Rendition of UK Citizens

Lord Rosser Excerpts

Tuesday 24th July 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Answer to the Urgent Question.

Last Friday, the Minister wrote to me, on behalf of the Government, on the Crime (Overseas Production Orders) Bill, and said:

“With regards to death penalty implications, it is the long-standing policy of the UK to oppose the death penalty as a matter of principle. We will ensure that the operation of any agreement, including with the United States, is consistent with this position”.


Why, then, are we accepting a request by the United States to share evidence on the two individuals in question under mutual legal assistance, on the basis—to quote the Home Secretary’s letter of 22 June to the US Attorney-General—that,

“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought”?

Contrary to the content of the Answer to the Urgent Question, why did the Government not come to Parliament a month ago to disclose this complete change of approach and any reasons for it on a matter of basic human rights norms, however heinous the alleged crimes—a change of approach which is also contrary to the Minister’s letter to me of just four days ago?

[Baroness Williams of Trafford]

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

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

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


Part b) reads:

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

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

Lord Rosser Excerpts

Tuesday 24th July 2018 Lords Chamber

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

My Lords, these draft regulations form one part of the statutory underpinning of the new EU settlement scheme for resident EU citizens and their family members to obtain UK immigration status. The other parts are the Immigration Rules for the scheme and the associated fees regulations, which were both laid before Parliament on 20 July. Together, these measures will enable the first phase of the implementation of the EU settlement scheme to begin on 28 August.

This will involve the participation on a voluntary basis of employees of 12 NHS trusts, and employees and students of three universities, in the north-west of England. By the way, I had no part in that decision. This phase will enable the Home Office to test the relevant processes and ensure that they work effectively before we begin to open the scheme more widely from later this year.

I trust that the House will welcome the early progress in bringing forward this important scheme, and I thank the 15 institutions that have agreed to take part in the initial phase. It is appropriate that the National Health Service and the higher education sector, which both benefit so greatly from the contribution of EU citizens, should be involved in helping to establish the EU settlement scheme.

On 21 June the Government published a statement of intent on the EU settlement scheme, and I repeated in this House the Oral Statement given by my right honourable friend the Minister of State for Immigration. The statement of intent set out details of how EU citizens and their family members will be able to obtain settled status in the UK. It also set out how the application process will be straightforward and streamlined.

There will be three core criteria that EU citizens will need to meet to be granted status under the EU settlement scheme: proving their identity, showing that they are resident in the UK, and declaring whether they have any criminal convictions. The draft regulations apply the existing powers to take and retain biometrics which apply across the immigration system to the new Appendix EU to the Immigration Rules, which will provide the basis for the Home Office to grant leave to EU citizens and their family members under the EU settlement scheme.

As we set out in the statement of intent, and as we currently require for applications for residence documents under EU law, the draft regulations will enable us to require EU citizens and their family members to provide a facial photograph as part of their application for status under the EU settlement scheme. We need this to help check their identity and to confirm that the passport or identity card they have provided belongs to that person. It will also help us to identify and deter fraudulent applications.

As happens now across the immigration system, the draft regulations will enable us to require non-EU citizen family members applying under the scheme to enrol their fingerprints, where they have not already done so in being issued with a biometric residence card under EU law. We will not be taking fingerprints of EU citizens applying under the scheme.

Recording biometric data and biographical information is important because it enables us to confirm and fix a person’s biographical details to their unique biometric identifiers, and establishes a reliable link between the holder and their status. It also allows us to check against existing records to make sure that the applicant is not known to us or to the police by another identity.

Under the scheme, EU citizens—and non-EU family members who already hold a biometric residence card—will be able to upload a passport-style photograph of themselves as part of the streamlined digital application process. Non-EU family members who do not already hold a biometric residence card will, as now, need to attend one of our application centres to enrol their fingerprints and facial image. Consistent with our approach across the immigration system, non-EU citizen children under the age of five will not be required to enrol fingerprint biometrics. A facial photograph will be required for security and safeguarding reasons, but their fingerprints will not be taken.

Approval of the regulations is an important step in getting the EU settlement scheme up and running, thereby enabling us to provide real certainty to resident EU citizens and their family members, and to their employers, about the basis on which they will be able to remain here permanently. I commend these regulations to the House.

[Lord Rosser (Lab)]

I thank the Minister for setting out the purpose and content of this instrument. I also take this opportunity to thank her officials for meeting me yesterday. If I still have not understood precisely what the regulations are about then that is my fault, rather than their inability to explain it to me.

I want to make one or two points, because the meeting with officials yesterday was helpful. As I understand it—I think this is what the Minister was saying—the next stage is to go to a pilot scheme, which will begin from 28 August. As she also said, it covers certain NHS workers and students. What I want to be clear on is, first, how long will that pilot scheme last? Secondly, at the end of that scheme will a further statutory instrument be needed to extend it to other groups? In other words, will there be an opportunity in this House for a proper debate about how the pilot scheme has worked so that the Government will not simply decide, off their own bat, to extend the scheme to other groups on the basis that the Government think that the pilot has been successful? I would like an assurance on that point.

Can the Minister also say whether the intention is to extend the pilot scheme in stages to other groups or, at its conclusion, to extend it across the board? As I understand it, there will be the requirement for a facial photograph and, as I think the Minister said, in respect of non-EU citizen family members a fingerprint requirement as well. Simply to get this on the record, as much as anything, what will happen as far as the individual is concerned if the facial photograph supplied does not meet the requirements of the check against the ID photograph? Will they be told why it is not considered a facial photograph that meets the requirements? Will they be contacted or given help by Home Office officials in a positive way, bearing in mind that, as I recall, the Government have said that the approach with applications of this kind will be not “Why should it be agreed?” but “Why should it not be agreed?”, and that there would therefore be a positive approach from Home Office officials? I would like confirmation that that would apply, for example, where the facial photograph was not deemed to meet the requirements.

I would like to raise one or two other points. The Explanatory Memorandum refers to the consultation outcome and says that account was taken of those discussions. It says:

“The Home Office has not undertaken a full public consultation, but the policy has been discussed with its internal and external stakeholders”.


What points were made in those discussions of which account was taken, and what points were made that the Government did not feel it necessary to take into account? Who were the,

“groups representing EU citizens in the UK”,

with whom this policy was discussed, as referred to in paragraph 10.1 on the “Consultation outcome”?

What will the cost be to the individual of going through this process? I am sticking strictly to the statutory instrument in front of us in relation to the facial photograph and the fingerprints since, subject to what the Minister may say, for a fairly large family it could presumably add up to a not insignificant sum of money. No doubt that is something the Minister will address.

--- Later in debate ---

[Baroness Williams of Trafford]

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

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

[Lord Rosser]

I thank the Minister for giving way. When she mentioned “any extension”, is that any extension beyond the pilot?

[Baroness Williams of Trafford]

Any extension in terms of what the pilot entailed or beyond what was in the pilot? I am not entirely clear about the noble Lord’s question.

--- Later in debate ---

[Lord Rosser]

My point was that there is to be a pilot scheme. Will there be an opportunity for a discussion in this House if it is decided, as presumably it will be, to extend the pilot scheme to other groups, or will the Government just decide that the pilot scheme has been successful and be able to extend it without any debate or discussion in this House? That was the point of my question about whether there will need to be a further statutory instrument.

[Baroness Williams of Trafford]

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

Immigration Detention: Shaw Review

Lord Rosser Excerpts

Tuesday 24th July 2018 Lords Chamber

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

My Lords, with the leave of the House, I will repeat a Statement made in the other place by my right honourable friend the Home Secretary.

“With permission Mr Speaker, I would like to make a Statement on immigration detention. As the House knows, our immigration system is made up of many different and interconnected parts. Immigration detention is an important part of that system. It encourages compliance with our Immigration Rules; protects the public from the consequences of illegal migration; and ensures that people who are here illegally or are foreign criminals can be removed from this country when all else fails.

Detention is not a decision that is taken lightly. When we make the decision to detain someone, their welfare is an absolute priority. The Windrush revelations have shown that our immigration system as a whole is not perfect and that some elements need much closer attention, and there are lessons we must learn. That is why I welcome the second independent review by Stephen Shaw into immigration detention, commissioned by this Government, which I am laying before the House today. Copies are available from the Vote Office and on GOV.UK. I am very grateful to Mr Shaw for his comprehensive and thoughtful report. It recognises the progress this Government have made in reforming immigration detention since his last report in 2016, but it also challenges us to go even further.

As the review notes, we have made significant changes to detention in the UK in recent years. Over the past three years, we have reduced the number of places in removal centres by a quarter. We detained 8% fewer people last year than the year before. Last year, 64% of those detained left detention within a month, and 91% left within four; and 95% of people liable for removal at any one time are not in detention at all, but are carefully risk-assessed and managed in the community instead.

In his report, Stephen Shaw commends the ‘energetic way’ in which his 2016 recommendations have been taken forward. He notes that conditions across immigration removal centres have ‘improved’ since his last review three years ago. We now have in place the adults at risk in immigration detention policy to identify vulnerable adults more effectively and make better-balanced decisions about the appropriateness of their detention. We have also strengthened the checks and balances in the system, setting up a team of special detention gatekeepers to ensure decisions to detain are reviewed. We have also created panels to challenge the progress on detainees’ cases and their continuing detention. We have taken steps to improve mental health care in immigration removal centres and we have also changed the rules on bail hearings. Anyone can apply for bail at any time during detention. In January, we further changed the rules so that detainees are automatically referred for a bail hearing once they have been detained for four months. All of this is good work.

However, I agree with Stephen Shaw that these reforms are still bedding in and that there have been cases and processes that we have not always got right. Now I want to pick up the pace of reform and commit today to four priorities going forward.

First, let me be absolutely clear that the Government’s starting point, as always, is that immigration detention is only for those for whom we are confident that other approaches to removal will not work. Encouraging and supporting people to leave voluntarily is of course preferable. I have asked the Home Office to do more to explore alternatives to detention with faith groups, NGOs and within communities. As a first step, I can announce today that we intend to pilot a scheme to manage vulnerable women in the community who would otherwise be detained at Yarl’s Wood. My officials have been working with the UNHCR to develop this pilot, which will mean that rather than receiving support and care in an immigration removal centre, the women will get a programme of support and care in the community instead.

Secondly, the Shaw review recommends how this Government can improve the support available for vulnerable detainees. Mr Shaw describes the adults at risk policy as ‘a work in progress’. We will continue that progress, ensuring that the most vulnerable and complex cases get the attention that they need. We will look again at how we can improve the consideration of Rule 35 reports on possible cases of torture, while avoiding abuses of these processes, and we will pilot an additional bail referral at the two-month point, halving the time in detention before a first bail referral. We will also look at staff training and support to make sure that the people working in our immigration system are well equipped to work with vulnerable detainees, and we will increase the number of Home Office staff in immigration removal centres.

Thirdly, in his report Stephen Shaw also rightly focuses on the need for greater transparency around immigration detention. I will publish more data on immigration detention, and today I have commissioned the Independent Chief Inspector of Borders and Immigration to report each year on whether and how the adults at risk policy is making a difference.

Fourthly and finally, I also want to see a new drive on dignity in detention. I want to see an improvement to the basic provision available to detainees. The practice in some immigration removal centres of having three detainees in rooms designed for two will stop immediately. I have also commissioned an urgent action plan for modernising toilet facilities and we will also pilot the use of Skype, so that detainees can contact their families overseas.

I am aware of the arguments made on time limits for immigration detention. However, as Mr Shaw’s review finds, the debate on this issue currently rests more on slogans than on evidence. That is why I have asked my officials to review how time limits work in other countries and how they relate to any other protections within their detention systems, so that we can all have a better-informed debate and ensure our detention policy is based on what works to tackle illegal migration, but is also one that is humane for those who are detained. Once this review is complete, I will further consider the issue of time limits on immigration detention.

The Shaw review confirms that we are on the right track in our reforms of immigration detention and that we should maintain a steady course. But Stephen Shaw also identifies areas where we could and should do better. My goal is to ensure that our immigration system, including our approach to immigration detention, is fair and humane. This is rightly what the public expect; they want rules which are firmly enforced, but in a way which treats people with the dignity they deserve. The changes that I have announced today will help to make sure this is the case. I commend this Statement to the House”.

My Lords, that concludes the Statement.

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement. I cannot say that I have read the Shaw report. I was probably in a very similar situation to the Minister, in that I received it only an hour or so ago. Inevitably, that rather restricts what one can say about it. One thing that I have noticed is that, under the acknowledgements at the beginning and in the foreword by Stephen Shaw, there is a date: April 2018. Why is this report being brought to Parliament only in July 2018 and on the last day, effectively the last afternoon, before the Summer Recess? What exactly has been going on since then, if I am correct in thinking that he submitted his report in April 2018, which has prevented the report being published?

The report that we have—this second Stephen Shaw report into immigration detention—does not say that everything is right. It simply says that the situation is better than it was, which is a very different thing. The report is not quite the supportive document that the Statement seems to suggest. Let us look at one or two of the points made in the report.

Last year, it seems that 64% of those detained left detention within a month, and 91% left within four months. It depends on what one’s definition is, but detention was meant to be only for a short period of time, pending removal. Last year it was found that over half of those in immigration detention were released back into the community—a point made by Stephen Shaw in this report. So if more than half in immigration detention were released back into the community, why was their detention needed at all? The Government’s Statement says that,

“immigration detention is only for those for whom we are confident that other approaches to removal will not work”.

We are talking about large numbers of people who are detained and not removed but are released back into the community. A number of people seem to be detained who should not be, which is a point made by Stephen Shaw in this report.

Stephen Shaw comments on the issue of indefinite detention and time limits, saying:

“I have not directly considered the case for a time limit on detention”,


so we do not actually know what his view is on that issue. But he says in his foreword that,

“the number of people held for over six months has actually increased. The time that many people spend in detention remains deeply troubling”.

That is a point that I do not think was highlighted in the Government’s Statement on the report. Why has the number of people held for over six months increased? Do the Government agree with Stephen Shaw that the time that many people spend in detention remains deeply troubling?

Virtually all the population reduction in immigration detention has been on the male side, while the number of women in detention has fallen by a much smaller percentage. Yet there is a high level of vulnerability among women detainees—the very people one would have thought should not have been detained. Can the Minister say why that has happened?

The report deals at some length with the adults at risk policy. It was introduced by the Home Office and does not appear to be working properly in its objective of reducing the numbers of vulnerable people in detention. In his visits to immigration removal centres, Stephen Shaw found many people who he felt should not be there, and he comments in his report that,

“every one of the centre managers told me that they had seen no difference in the number of vulnerable detainees”,

and that in some cases the numbers had gone up. He also calls for,

“a more joined-up approach between the Home Office and its partners across Government”,

which, he says,

“applies particularly to the Ministry of Justice”.

In the section in the report on alternatives to detention, Stephen Shaw draws attention to some of the consequences of the policies restricting access to services that go under the umbrella of the hostile environment, which I believe has now been rebranded as the compliant environment. While he says in his foreword:

“Some of what I say in the pages that follow reflects very well upon the Home Office, the Department of Health and Social Care, and NHS England”,


he goes on to say that:

“I have found a gap between the laudable intentions of policymakers and actual practice on the ground”.


He also comments that,

“the Home Office’s strategy of expanding capacity by adding extra beds into existing rooms had exacerbated overcrowding and created unacceptable conditions”.

Why has the Home Office’s strategy led to the arising of that situation, upon which Mr Shaw has commented adversely? He repeats again in his report his concern that,

“more needs to be done to ensure that individuals who are at risk are not detained”.

I conclude by raising three questions for the Government in addition to those I have already asked. We are in a situation where the Chief Inspector of Prisons, the all-party parliamentary groups on migration and on refugees, the Bar Council, the British Medical Association and NGOs have all called for an end to indefinite detention. Do I take it from the Statement that the Government are still not prepared to commit to that objective? Perhaps the Minister could confirm that one way or the other.

I think I am also right in saying that the previous review called for an absolute exclusion on pregnant women in detention. But as I understand it, in 2017, 53 pregnant women were detained, almost all of them entirely unnecessarily, and were subsequently released into the community. If pregnant women are still being detained, will the Government commit now to an absolute exclusion of pregnant women and children from immigration detention? There is also currently no proactive screening process so that survivors of sexual and gender-based violence and others who are recognised as vulnerable under the adults at risk policy are identified before they are detained. Will the Government commit to introduce a proactive screening process to achieve this objective?

Finally, now that we have had the follow-up Shaw review, how will the Government ensure that the detention estate continues to be reviewed and assessed? I note that the Statement made reference to the review of the adults at risk policy, but there is more to it than simply that policy, vital and important though it is, so I ask that question once again—bearing in mind that the Shaw review has once again said that the situation is far from what it should be.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for repeating the Statement regarding adults at risk and vulnerable people in the detention system. I have always thought that it would take someone very resilient not to become at risk or vulnerable to the effects of detention once detained, however they started that process. That applies even to definite detention, and far more to indefinite detention, when the absence of hope is added to the other conditions experienced. I was grateful to the Minister’s colleague Caroline Nokes, the Immigration Minister, whom I met with the noble Lord, Lord Hylton, the other day, for confirming the Home Office’s aspiration of a humane system. I welcome the direction in which the Government are going on this.

I will mention again a report to which I have referred before in your Lordships’ House—the recent report by the Red Cross on the long-lasting impact on mental health of everyone surveilled after release from detention; in other words, release from physical detention is not the end of the experience.

There is always talk of numbers and percentages, which is helpful, but it is worth remembering that each person detained is an individual. The silver lining to the Windrush experience was that it rather confirmed that; that is certainly how they were seen by the public during the Windrush reports.

A number that I find shocking is the standard number of days to which the Home Office works in dealing with asylum claims. Also, if someone does not go when he is told to leave the country, he is automatically regarded as a flight risk, to the extent that even when he reports to the Home Office he is picked up from there and put into detention.

I am a member of the Joint Committee on Human Rights, which this morning announced a new inquiry into immigration detention, because human rights—particularly Article 5 of the convention—are engaged. The committee was planning this inquiry anyway, but the evidence that we heard in an inquiry into the Windrush generation’s experience particularly drew our attention to issues including access to legal advice, the possibility of challenge to detention and accountability.

Policy is always only a part of the story. Implementation and practice are the other very important side of the coin and, of course, that is very much what Stephen Shaw has focused on. He and Mary Bosworth deserve our thanks for all the work that has gone into this report. I have not been able to read this door-stopper yet—it is about half the size of the last door-stopper, but even so—but I will. It seems to me that the reasons for detention given in the Statement rather illustrate that detention is not, as we are so often told, treated as the last resort, although I believe that it should be the very last resort.

I want to pick up a number of points made by the Minister. She mentioned that the team of special detention gatekeepers has been set up—this is part of the recent history—but the gatekeeper process does not seem to have been working as well as planned. The Statement refers to ensuring that decisions to detain are reviewed. What about the initial decision? Should there not be investigations prior to detention to confirm that there are no indicators of vulnerability?

The Statement also refers to immigration bail, described as all being “good work”. Of course, it has been very welcome, but it has not been unfailing. The Minister will recall our exchanges about the problems that detainees have in accessing education. Importantly, it is clear that detainees do not all know that they can apply for bail at any time.

With regard to alternatives to detention, we have heard the organisations that the Home Office is going to work with, but can the Minister assure us that work will go on with other jurisdictions where there are very different practices and that the subject will be not just those whom the Home Office regards as vulnerable but much wider? Mr Shaw comments rather delicately that he is not certain that there has been significant investment in this since the first report.

I must leave time for the Minister to respond—

Cannabis: Medicinal Use

Lord Rosser Excerpts

Monday 16th July 2018 Lords Chamber

[Baroness Williams of Trafford]

My noble friend will know that international evidence, as well as the limited evidence here, is drawn on. I hope that that answers the questions of both my noble friend and the noble Lord.

[Lord Rosser (Lab)]

The Government have said that they have no plans to decriminalise cannabis for recreational use, but according to press reports at the weekend, there was a fall in the number of people prosecuted for possession of cannabis last year, compared with 2015, of 19%, and a 34% fall in the number of cautions for possession of cannabis issued by the police over the same period. In the absence of any credible evidence that the use of cannabis for recreational purposes has recently declined sharply, is chief constables deciding, for whatever reason, not to pursue cases of possession of cannabis to anything like the same level as even two years ago really an operational decision for them, as opposed to a strategic or policy decision that should be taken by elected police and crime commissioners or the Home Secretary?

[Baroness Williams of Trafford]

It is of course up to PCCs to decide the policy priorities for their local areas, and of course those will be different in different areas depending on the prevalence of drug use. The noble Lord is right that the numbers have dropped, but—and I see this, depressingly, in Manchester—the use of synthetic cannabinoids is rife in some cities.

Operation Conifer: Funding

Lord Rosser Excerpts

Thursday 12th July 2018 Lords Chamber

[Baroness Williams of Trafford]

I most certainly acknowledge my noble friend’s point—that for many people this is a very unsatisfactory outcome. In terms of further things that the Home Secretary might be able to do, it is for the PCC to instigate an inquiry, should he wish to do so. He has stated to me in correspondence that he does not want to, for several reasons, but the option is open. The court case to which my noble friend refers will of course determine in due course.

[Lord Rosser (Lab)]

I am sure that Members of the House are still somewhat baffled by the answers that have been given about why the Home Secretary has, as the Minister indicated, made his decision about an investigation by the inspectorate. However, I will move on from that and simply ask: is it not the case that Operation Conifer was more of a national investigation than simply a Wiltshire Police matter, and is not the logical extension of that that the Home Office should also be prepared to provide funding for an independent inquiry into the conduct of Operation Conifer, which in reality was simply delegated to Wiltshire Police?

[Baroness Williams of Trafford]

Operation Conifer was led by Wiltshire Police, so it was led by a local police force and was not a national operation. In terms of the funding for it, the Home Office has already provided £1.1 million of special grant. If special grants are applied for, the Home Office will consider them.

Crime (Overseas Production Orders) Bill [HL]

Lord Rosser Excerpts

2nd reading (Hansard): House of Lords
Wednesday 11th July 2018 Lords Chamber

[Lord Rosser (Lab)]

My Lords, this is perhaps a fairly unique Second Reading, in that the Minister will be making the same number of speeches as the rest of your Lordships’ House. I apologise in advance for the fact that I will probably speak for longer than either the Minister has so far, or the noble Lord, Lord Paddick.

The primary purpose of the Bill is to permit a court in this country to require a person or company located overseas, such as an overseas service provider, to produce stored electronic information, as such a court could if the information were located or controlled in the UK. This is achieved in the Bill by creating a new overseas production order that has extraterritorial scope. However, this jurisdiction can be exercised only if an international co-operation arrangement or bilateral agreement enabling this to happen, and to which we are a party or in which we participate, has been agreed. UK law enforcement officers would apply to a judge for an order requiring the production of electronic evidence for the purposes of investigating or prosecuting serious crime, including terrorism offences. The effect of the overseas production order, if granted, would be to require an overseas provider to disclose electronic information held by them, provided that this is supported by an international co-operation agreement with the country concerned.

The present position in respect of electronic data that is outside the reach of domestic UK court orders and is needed for evidential purposes is that mutual legal assistance is available where a mutual legal assistance treaty has been signed. In 2016, the UK had bilateral mutual legal assistance treaties with some 40 countries and was also party to multilateral MLATs through bodies such as the EU and the Council of Europe. This present form of judicial co-operation means that a requesting country can seek assistance from an executing authority or country, and that authority or country is then responsible for collating the evidence using its own judicial or other processes and orders.

However, as the Minister said, the MLA process can be slow, requiring as it usually does significant government-to-government liaison, and may not be speedy enough in some cases to enable the evidence being sought to be obtained in the timespan required to contribute meaningfully to an investigation or help to secure a successful prosecution. Indeed, MLAT requests submitted to the United States take an average of approximately 10 months to complete. Sir David Anderson, the then Independent Reviewer of Terrorism Legislation, said in a 2015 report,

“there is little dispute that the MLAT route is currently ineffective”.

With electronic information becoming increasingly important in the investigation and prosecution of criminal offences, this is regarded as an increasingly serious lacuna in the pursuit of those committing serious offences, since the companies providing services that generate or store electronic data or do both are often located outside this country. This means that the data they generate or store is currently outside the reach or range of the orders of our courts, which lack extraterritorial scope and cannot be used to require overseas providers to provide timely information.

The impact assessment for this Bill states:

“The issues with access to electronic data held by overseas providers and the use of MLA has been recognised for a while with discussions taking place between the UK and other countries to explore options to address the issues with the MLA process”.


We know from the impact assessment that one of those other countries is the United States, but which are the other countries with whom we have been discussing this issue?

Apparently our law enforcement and security agencies have indicated that US communication services are used by 90% of their suspects and that, in almost every terrorism investigation, those they investigate use services provided by US communications service providers. As far as the United States is concerned, the impact assessment tells us that a bilateral data access agreement is being finalised with the UK, but that,

“in anticipation and preparation for it, the US passed its Clarifying Lawful Overseas Use of Data (CLOUD) Act in March 2018, enabling the US legislative change required to give effect to this agreement”.

The CLOUD Act provides authorisation for a new form of international agreement to be concluded by the United States through which foreign Governments can seek data directly from US companies without such requests having to be reviewed individually by the US authorities. However, the CLOUD Act also requires that when the US concludes an agreement with another country, such as the UK, that country must allow the US reciprocal rights of data access.

Since bilateral agreements with another country or countries will need to be concluded for the provisions of this Bill to be implemented, presumably we shall be required to provide the same access arrangements to electronic data in this country as we are seeking from them—namely, that an order made in their courts will be capable, if necessary, of being enforced here with apparently little or no judicial oversight in this country. The Explanatory Notes say that the electronic data in question may include the “content of private communications” being made available to the state, and that:

“These intrusions into ECHR rights can be justified as necessary in a democratic society for the prevention of disorder and crime and in the interests of national security and public safety, and are proportionate in light of the requirements that must be met before a judge can make an overseas production order, and the other safeguards set out in the Bill. To the extent that the electronic data made available may include journalistic material, the requirement that an order is made by a judge provides prior judicial oversight for the exercise of the power, and accordingly an Article 10 compliant safeguard”.


Those words might not be accepted without question by everyone.

Clause 4 sets out the conditions and restrictions under which an overseas production order may be made. These include that the judge must be satisfied,

“that there are reasonable grounds for believing that an indictable offence has been committed and proceedings in respect of the offence have been instituted or the offence is being investigated”.

Alternatively, the judge must be satisfied that,

“the order is sought for the purposes of a terrorist investigation”.

According to the Explanatory Notes:

“This reflects the criteria under which production orders may already be sought against those in the UK”,


under the Terrorism Act 2000. The judge must also be satisfied,

“that there are reasonable grounds for believing that all or part of the electronic data”,

applied for will be of “substantial value” to the investigation or proceedings, and that it is “in the public interest” that this data is made available to the investigation or proceedings.

In considering whether something is in the public interest, the judge must consider the benefit to the proceedings or investigation that this electronic data is likely to have and,

“the circumstances under which the person against whom the order is sought has possession or control of any of the data”.

Further additional requirements that must be met in order for an overseas production order to be made can be specified by the Secretary of State through regulation under the terms of the Bill. Some of the factors on which the judge has to be satisfied before granting an order are potentially subjective, including whether an order being sought is for the purpose of what could be regarded as a terrorist investigation, whether the data being applied for will be of substantial value to the investigation or proceedings, and that it is in the public interest that the data is made available.

The UK has to be a party to an international co-operation agreement for the terms of the Bill to apply. However, will that arrangement or agreement with another country—and there could be up to 40—have to incorporate the same standards and criteria, and interpretation of those criteria, that would apply in our courts before making an order when a court in that other country makes an overseas production order for a British national or company based here to produce stored electronic data or give access to it? If that is the case—and the Bill has a potential problem if it is not—how will we be able to satisfy ourselves that the other country making such an order will, for example, be interpreting the requirements relating to “substantial value”, “public interest”, “terrorist investigation” and “excepted electronic data” in the same way as we would anticipate our courts interpreting those words in determining whether or not the case has been made for granting an overseas production order?

If we believe that a country with which we have an international co-operation agreement or bilateral agreement has not been applying an appropriate interpretation of the criteria for determining whether to make an overseas production order, can we step in and stop it being enforced against the named person or company in this country? If so, who or what body or authority in the UK can nullify the production order in question? If that cannot be done, is that not a potential concern about the proposed bilateral arrangements set out in the Bill, particularly as they are geared to giving greater speed to the process than the MLA route? Is there any right of appeal in this country against an overseas production order applicable here but made in another country with which we have a bilateral co-operation agreement?

If the Government’s view is that, under the new overseas production orders, there will be no change, in either direction, in the interpretation of the criteria or basis for making or declining overseas production orders for electronic data compared with the current mutual legal assistance arrangements, surely that cannot definitely be the case in the future, because at present it is the court in the country in which the order for electronic data has to be executed that makes the order, whereas under the new arrangements in the Bill it will be the court in the country where the order is being sought that will make the order and determine whether or not the case for the overseas production order has been established. What would be the position if the overseas production order for the electronic data in question was being sought in respect of a case or investigation where the outcome for a defendant, if found guilty, could be the death penalty, as might apply in the United States? Would we allow the electronic data to be handed over or accessed in such circumstances, as we would apparently be required to under the terms of the Bill and any bilateral agreement?

Can the Minister say within what timescale it is expected that overseas production orders will produce the required electronic data or access to it, compared with the time taken through the present mutual legal assistance process? While I appreciate that many service providers and technology companies in other countries, including the US, are likely to provide the electronic data being sought once the overseas production order has been made by a UK court—and, no doubt, vice versa as well—can she confirm what will happen if they decline to do so, since neither the US CLOUD Act nor any international agreement made under it would create a legal obligation for US service providers to comply with a data request from a foreign Government, including that of the UK?

The Explanatory Notes suggest that non-compliance with an overseas production order made by a UK judge could give rise to contempt of court proceedings but, if I am correct, some further detail from the Government as to how this course of action would in practice work and be effective in this situation would be helpful. Likewise, can the Government explain what action could or would be taken if a person or company in this country named in a production order from a country with which we have a bilateral agreement declined to hand over or give access to the electronic data sought under that order?

The Bill, as we know, seeks to provide a speedier alternative to the mutual legal assistance route in respect of electronic data by enabling UK domestic courts to issue a production order rather than, as now, requesting a foreign court to do so following an MLA request. Under the required international agreement with the country concerned, this would almost certainly be a two-way process. Under the current MLA process, first, how many orders have we been seeking per year in respect of electronic data which have required the assistance of another country under MLA in making and executing those orders, and from which countries have we required such assistance? Secondly, how many orders per year sought by other countries have we been asked to make and execute under MLA arrangements in respect of electronic data, and by which other countries? What percentage of overseas orders in both directions under MLA are currently in respect of electronic data per year? What is the anticipated increase in each direction for orders for electronic data under the new arrangements for overseas production orders set out in the Bill, since the Explanatory Notes suggest that applications for overseas production orders for electronic data have been suppressed because of the time delay in executing such orders under the MLA process?

As the noble Lord, Lord Paddick, said, in April this year the European Commission published proposals for EU legislation to create a European production order as part of a package of measures on electronic evidence. The proposed European production order would allow a judicial authority in one EU member state to request electronic evidence directly from a service provider offering services in the EU and established or represented in another member state, regardless of the location of data. Where does the proposed European production order fit in relation to the new overseas production order process set out in the Bill? Do the Government intend to opt into the European production order measure or regulation? Finally, I say simply that while we support the objectives of the Bill, we want responses to the potential concerns we have raised about the possible application of its provisions.

Amesbury Update

Lord Rosser Excerpts

Monday 9th July 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement made earlier in the House of Commons. We associate ourselves with the condolences already expressed to the family and friends of Dawn Sturgess, who, tragically, has died after exposure to the nerve agent Novichok, and extend our good wishes for a full recovery to Charlie Rowley. We also take this opportunity to express again our thanks and gratitude to the security and intelligence services, the military, the police, emergency services and medical staff, who have worked continuously to protect and look after us and to help ensure that we have a country in which it is safe and enjoyable to live.

Four months ago it was the attempted murder of the Skripals. That was awful and outrageous enough. Now, it looks like not attempted murder but in all probability, in effect, the murder of Dawn Sturgess and the attempted murder of her partner Charlie Rowley, two innocent British nationals, on our own soil. The circumstantial evidence that the attempted murder of the Skripals was an act by the Russian state against Britain is strong—certainly strong enough to convince many of our allies to act with us against Russia.

Can the Minister say what the prospects are for naming, if not apprehending, the actual perpetrators of the earlier attempted murders four months ago, and now of the very recent murder and attempted murder, in effect, of two British nationals? The Government have stated that the risk to our citizens is low, but it is lethal when it happens, and presumably is not quite so low for people in Salisbury and its vicinity, compared with elsewhere in the country.

The Chief Medical Officer gave advice after the Salisbury incident that people should not pick up any unknown or already dangerous objects such as needles and syringes. In the light of what has now happened to Dawn Sturgess and Charlie Rowley, are the Government satisfied that that advice was repeated frequently and regularly enough, particularly to people in Salisbury and the surrounding areas? Messages only tend to get through if they are said and given time and again. Could the Minister say how often, by what means and to whom that message was repeated over the last four months?

The Home Secretary said last Thursday that it was,

“completely unacceptable for our people to be either deliberate or accidental targets, or for our streets, parks or towns to be dumping grounds for poison”.—[Official Report, Commons, 5/7/18; cols. 535-36.]

I am sure we would all agree with that. But what advice do the Government now intend to give to the people of Salisbury and the surrounding areas, particularly in view of what has just happened? If the Government are sure that no more of the poison Novichok has been dumped, to use the Home Secretary’s word, no doubt the Minister will tell us that when she responds. But if the Home Secretary is not sure, how will the Government update the advice given after the attempted murder of the Skripals to reflect the fact that the threat from the poison Novichok being dumped has materialised in such a tragic and horrific manner? Equally importantly, what steps will the Government take to maximise the chances of getting their message and advice across to as many of our fellow citizens as possible, not just now but in the days and weeks ahead?

I will make two final points. First, how long will it take to develop the suitable support package for local businesses that was mentioned in the Statement? Secondly, what exactly is the role and responsibility of the elected police and crime commissioner for the force area affected when an attempted murder and an actual murder take place of British nationals, quite probably as a result of actions by a hostile state, within the area of that PCC when the investigation is being led by detectives from Counter Terrorism Command?

[Lord Paddick (LD)]

My Lords, I also thank the Minister for repeating the Statement. Our thoughts are with the friends and family of Dawn Sturgess and Charlie Rowley, who must be very concerned about him, as he is still critically ill. Clearly, we support the Government, the police, the security services and the military in their attempts to uncover what has happened here and in the earlier poisoning of the Skripals. We also commend the staff at Salisbury District Hospital for their unstinting efforts to treat the victims.

Assistant Commissioner Neil Basu, the head of UK counterterrorism policing, which is leading the investigation, said of the most recent incident:

“This means they must have got a high dose and our hypothesis is that they must have handled a container that we are now seeking”.


Can the Minister confirm that the police have not been able to talk to either victim and therefore do not know for sure how they were contaminated, what sort of container they are looking for or where to find it?

One hundred detectives were already working round the clock to try to establish how Dawn Sturgess and Charlie Rowley were contaminated with Novichok. What will change as a result of this becoming a murder inquiry? Has what has been assumed to be an accidental poisoning resulting in the tragic death of Sturgess been caused by an even higher dose of nerve agent than the deliberate poisoning of the Skripals, or has this case been fatal for some other reason?

Neil Basu also said that he was “unable to say” whether the incident in Amesbury was linked to the poisoning of the Skripals on 3 March, although that was the police’s working hypothesis. Yet the Statement says that both individuals were exposed to the same type of Novichok used to poison Sergei and Yulia Skripal in March. Can the Minister explain the difference between what appears to be those two very different statements?

There is reportedly growing unease among some people in Salisbury and Amesbury that they are not being given enough information. Ricky Rogers, a Wiltshire councillor and the leader of the Labour group on Wiltshire council, said that the death of Sturgess had “heightened tension”. He said:

“Local residents have never been told enough about the first incident back in March. I think someone from counter-terrorism needs to come here and tell us what they know”.


I repeat the question that I asked the noble Baroness on Thursday, to which I received no reply. What can she say to the people of Salisbury and Amesbury to reassure them?

Registration of Marriage Bill [HL]

Lord Rosser Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 29th June 2018 Lords Chamber

I felt that, since this is the opportunity to raise issues—I am sorry that the right reverend Prelate might not have had notice through the various email contacts that I was going to raise this—it would be wrong of me just to ignore it at this stage. As I say, it is not to carp; it is intended to anticipate a possible problem, and I am probably wrong about it.

[Lord Rosser (Lab)]

I will be brief. We supported the Bill at Second Reading, since when we have had the opportunity, as we all have, to read the report of the Delegated Powers and Regulatory Reform Committee, which has been quite forthright in the views it has expressed about the Bill’s wording as it stands. The committee pointed out that Clause 1 conferred very broad powers on the Secretary of State to make regulations about marriage registration. Indeed, Clause 1(2) includes a power to amend or repeal any provision made in any Act of Parliament. The committee expressed concern that the broad power was far wider than required to meet the policy aims of the Bill. It also had reservations, which the right reverend Prelate has already addressed, relating to Clause 2.

The amendments that have been brought forward are intended to address the quite justifiable concerns raised by the Delegated Powers and Regulatory Reform Committee. I assume that they achieve that objective. I noticed that the right reverend Prelate said that he has worked with officials at the Home Office. I do not know whether that means that he has worked with officials from the Home Office over not only these amendments but the original wording of the Bill, because I am curious as to why the Bill was drawn up in such wide-ranging terms, as far as the use of delegated powers is concerned, in the first place when presumably it could have been drawn up in the terms that these amendments seek to change the wording of the Bill. Would I not be right in saying that it would have been far more satisfactory if the Bill had been drawn up in the terms of the amendments we are now dealing with in the first place?

[Lord Blunkett (Lab)]

My Lords, I shall not hold up the Committee. As a Methodist, and having sat through Second Reading and heard the right reverend Prelate this morning, I just wanted to say how grateful I am for a masterclass in how the Church of England operates.

--- Later in debate ---

[Baroness Morris of Bolton (Con)]

My Lords, I supported the Bill at Second Reading. We had a good debate, but it was made quite clear that for the Bill to have the best chance of reaching the statute book, it had to leave your Lordships’ House unamended—apart from the technical amendments of the right reverend Prelate the Bishop of St Albans. I have great sympathy with what the noble Lord, Lord Faulkner of Worcester, said and I am very glad that he does not seek to press this, because I think it would be very wrong if we were to lose the best opportunity to right the long-established wrong that the Bill addresses by seeking to address another, equally important matter. I hope that my noble friend the Minister will be able to give the noble Lord the reassurance that he seeks and that therefore there will be no need to amend this important and long overdue Bill.

[Lord Rosser]

I shall just add, in light of what the noble Baroness, Lady Morris of Bolton, has just said, that my noble friend Lord Faulkner of Worcester is seeking assurances on this point, as I understand it, and I sincerely hope that those assurances can be given.

[Baroness Williams of Trafford]

My Lords, I hope that I can now give those assurances. I am very grateful to the noble Lord, because he distinguished very much between the argument for another day, which is about same-sex marriages in churches, and the very important point of children of same-sex parents on the register: it is not called the register, of course, but we will probably continue to call it the register.

As the noble Lord pointed out, the Marriage (Same Sex Couples) Act 2013 made provision for couples of the same sex to enter into a marriage. However, under Sections 3 and 4 of the Act, the provisions to solemnise marriages of same-sex couples do not apply to marriages taking place in the Church of England. As with all other religious ceremonies, there is no compulsion on an individual to solemnise a marriage where the reason is that it concerns the marriage of a same-sex couple.

The provisions in the Bill do not seek to make any changes to marriage preliminaries, or to how or where marriages can be solemnised; it simply seeks to change how marriages are registered, moving from a paper-based system of registration to an electronic register. The electronic system of registering marriages will apply to all marriages, irrespective of whether the couple are of the opposite sex or of the same sex.

I have just received a note containing the answer to the point made by my noble friend about the move to a schedule system not creating differences between the registration process for opposite-sex and same-sex couples. To clarify, by the names of the parents it will say “Mother/Father/Parent” for both parents. That will apply to children of opposite-sex couples, same-sex couples and whatever we have to come.

Police and Crime Commissioners

Lord Rosser Excerpts

Thursday 28th June 2018 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I, too, thank the noble Lord, Lord Armstrong of Ilminster, for securing this debate on the role and responsibilities of police and crime commissioners. It is a question that he has prompted in the context of the handling of Operation Conifer by Wiltshire Police and the approach of the Wiltshire and Swindon PCC. The Police Reform and Social Responsibility Act 2011 gave PCCs responsibility for the totality of policing within their force area, and further required them to hold the force chief constable to account for the operational delivery of policing.

The Policing Protocol Order 2011 states:

“The public accountability for the delivery and performance of the police service is placed into the hands of the PCC on behalf of their electorate. The PCC draws on their mandate to set and shape the strategic objectives of their force area in consultation with the Chief Constable. They are accountable to the electorate; the Chief Constable is accountable to their PCC. The Panel within each force area is empowered to maintain a regular check and balance on the performance of the PCC in that context”.


The protocol also states:

“The PCC is the recipient of all funding, including the government grant and precept and other sources of income, related to policing and crime reduction and all funding for a force must come via the PCC. How this money is allocated is a matter for the PCC in consultation with the Chief Constable, or in accordance with any grant terms. The Chief Constable will provide professional advice and recommendations”.


In respect of the chief constable, the protocol says:

“At all times the Chief Constable, their constables and staff, remain operationally independent in the service of the communities that they serve”.


During Oral Questions on 7 March last year, the Government said that,

“chief officers are held to account in respect of operational matters by their police and crime commissioner”.—[Official Report, 7/3/17; col. 1249.]

How exactly is the PCC allowed to do that if the Government’s view is that operational matters are purely the responsibility of the chief constable? In holding the chief constable to account, can the police and crime commissioner, within their powers, give directions to the chief constable on how they should conduct “operational matters” or changes they should introduce, or is the holding to account at the end of the day in reality limited to the nuclear option of the power to dismiss? Could the Government in response indicate how the power to hold to account in respect of operational matters can be exercised by a police and crime commissioner within their powers?

On 11 October 2017 I asked the Government:

“Which elected person, if any, had the statutory power—if they chose to use it—to challenge how the Operation Conifer investigation was being conducted or even to stop it?”.


In response the Government said:

“The elected power who would have the authority to undertake any of the issues that the noble Lord is talking about would be the PCC”.—[Official Report, 11/10/17; col. 230.]


That again comes back to the issue of the role and responsibilities of a PCC to hold the chief constable to account in respect of operational matters, since presumably the Operation Conifer investigation was an operational matter. When the Government said that the PCC could challenge how the investigation was being conducted, did the Government also mean that the police and crime commissioner had a power of direction in this regard? In other words, can the Government say in what way the police and crime commissioner could have challenged how the investigation was being conducted and what actions he could then have taken within his laid-down powers and responsibilities?

If a PCC does have the power to set up a review into how an investigation is being conducted or has been conducted by their police force, what powers does the PCC have to implement any recommendations arising from that review, which may well be recommendations on operational matters which the Government say are the responsibility of the chief constable and not the PCC? Surely the PCC would not be in the position of being able to set up such an inquiry or review, but then not be able to implement any recommendations arising on operational issues, if their chief constable declined to implement those recommendations? Again, I would like a response from the Government on this specific point.

Similarly, the PCC is responsible for drawing up a budget, and it is presumably a matter for the PCC as to how specific they are in allocating money to different activities and functions, including operational matters. Can a PCC, in drawing up a budget, allocate specific sums of money to addressing specific types of crime such as cybercrime, fraud, burglary, domestic violence or moped cycle crime, for example? If the PCC can do that, is that not also getting involved in operational matters, since the PCC, through the budget allocations, would be determining or at least heavily influencing what level of available police resources should be allocated to addressing different sorts of crime—an allocation with which the chief constable might not agree, or might feel was an operational issue that was their responsibility and not that of the PCC? I would like a response from the Government on the specific point of the extent to which the PCC, through drawing up the budget and the detail they go into in doing so, can in reality make decisions affecting operational matters which, according to the Government, are apparently the sole responsibility of the chief constable.

Then there is the issue of what PCC candidates promise or claim in their election addresses. One I have seen, for a sitting PCC seeking re-election, said that their record over the previous four years had included,

“seeing an overall reduction in crime and incidents year on year”,

and,

“ensuring that our local police are out in their community, rather than stuck behind a desk”.

Is a PCC accountable for “seeing an overall reduction in crime and incidents year on year” and “ensuring that our local police are out in their community”, or are those operational matters that are the responsibility of the chief constable? Once again I would like a response from the Government on that point.

If there is an overall increase in crime and incidents year on year, it will of course be interesting to see whether a PCC seeking re-election would accept responsibility for that in their election address, or whether the tone would change, with the PCC then maintaining that that was an operational matter for the chief constable and that he or she—the PCC—would be holding the chief constable to account for it.

There is of course the Policing Protocol Order 2011, which sets out to all police and crime commissioners, chief constables and police and crime panels how their functions will be exercised in relation to each other. Even with the 2011 protocol, are the Government satisfied that all police and crime commissioners understand clearly in practical terms their powers, role and responsibilities, including in relation to chief constables and police and crime panels, and do the Government consider that all police and crime commissioners have the same view about the practical application of their powers, role and responsibilities? On how many occasions have police and crime commissioners, either individually or collectively, sought the advice or understanding of the Home Office on the practical application of their statutory powers, and what have been the issues they have raised? Do the Government seek to ensure that there is a consistent view among PCCs of how their role and responsibilities should and can be interpreted and developed, and, if so, by what means do the Government seek to do that?

I sense that some PCCs, such as my noble friend Lord Bach, have a very clear view about the extent and breadth of their role and responsibilities. I am aware, too, of the numerous and varied initiatives that Dame Vera Baird has initiated, or been a key player in, in her capacity as PCC for Northumbria, and I get the strong impression—as my noble friend Lord Bassam of Brighton said—that she is held in high regard for the very proactive way in which she has interpreted and developed her role and responsibilities as PCC. Other noble Lords have made favourable references to the work of other PCCs.

I am not so sure, though, that clarity about their role and responsibilities applies across the board with PCCs. I do not believe that the Government had a very clear idea either on that matter when they passed the 2011 Act establishing police and crime commissioners. There were generalities about the role and responsibilities of PCCs, and not least in relation to chief constables and police and crime panels. My feeling is that the relevant individuals concerned in each police force have been left largely on their own to interpret what the 2011 Act and the protocol actually mean when it comes to specifics, and what they should and should not be doing, and can and cannot be doing. As a result, power of personality has often been a crucial factor in determining what actually happens, and that is why I believe there are still significant differences in the way that PCCs interpret their working relationships and role and responsibilities. That is why some PCCs have a high and positive profile within their areas, and others seem to be rather less visible to their constituents, and rather less active in developing and promoting new and imaginative initiatives to help reduce and prevent crime, and support victims.

My noble friend Lord Bassam of Brighton and others raised the issue of a review of how the role and responsibilities of PCCs have worked out in practice and how effective and accountable working relationships involving PCCs have proved in reality. I await with interest the Government’s response to this point and to the many other points that have been raised, including by me and the noble Lord, Lord Armstrong, in this debate.

Immigration (Guidance on Detention of Vulnerable Persons) Regulations and the Detention Centre (Amendment) Rules 2018

Lord Rosser Excerpts

Wednesday 27th June 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for bringing this Motion forward. I start from the position that immigration detention does not do anybody any good. I find it hard to think that one would be liable to be harmed, whether one is vulnerable—a term I do not find easy—or not. Which of us would be robust enough?

In a previous debate, I quoted from Never Truly Free, a recent British Red Cross report on the humanitarian impact of the UK’s immigration detention system, including the mental health of detainees after release. It concluded:

“Immigration detention has a known negative impact on mental health. Most detainees will have experienced some form of trauma in their life before detention, the effects of which can be exacerbated in detention”.


It also stated:

“The damage done by detention does not simply go away once someone is released and the negative impact on mental health persists long after detention”.


I say this because I do not want to belittle, by implication, the experience of detainees who are not vulnerable—or at any rate, not “particularly vulnerable”, as per the phrase in Section 59—and to make the point that the definition of torture might be a little less difficult if we detained fewer people and for no longer than a maximum fixed period.

I have some sympathy with those who struggle with that definition, but this will always be a problem when you start from the wrong place and grapple with something that is not necessary. As has been asked, why is it necessary to distinguish torture from ill treatment for this purpose? The noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Lister, referred to Shaw—like Leveson, he must have got used to becoming a noun. It prompts me to ask whether he had any input in the content of these statutory instruments. Indeed, has he approved the definition?

As we have heard, we have been briefed by organisations with considerable experience of both working with victims of extreme cruelty and advancing the understanding of torture. They are very critical of the Government’s approach, both the detail and the principle. As we have also heard, the court did not require the Home Secretary to define the term.

What are we to make of the paragraph on “Consultation outcome” in the Explanatory Memorandum to the two instruments? It states that,

“the Home Office has discussed the proposal”—

that is, the definition—

“with interested non-governmental organisations (NGOs). The Home Office has considered comments made by NGOs and has committed to engaging with them as the detailed guidance and training for decision makers are developed”.

I was not aware that NGOs had the limited opportunity described to give their views to the Home Office, but those views are not reported in the memorandum. I take it that they were not accepted. As a matter of good practice, it seems to me that the memorandum should be much clearer on this.

My confidence in the process was not helped by the Explanatory Note to both instruments. It states:

“A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen”.


I do not know about a financial impact, but by definition there will be an impact on those undertaking Rule 35 assessments and on the numbers held in detention. There must be an impact. Medical practitioners have a difficult enough task in making assessments with time and other constraints and in a place and in circumstances which are far from the safe and supportive environment needed to work with such patients—I use the term deliberately—and which are likely to contribute to ongoing trauma, to exacerbate symptoms and to impede the healing process.

I am also interested in the concepts of control and powerlessness in the definition. At any rate, they certainly allow for the argument that a victim with a particular history of being controlled and powerless will experience detention as torture. With regard to that history, what is meant by powerlessness? The noble Lord has raised this point. Will the Minister confirm that the definition is not confined to a physical situation and that control and powerlessness may be different for different people?

Under the draft guidance, an individual is regarded as at risk—we discussed this at Questions the other day—if they are,

“particularly vulnerable to harm if placed or remaining in detention”.

Why is this in addition to the history? Why has it been added? In fact, as a matter of the construction of paragraph 7, is that something that the individual needs to declare, or is it an objective matter for the third party? I have read the paragraph several times and I am not sure.

I understand that the guidance introduces a wider range of immigration factors than before, placing far greater emphasis on non-compliance. My final question is: does this not of itself affect the balance, which we are told is sought, between,

“protecting the vulnerable and ensuring the maintenance of legitimate immigration control”?

That comes from paragraph 1, on the purpose of the guidance.

In summary, these Benches support the Motion. We share the noble Lord’s regret and our regret goes much wider, too.

[Lord Rosser (Lab)]

I add my thanks to the noble Lord, Lord Ramsbotham, for providing us with this opportunity to debate this issue of concern over the Government’s actions and decisions on the welfare of vulnerable people in immigration detention. We agree with the concerns that the noble Lord expressed about how the Government are dealing with this matter and his proposals for addressing the situation.

As I understand it, it is meant to be Home Office policy that vulnerable people, which includes the victims of torture, should be detained only in exceptional circumstances, for example, if they are likely to offend or cause a public safety risk. However, that does not always appear to be the case, because in the year ending last March there were apparently well over 26,000 exceptional circumstance cases in immigration detention. Once again, as I understand it, these are not even people whose removal is imminent, since about half are released back into the community.

In his first review, Stephen Shaw said that detention in and of itself undermines welfare and contributes to vulnerability. Half a dozen court cases in the last few years have drawn attention to the unacceptable treatment of detainees. I believe that the death rate among detainees in immigration detention has risen. Last year, 11 people died in custody.

The situation reached such a state that in 2015 the now Prime Minister, then Home Secretary, asked Stephen Shaw, the former Prisons and Probation Ombudsman, to conduct a review of the welfare of vulnerable persons in detention. His report concluded that the safeguards for vulnerable people were inadequate, that immigration detention was used too often and for too long, and that the impact on mental health increases the longer detention continues. However, in implementing their adults at risk policy, the Government did not fully address the concerns raised by Stephen Shaw. Indeed, the Government’s detention centre rules and guidance on the detention of vulnerable persons seemed to increase the risk of harm. In its first 10 weeks of implementation, the Government’s adults at risk policy was applied incorrectly in almost 60% of 340 cases. Torture survivors continue to be detained and torture is one of the 10 indicators of risk in the adults at risk policy.

The guidance on the detention of vulnerable persons increases the burden of providing evidence on the vulnerable individual, since specific evidence will be needed that detention is likely to cause harm and the risk of harm in detention has to outweigh a range of immigration factors, such as the risk of absconding. In effect, it requires a person to prove that they will not abscond, which one would have thought was extremely difficult to do. The guidance already includes a broad range of immigration factors that can justify detention, even of torture survivors.

The result has been that the release rate, following a report designed to screen torture victims out of detention, has fallen considerably. In the third quarter of 2016, before the policy change, nearly 40% of those in the report in question were released. In the first quarter of 2018 that number had fallen to just 12.5%. Those figures were borne out in a 2017 High Court ruling in a case brought against the Home Office that the adults at risk policy unlawfully imprisons through immigration detention hundreds of victims of torture. The Home Office had previously decided to narrow the definition of torture so that it refers only to violence carried out by state actors. Apparently, it now excludes vulnerable survivors of non-state abuse, such as by ISIS, Hezbollah or the Taliban.

The Government have tabled the two statutory instruments we are discussing in response to the High Court’s ruling. However, the organisation that brought the successful case against the Home Office has said that the new torture definition is inappropriate and too complex for caseworkers and doctors to apply to specific cases, and that even when applied correctly the definition will exclude a group of victims of severe ill treatment who do not fall within the other indicators of risk.

As I understand it, the Government were actually asked by NGOs to await the publication of Stephen Shaw’s re-review into the welfare of vulnerable people in detention to allow consideration of his findings before laying changes before Parliament. The Government have now had the Shaw re-review for some two months, but others have not been given a chance to consider his latest recommendations since, subject to the Minister saying otherwise, it has not been made available by the Government.

The Government’s argument for not allowing consideration to be given first to the findings of Stephen Shaw’s re-review appears to be that they could be in difficulty if they have not produced a revised adults at risk policy within 12 months of the October 2017 High Court judgment. But did the judgment specifically say that, and did it say that the Government should not await the outcome of any re-review before revising their adults at risk policy? The Government have had the Shaw re-review for two months. There is nearly a further four weeks to go before the Summer Recess, without taking account of the two-week short sitting in September. If this Government want to speed up processes, they have previously shown that they can do so. They could have, and still can, in this case and ensure that there is an opportunity to consider these two statutory instruments while they are still drafts in the light of the findings of Stephen Shaw’s re-review. Doing so might avoid the Government having another uncomfortable day in court.

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

I thank the noble Lord, Lord Ramsbotham, for securing this debate. I want to say at the outset that I appreciate his insight into this issue of immigration detention and the concern that he has consistently shown for the welfare of detainees. I also thank other noble Lords from all sides of the House for their contributions.

We put significant effort into encouraging individuals to comply with the Immigration Rules and to support those with no right to remain to leave the UK voluntarily. Unfortunately, a minority of individuals refuse to comply, and detention can be a necessary and proportionate tool for enforcing their return.

As I have said, detention is used sparingly, and we operate a strong presumption in favour of not detaining. At any one time, of those people with no lawful basis of stay in the UK and who are liable to removal, 95% are managed in the community and not in detention. The number of individuals whom we detain has decreased. In the year ending March 2018, there was an 8% reduction in the number of people entering detention compared with the previous year.

For every individual detained, there must be a realistic prospect of removal within a reasonable timescale. As part of the decision to detain, there should be an assessment as to the likely duration of detention. In addition, alternatives to detention will have been considered, or will have failed, in each case.

The majority of people are held for short periods. Ninety-one per cent of those leaving detention in the year ending March 2018 were detained for less than four months and 64% for 28 days or less.

As the noble Lord, Lord Rosser, mentioned, the welfare of vulnerable people in immigration detention is of the utmost importance to the Home Office. Where it is necessary to detain people to remove them, a number of safeguards are in place. One of these is the adults at risk in immigration detention policy, referred to by the noble Lord. Others include the presence of healthcare staff in all immigration removal centres and residential short-term holding facilities; a comprehensive suite of published guidance and operating procedures to govern conditions in centres and support the well-being of detainees; regular reviews of detention by senior officers to ensure that detention remains appropriate; and independent judicial oversight of immigration detention.

The adults at risk policy, implemented in September 2016, provides a vital safeguard. It was a key part of our response to Stephen Shaw’s review of the welfare of vulnerable people in immigration detention commissioned by the Prime Minister when she was Home Secretary. Under this policy, vulnerable people are detained, or their detention continued, only when the immigration considerations in their case outweigh the evidence of vulnerability—the balance that the noble Baroness, Lady Hamwee, talked about. Detention decisions are made on the basis of all available evidence. Cases are reviewed at regular intervals and whenever new evidence comes to light in respect of removability and vulnerability.

That brings me to the new definition of torture in the context of immigration detention. I do not think that anyone would dispute that victims of torture—and, indeed, all those identified as vulnerable—should be considered to be particularly at risk of harm in immigration detention. But it is not, and has never been, government policy that such individuals should never be detained. There is no absolute exclusion from detention for any category of person. However, for individuals considered to be at risk, the policy strengthens the presumption against detention. It carefully balances an individual’s vulnerability considerations against the immigration considerations so that detention is considered in individual cases only when immigration considerations outweigh the risk identified.

The way in which torture is defined in the context of immigration detention has a long history. We currently use the EO definition established in case law in 2013. This is a broad definition which led to some cases being inappropriately considered as torture, thereby diverting attention from the most vulnerable. As a result, the Home Office brought into force the United Nations Convention against Torture definition of torture, with the introduction of the adults at risk in immigration detention policy in 2016. Following a judicial review of the policy, and as an interim relief measure, the High Court ordered the Home Office to revert to the EO definition, and we did so in December 2016. The court subsequently declared the UNCAT definition to be unlawful when used for the purposes of immigration detention. However, it declared that the adults at risk policy was inherently sound and lawful.

In addition, the court further stated that the EO definition was deficient for the purposes of immigration detention. The judge set out his carefully considered view of what a rational definition should look like in this context, taking into account the impact of acts of harm on those in detention. He came to this view having heard a wealth of expert evidence, including that provided by experts associated with the litigants, Medical Justice. We have used the judge’s clearly expressed view as the basis for the definition set out in the statutory instruments laid before Parliament on 27 March 2018. In answer to the question “Why can’t we withdraw the SIs?”, we cannot withdraw them and revert to the old definition of torture as laid out in EO as that was judged to be deficient for the purposes of immigration detention. It was too broad and led to some cases being inappropriately considered, diverting attention from the most vulnerable, as I have said.

The court also said that the broad safeguarding provisions were not effective and the guidance needed to be amended. The statutory instrument bringing into force the revised statutory guidance meets this requirement.

Noble Lords have said that the Home Office should have waited for Stephen Shaw’s follow-up report to be published before making any amendments to the definition of torture. Let me be clear: the changes we are making are to implement the court’s judgment in full, with the reasonable timescales it set out. Until Mr Shaw’s report has been formally published, I cannot discuss its contents. However, I can say that officials kept Mr Shaw’s team informed of the work they were doing to implement this new definition while they engage with the NGOs on this issue.

[Lord Rosser]

In the light of the Minister’s comment that officials had informed Stephen Shaw of what they were doing, is she saying, or seeking to imply, that in fact his re-review has given the Government’s proposals in these statutory instruments a clean bill of health? If that is what it has done, why not publish it now?

[Baroness Williams of Trafford]

I will get on to when it will be published. I am simply saying that officials kept the team informed of the work they were doing to implement the new definition while they were engaging with NGOs. We will carefully consider all of Stephen Shaw’s recommendations, as we did last time, and take them into account when we review detention centre rules, including the operation of the rule 35 reporting mechanism later this year. We will publish his report with a full government response before the House rises in July, in answer to noble Lords’ questions.

As I said, the current imperative is to ensure that, in the light of the court’s very clearly expressed view, we implement a lawful and effective definition of torture for the purpose of the adults at risk policy. There is no reason to delay this. It is separate to, and not dependent on, Mr Shaw’s report.

It has been suggested that the new definition of torture in the context of immigration detention is too complex to be applied by caseworkers and doctors. I do not accept this. It fully reflects the guidance handed down by the High Court. The court, in turn, had the benefit of a large amount of expert and clinical evidence, much of which was submitted by the litigants, Medical Justice. So there is no reason to believe that caseworkers and doctors will find the definition of torture set out in the statutory instruments too complex.

The noble Baroness, Lady Lister, asked whether the consultation with NGOs was sufficient. There was no legal obligation to run a consultation, but officials willingly engaged with them on the definition of torture and on caseworker guidance and training.

The noble Baroness, Lady Hamwee, asked—