of the usual protections inherent in our criminal law.

In applying the test we advocate, juries would have to consider a number of factors set out in proposed new subsection (3) of the amendment. In formulating them, we have relied loosely, but not exclusively, on the factors mentioned in the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996 for the protection of whistleblowers. These factors are designed to steer juries towards a balance between confidentiality and the public interest in disclosure. But we do not argue that these are in final form; at this stage, they are designed to give shape to what we would like to see in a public interest defence.

I repeat what I said the other day in Committee: there is no genuine democratic protection in the requirement that the Attorney-General’s consent should be obtained for a prosecution to be brought. That is a welcome safeguard, but its point is to avoid unnecessary and unmeritorious prosecutions. What is needed for the determination of guilt or innocence on a public interest defence is a trial before a jury, where the defendant has a fair chance to put their case that they reasonably believe that the conduct of which they are accused and which is said to be criminal was in the public interest.

I am grateful to the noble Lord, Lord Coaker, for his amendment but, unlike him though it may be, we say it goes nothing like far enough. We need a defence when the Bill becomes law, not merely an assessment of its possible merits. I note that, in the other place, the amendment of Kevan Jones MP, the Labour Member for Durham and a member of the Intelligence and Security Committee, was nothing like as diffident as that proposed by the noble Lord, Lord Coaker. I also note that Tom Tugendhat, for the Government, promised to engage further with the Opposition on this issue. I sincerely hope that the Minister gives a similar promise to consider the public interest defence, not just because of what we say here but because of the wide interest and concern about the importance of this expressed across the nation. The incorporation of the public interest defence in the Bill would address many of the concerns that these Benches and others have expressed about the dangers to personal liberty in this legislation. I therefore beg to move.

[Lord Purvis of Tweed (LD)]

My Lords, I will add very briefly to the comprehensive introduction of the amendments. I thank my noble friend for drafting the amendment and allowing us to debate it in Committee. My remarks relate to the concerns raised by the BBC—just one of the organisations that has been in touch—which I think are extremely significant. I have been very fortunate in my work as the foreign affairs and development spokesman for my party in being able to travel, including to conflict-afflicted areas. Our journalists and our BBC around the world are one of the jewels in our country’s crown. When they raise significant concerns, I think that there is a duty on us to listen to them very carefully.

With our free and fearless press in this country, I think that there is a dichotomy. I am sure that those in the intelligence community know that our free press and our openness make us more at risk; in fact, many journalists doing their job are at risk themselves in many areas. But we are a safer and more open and democratic country because of the press, and we have a higher standing in the world in the long term. So when the BBC raises concerns, as my noble friend indicated, highlighting the Law Commission’s comments about whether we are considerably less likely to not be complying with Article 10 of the ECHR, it is of concern for those recommendations to be ignored.

With the Bill, it seems as if we are now going to be in stark contrast with comparable legislation in other countries, including our closest intelligence partners in the Five Eyes countries. I would like for the Minister, in responding to this, to state why we go far beyond our Five Eyes allies in this regard.

There are a couple of other areas that the BBC raised: one is the criminalisation of the publication of material that is already in the public domain. With sentences of potentially life and 14 years, the chilling effect on journalists could be marked. I hope that that will be responded to very clearly by the Government. Those powers go beyond the Police and Criminal Evidence Act with regards to protections provided for journalistic material.

In Committee so far, we have raised the breadth of the Bill, combined with the extensive sentences that are open to it, and I believe that the chilling effect on our media will have a negative impact on our country overall. If they do not accept my noble friend’s amendment today—which I suspect the Minister will not—I hope that the Government will engage with him and with others who want to see the Bill work, but work by protecting the essence of our country, which is what my noble friend outlined.

[Baroness Manningham-Buller (CB)]

My Lords, I think this amendment has substantial problems. If I may, I will remind the noble Lord, Lord Marks, of what Article 10 actually says—I have borrowed the iPad of the noble Lord, Lord Carlile, which is still working, my iPhone having died. The second paragraph of Article 10, after talking about freedom of expression, says:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security”,


and a string of other things are added to that. I just remind the noble Lord of that qualification.

If the BBC and others are making such remarks, then of course we should take them seriously. I have not received all this briefing, but perhaps that is understandable. It is superficially attractive to have a defence of public interest, but let me explain to the Committee why it is really very difficult. From it, the risk of release of national security information is substantial. What does that mean? National security information includes information that can indirectly identify the sources of intelligence, whose lives may be at risk. It can identify sources and methods that are vulnerable and unable to be defended.

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I hope that my explanation has been helpful in explaining why it is the Government’s clear position that these offences are sufficiently tightly drawn so as to be targeted at harmful espionage activity—

[Lord Purvis of Tweed (LD)]

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

[Lord Murray of Blidworth (Con)]

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

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

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

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

[Lord Purvis of Tweed (LD)]

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

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


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

[Lord Murray of Blidworth (Con)]

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