Security Co-operation

Lord Rosser Excerpts

Wednesday 2nd December 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I can confirm that for my noble friend. I also reiterate his point that the safety and security of our citizens is the Government’s top priority. We are negotiating an agreement on law enforcement and criminal justice with the EU to equip our operational partners on both sides with the capabilities to protect citizens and bring criminals to justice.

[Lord Rosser (Lab) [V]]

The National Police Chiefs’ Council has warned that, post Brexit, with the loss of access to EU databases,

“even with contingencies in place, the fallback systems will be slower, provide less visibility of information/intelligence and make joined up working with European partners more cumbersome.”

The National Crime Agency has said that, in both a negotiated outcome and a non-negotiated scenario,

“the alternative measures are less automated and more unwieldy to use.”

Do the Government agree with the National Police Chiefs’ Council and the National Crime Agency? If so, what do they intend to do about it?

[Baroness Williams of Trafford (Con)]

I reiterate that there will be a mutual loss of capabilities for the UK and the EU in a non-negotiated outcome. I do not think I have made any secret of that in this House. We are therefore working very hard—I know it is late in the day—to secure a negotiated outcome.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Rosser Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[Lord Paddick (LD)]

My Lords, this has been a lengthy and complex debate, and I blame the noble Lord, Lord Anderson of Ipswich, for that; we tried to split this group to make it more manageable, but his will prevailed.

As the noble and learned Lord, Lord Thomas, said, amendments in this group are on prior authorisation by a judge; by an investigatory powers commissioner; by an investigatory powers commissioner unless it is urgent; by an investigatory powers commissioner if a criminal conduct authority is to be used to identify a journalistic source; and by a Secretary of State. Another amendment requires that an investigatory powers commissioner be notified

“as soon as … practicable, and in any event within seven days”

and that the police authority be involved in holding the chief constable to account as a result of the investigatory powers commissioner’s annual report on the use of CCAs.

It is understandable that noble Lords want prior notification—and why the police should not, as the noble Baroness, Lady Kennedy of The Shaws, said, mark their own homework. On the advice of one noble Lord, I read the code of practice that goes with this Bill. I have held both ranks that could grant a criminal conduct authority under this Bill. In urgent cases, that is an inspector, who can not only grant a criminal conduct authority but also grant immunity from prosecution. I was an inspector at the age of 24. I was also, subsequently, a controller of covert human intelligence sources. I spent 18 years as a uniformed officer. On the Friday I left the office as a uniformed chief inspector and on the Monday morning I was a detective chief inspector in the role of a controller. The Government may say that all the people involved in the matters considered by this Bill will be experienced and highly trained, but that is not always the case in my experience.

We should listen very carefully to the noble Baroness, Lady Manningham-Buller, who articulated why prior authorisation is not practical, a point also made by the Minister for Security in another place and by the noble Lord, Lord Anderson of Ipswich. From my experience I agree, although the description of MI5 handlers and agents as beyond reproach is not, in my experience, universally applicable to police handlers and informants.

Any prior authorisation would instruct CHIS to operate within strict parameters, which may no longer be necessary or proportionate once they are deployed, or may not be adequate once they are deployed, because they are being deployed into rapidly changing scenarios in an uncontrolled environment, often involving chaotic individuals. The most common use of CHIS in policing, for example, is to counter drug dealing. As the noble Baroness, Lady Manningham-Buller, has said, you cannot turn an agent on and off like you can a listening device.

Even the most experienced undercover officer may have to necessarily and proportionately go beyond the strict parameters of a CCA because the situation has dramatically changed in ways unforeseen by the handler. If he were to strictly adhere precisely to a CCA, he could put himself in danger of losing his life. As we will hear in later groups, children are increasingly being used as covert human intelligence sources, some of whom have chaotic lifestyles. Sometimes they are drug users or drug dealers. To expect such people to operate within the strict and precise boundaries of a CCA in such turbulent situations is not only unfair and unreasonable but completely unrealistic. To determine the strict parameters of a CCA to cover every possible scenario, in the middle of a rapidly changing situation, and when the legal immunity of both handler and CHIS depends on it, is unfair and unreasonable to both handler and CHIS.

Those proposing prior authorisation by judges, Investigatory Powers Commissioners and government Ministers may say that any conduct outside the strict parameters of a CCA will be looked at by the prosecuting authorities and a decision made whether to prosecute using the public interest test. In that case, why can the prosecuting authorities not look at all the actions of the CHIS and the handler and decide whether to prosecute?

Amendment 46, for which there seems to be a good deal of support around the House, suggests that the Investigatory Powers Commissioner should be given notice where a person grants a criminal conduct authorisation as soon as practicable and, in any event, within seven days—but, as my noble friend Lady Hamwee and the noble and learned Lord, Lord Thomas, said, so what? What power does the Investigatory Powers Commissioner have to intervene? What happens if the handler corruptly tasks an informant to commit crime? As the authority has already been granted, both CHIS and handler have legal immunity, even if the handler informs the Investigatory Powers Commissioner six days later. A wronged party may be able to claim compensation from an Investigatory Powers Tribunal but criminal offences may have been committed for which the perpetrators should be prosecuted. That is why we have added to Amendment 46, to the effect that legal immunity is dependent on the CCA being approved by the Investigatory Powers Commissioner. If the actions of the handler or the CHIS are not within the limits set out in the Bill, neither are immune from criminal prosecution or from being sued.

I understand completely why noble Lords do not want a criminal conduct authority to be granted without prior judicial or ministerial authorisation because of the potential for abuse. However, as others have said, it is not practical. We believe there is a way to prevent abuse without prior authorisation of a CCA, including protecting journalistic sources, which we will come to in a future group. We have listened very carefully to this debate and have come up with a new amendment; because we were part way through this debate we cannot debate that amendment in this group, but we will come to it in a couple of groups’ time. What must not happen in any circumstances is the granting of legal immunity without judicial oversight. That is what our Amendment 47 attempts to do.

[Lord Rosser (Lab) [V]]

Amendments 14 and 75 in my name and the name of my noble friend Lord Kennedy of Southwark provide that authorisations may not be granted under this section until a warrant has been issued by a judge. An application to a judge must be made in writing and provide details, including the reasons why it is required, who it covers, the length of time it will be active for, and previous applications covering the same individual. Our amendments also provide that a person who grants a criminal conduct authorisation must inform the Investigatory Powers Commissioner within seven days of granting the authorisation. We seek to strengthen both prior and post-authorisation oversight.

Amendment 77 in the name of my noble friends Lady Clark of Kilwinning and Lady Whitaker and the noble Baroness, Lady Jones of Moulsecoomb, calls for prior judicial approval before an authorisation can be granted

“for the purposes of identifying or confirming a source of journalistic information”,

and is in line with our amendment providing that authorisations may not be granted until a warrant has been issued by a judge. Amendment 46 in the names of the noble Lords, Lord Anderson of Ipswich, Lord Butler of Brockwell, Lord Carlile of Berriew, and the noble Baroness, Lady Manningham-Buller, is very similar to our Amendment 75 requiring a person who grants a criminal conduct authorisation to inform the Investigatory Powers Commissioner within seven days of granting the authorisation. However, all the amendments we have been discussing in this group reflect a strong feeling that the oversight arrangements set out in the Bill for the statutory power by public authorities to grant criminal conduct authorisations are inadequate and do not provide reassurance that the likelihood of this power being misused or exceeded is reduced to a minimum.

What exactly has been happening under the present arrangements is far from clear, although we are assured that they have enabled threatened terrorist atrocities and other serious crimes to be thwarted and our safety to be secured. We have no reason at all to doubt that. However, we do not know the extent to which powers have or have not been misused or exceeded since there is no means of that information consistently coming to light. Without proper oversight to act as a firm check there is a risk that some may become somewhat overzealous in how they exercise and interpret the powers they are given under the Bill, including what might be regarded as acceptable covert human intelligence activity, and against what and whom.

We believe there should be prior judicial authorisation, with authorisations not being granted until a warrant has been issued by a judge. Having to obtain a warrant before action can be taken is nothing new. Bearing in mind the potential gravity of the decision to authorise criminal conduct, the necessity to obtain a warrant beforehand seems even greater than it is in relation to other existing actions or activities requiring a warrant at present. It is a prior safeguard and check to minimise the likelihood, in what is self-authorisation by an agency or other body, of a potentially ill-judged or just plain wrong authorisation of criminal conduct, with all the consequences that might have.

Objections have been raised that sometimes authorisations are needed in a hurry but equally, access to a judge, as happens in some other spheres, can be arranged in a hurry—a point made by my noble friend Lady Kennedy of The Shaws. Urgency can arise because of a rapidly developing situation that could not have reasonably been foreseen, but it can also arise because a public authority has left things later than it should have done before seeking the criminal conduct authorisation. Perhaps the Government can, in their response, give some indication of roughly how many such authorisations are currently granted on average each year, how many are needed urgently and what the definition is of urgently. Can the Government also give a general indication of the extent to which authority to commit criminal conduct is given, in a typical year, to those who have been previously involved in or who are currently engaged in unauthorised—[Inaudible]—said that all authorisations

“are granted by an experienced and highly trained authorising officer, who will ensure that the authorisation has strict parameters and is clearly communicated to the”,—[Official Report, 11/11/20; col. 1045.]

covert human intelligence source. The phrase “experienced and highly trained” sounds fine, but what do the Government intend it to mean in practice in relation to the granting of criminal conduct authorisations under the Bill? What is the definition of an

“experienced and highly trained authorising officer”,

a description the Government were happy to use at Second Reading? How much experience is meant, and in what? How much training is meant, and in what? How many experienced and highly trained authorising officers will there be in each authority that will have the power to grant criminal conduct authorisations, and how frequently are they likely to determine whether to grant such authorisations?

--- Later in debate ---

In short, I hope that the Minister can give us examples justifying Clause 6(2) and Section 29B(4).

[Lord Rosser (Lab) [V]]

My Lords, the amendments in this group would variously remove the power for the Secretary of State to impose requirements restricting when a criminal conduct authorisation can be granted, require the Secretary of State to consult with such persons as are appropriate before imposing requirements, and require regulations in which the Secretary of State imposes additional requirements that must be satisfied before a criminal conduct authorisation is granted to be subject to the affirmative procedure. There is also an amendment in this group which would restrict the power of the Secretary of State to bring different provisions of the Bill into force at different times and in different areas, to ensure that all the safeguards provided in the Bill always apply.

We will await with interest more detail from the Government in their response as to the nature, extent, purpose, reasons for and frequency of the requirements that the Secretary of State might wish to impose by order before a criminal conduct authorisation can be granted, and why it would not have been possible to include this greater detail on the face of the Bill to reduce the possibility of this power being exercised at any time in the future in an inappropriate manner. We also want to hear the Government’s response to the concern about safeguards always being applicable, which has led to the amendment restricting the power to bring different provisions into force at different times.

[Lord Stewart of Dirleton (Con)]

My Lords, turning first to the order-making powers, addressed first by the noble Baroness, Lady Jones of Moulsecoomb, the ability of Parliament to scrutinise statutory instruments is a broader topic than this debate permits me to go into. As to the order-making powers in this Bill, these powers allow for additional requirements to be imposed before a criminal conduct authorisation may be granted, or for the authorisation of certain conduct to be prohibited. I assure the Committee that they can only be used to further strengthen the safeguards that are attached to the use of criminal conduct authorisations. They could not be used to remove any of the existing safeguards. I particularly seek to assure the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Rosser, on that point. The requirements that can be imposed under these powers concern matters of practicality and detail, and therefore it is appropriate that they be contained in secondary legislation.

The noble Baroness, Lady Hamwee, asked whether there was a precedent for such powers to be subject to the negative procedure. The equivalent powers in Section 29 of RIPA are both subject to the negative procedure. Taking similar powers in respect of criminal conduct authorisations to those already contained in Section 29 will allow the Secretary of State to make equivalent provision for Section 29 authorisations and criminal conduct authorisations, where appropriate, so that similar arrangements are in place for both. There is a high degree of interrelationship between the two provisions. While the Government do not have any particular safeguards or limits in mind, such requirements may arise in the future that will need to be legislated for.

An example of the past use of the Section 29 powers is the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010, which imposes specific additional requirements that must be met regarding the authorisation of a CHIS in connection with material subject to legal professional privilege. Were any changes proposed in the future, the relevant persons would of course be consulted prior to those changes being made. Amendments 21 and 58 are therefore not considered necessary.

Turning to Amendment 81, the Bill contains provision to commence the Act for different areas on different days, to allow time to make any necessary secondary legislation, issue guidance, undertake appropriate training and put the necessary systems and procedures in place, as appropriate. I assure the Committee that this power will not be used to delay commencing those sections relating to safeguards. The power could not lawfully be used to frustrate the will of Parliament in this way.

Scheduled Mass Deportation: Jamaica

Lord Rosser Excerpts

Tuesday 1st December 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

My Lords, the Government have said that this charter flight to Jamaica is specifically to remove relevant foreign national offenders. What assurances can the Government give that the mandatory duty to safeguard and promote the welfare of the children left behind—who are innocent in this—has been considered? How many such children will be left behind as a result of the imminent deportations to Jamaica? It has also been reported that some sort of understanding has been reached between the Home Office and Jamaica that people who came to the UK as children under the age of 12 will not be removed on this flight. Is that report correct, or partially correct, and if so does it apply only to the imminent flight or also to all future deportation flights to Jamaica?

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

The noble Lord will understand that I cannot discuss details of the individuals deported. I cannot, therefore, tell the noble Lord how many children will be left behind, but I can assure him that the welfare of children is of paramount concern to this Government. As for an understanding that might have been reached on under-12s born here, the provisions of the UK Borders Act 2007 have not changed.

Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020

Lord Rosser Excerpts

Thursday 26th November 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

I too thank the Minister for her explanation of the content and purpose of these regulations. They make amendments to UK law to give effect to the separation provisions relating to law enforcement and criminal justice co-operation contained in the withdrawal and separation agreements. They provide for the winding down of cross-border judicial and police cases in progress at the end of the transition period, including by requiring that data protection arrangements will continue to apply to any information required before the end of this year. In that particular sense, the provisions of these regulations are effectively time-limited. The regulations also amend the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 since they address new developments since the 2019 regulations were made, including in relation to the application of the Prüm directive to the UK.

The Government argue that these regulations are necessary to ensure a smooth transition to alternative arrangements regarding the handling of live cases and procedures at the end of the transition period. The reality is that the regulations provide little clarity or certainty to either the people of this country over the arrangements applicable from 1 January next year, or to our law enforcement and security services, who still do not know, five weeks from the end of the transition period, what legal and regulatory framework they will be winding down to, or what the practical day-to-day impact of any security and criminal justice deal, or no deal, will be on their ability to keep our people safe—a responsibility which is surely one of the most important priorities for any Government.

On cross-border data sharing and information sharing, lowering current capabilities would be very damaging and would adversely affect our country, hindering our ability to receive alerts, search for criminal records and extradite criminals. My noble friend Lord Reid of Cardowan referred to a letter published last week to the Select Committee on Home Affairs from the chair of the National Police Chiefs’ Council, which said that

“the loss of some or all of the tools will mean that, even with contingencies in place, the fallback systems will be slower, provide less visibility of information/intelligence and make joined up working with European partners more cumbersome.”

Could the Minister do something that the Security Minister in the Commons failed to do three times, and say whether the Government agree or disagree with that assessment by the chair of the National Police Chiefs’ Council?

Could the Government also say in their response what assessment they have made of the scenario that British law enforcement will find itself in on 1 January—in five weeks’ time—in light of concerns about the effectiveness of contingency arrangements and the clear view of police leaders on the need to retain EU tools to retain current levels of operational effectiveness? Could the Government tell us what capabilities we will have after the end of the transition period in relation to the Schengen Information System, SIS II, which we use extensively and appear set to lose?

Could the Government tell us what fast-track extradition arrangements there will be to replace existing capabilities from which we currently benefit under the European arrest warrant? What will replace the loss of the European Criminal Records Information System, affecting 4,000 requests every month? What will our position be after the end of the transition period in relation to Europol and future partnership working on law enforcement across Europe, which has been so effective? What will the position be in relation to future access to a passenger name records database, providing information on terrorists and criminals trying to enter our country, and the Prüm database for DNA, fingerprints and vehicle registration data?

The specific regulations we are debating are needed to fulfil our legal commitments on law enforcement and criminal justice separation provisions. But to have law enforcement, counterterrorism and security services winding down operations, knowing that some will not be wound up again and that some, if there is a deal, may or may not be wound up again to effective levels in the new year, is hardly a satisfactory situation to be in when we are talking about the safety and security of our citizens. In addition, the uncertainty is causing focus in our law enforcement agencies to concentrate less on day-to-day priorities in order to address this uncertainty over what arrangements will be applicable after the end of this year.

Along with other noble Lords who have spoken in this debate, I await the Government’s response to the points and questions raised, including by myself, and will be looking for meaningful assurances, not unsubstantiated statements of hope, that our law enforcement agencies and security—[Inaudible]—protect us all.

Windrush Compensation Scheme

Lord Rosser Excerpts

Monday 23rd November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I will not give some sort of defensive response to the noble Lord’s point because, if serious allegations of racism are being put out, we need to take that extremely seriously. If the noble Lord can provide me with further detail, I will take that back. He also asked whether the Home Office is indeed the right department to deal with this. I think it is the right department to deal with this in the sense that people’s identity needs to be established—which, of course, is the purview of the Home Office—before the claims are looked into. He is absolutely right to raise the issue of deceased people: first, it is tragic that someone is deceased before their claim is heard; secondly, it says to us that we need to be quicker at responding; but, thirdly, where someone is deceased, that claim can be dealt with in the appropriate manner with respect to their next of kin.

[Lord Rosser (Lab) [V]]

Wendy Williams, who carried out the Windrush review, told the Home Affairs Select Committee last month that she was surprised that only 168 people—certainly, at that time—had been compensated. She also expressed concern that there had been so little progress in reviewing the hostile environment policies and said that the Home Office could either embrace her recommendations or pay lip-service to them, and not institute fundamental cultural change. There is clearly a lack of leadership at the very highest level in the Home Office. A culture change was promised; it still has not been, and is not being, delivered. It is actions, not words, that count. Do the Government agree, or has even Wendy Williams got it all wrong?

[Baroness Williams of Trafford (Con)]

I totally agree with the noble Lord that a culture change is badly needed. A culture change does not come in a quick timescale but over time. On the figure of 168 people, we need to move faster in processing claims, and I know my right honourable friend the Home Secretary is looking at that. We have also enlisted more resource to try to help process those claims. On complexity, yes, it is complex; people have complex lives, and each case has to be taken on the evidence and information that is brought forward. We do not want people to go short on what they receive but to get the full amount they deserve—and all these people are very deserving of the compensation they get. Regarding the slow progress on the recommendations, I do not contradict what Wendy Williams said at all. One thing she said was that we should reflect, rather than jump to action, in implementing some of the recommendations. That is not to say that we should drag our heels, but we are going as fast as we can in what is a very sensitive area indeed.

Immigration (Leave to Enter and Remain) (Amendment) (EU Exit) Order 2020

Lord Rosser Excerpts

Wednesday 18th November 2020 Grand Committee

[Lord Rosser (Lab) [V]]

I, too, thank the Minister for her explanation of the content and purpose of this draft order. As we know, with the end of free movement, EEA citizens will require leave to enter or remain in the UK. The order provides for EU and EEA citizens without existing status to continue to use e-passport gates after the end of this year, and thus obtain leave to enter for six months when they are visiting the UK, as opposed to those coming to the UK to work or live, or for periods of more than six months, who will require permission to enter in advance of travel. The order also allows some other groups to use the gates in relation, for example, to pre-arranged healthcare.

We are introducing this arrangement for EU and EEA citizens but, as the noble Lord, Lord Paddick, was, in effect, saying, we have apparently not yet been able to negotiate a reciprocal arrangement for UK citizens travelling to Europe. Will the Government confirm that that remains the case and, if it does, can we have an update on that point when the Government respond?

Citizens of countries currently permitted to use e-passport gates are those from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA. To those will now be added EU and EEA countries. Do the Government keep that list under review? What are the criteria for being on the list, and for being taken off it? Are there plans to add any more countries to the list?

We are aware that the organisation the3million has written to the Immigration Minister, expressing concern that people entering the UK after the end of this year who are protected by grace period regulations will be granted leave via the e-gates. That will inadvertently impact on their ability to exercise rights, including the right to work, given that the automatic grant of leave to remain via e-gates for EU citizens is done on the basis of no recourse to public funds and no permission to work or rent. What steps have the Government taken, or will they take, to prevent that situation arising?

The Explanatory Memorandum in paragraph 7.3, to which the noble Lord, Lord Paddick, referred, states:

“The change will benefit the operation of the UK border as a whole by ensuring that the large number of EEA citizen visitors are able to cross the border in the most secure and efficient manner possible.”


However, as the noble Lord was asking, how reliable are the e-passport gates proving to be in detecting people who should not be allowed into this country? How will it be known when visitors entering via the e-passport gates do not have a right to work or rent in the UK?

Many issues and changes face our border security from the beginning of next year. Potentially serious is the likely loss of access to the Schengen Information System database. In an evidence session with the Home Affairs Select Committee last week, the Minister for Future Borders and Immigration had few, if any, answers to questions on the number of checks we make from the information system database, the proportion of people we check or which system will be there to replace it in January if our access to it ceases. Will the Government now say if the loss of access to that security database will impact on the information we have on people using e-passport gates to enter the UK, and what instantaneous checks will be available on a person arriving at our border.

Finally, I refer to paragraph 10.1 in the Explanatory Memorandum, which is on consultation. It states:

“This instrument was not subject to a consultation exercise because the Government judges that significant numbers of passengers will benefit, with only very limited impact on the experience of others.”


What is that limited impact and which passengers will experience it?

Child Trafficking

Lord Rosser Excerpts

Monday 16th November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

The single competent authority recently launched a recruitment campaign to bring in 371 new operational staff members. This will significantly reduce the decision-making period so that victims can be given certainty, which is absolutely right.

[Lord Rosser (Lab) [V]]

The Minister said that the figures quoted by the noble Lord, Lord Roberts, were misleading. Could she give some more specific information? How many identified child victims of trafficking were denied leave to remain by the Home Office between 2016 and 2019? Are they in the tens or the hundreds? How many identified children of human trafficking have been deported by the Home Office over the last four years?

[Baroness Williams of Trafford (Con)]

As I said to the noble Lord, Lord Roberts, the grant rate is 75%. No child is deported; a child will be returned to their country of origin only if there are safe and adequate reception arrangements in place. It is important to realise that there is a far more generous leave provision under an asylum claim than under discretionary leave to remain. Discretionary leave to remain is always the last consideration and leave of asylum is quite often the first—and a far more generous—one.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Rosser Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

I thank the noble and learned Lord, Lord Stewart of Dirleton, for his clear explanation of the content and purpose of the Bill. I congratulate him on this, in his fine maiden speech, which I know the House will have appreciated and enjoyed. The noble and learned Lord specialises in criminal law and has already had a distinguished legal career, being called to the Bar in 1993, appointed Queen’s Counsel in 2011 and, last month, being appointed Advocate-General for Scotland, succeeding the noble and learned Lord, Lord Keen of Elie.

The noble and learned Lord’s title is, as I said, Lord Stewart of Dirleton. Dirleton, near North Berwick, is, as he said, in one of the many beautiful and scenic parts of Scotland, by the coast and adjacent to one of the best-known golf courses in the world: Muirfield. I found his references to the village of Dirleton both interesting and moving.

The noble and learned Lord has joined the relatively small group who have made their maiden speech as a Minister at the Dispatch Box. We welcome him most warmly to this House and look forward to what I am sure will be many further thoughtful and compelling contributions from the Dispatch Box.

Security is a top priority for us. Our first responsibility is to keep this country and our citizens safe. We recognise the importance of our police and security services, including the National Crime Agency, and thank them for the vital work they undertake on our behalf. We also recognise the importance of covert human intelligence sources and the results they achieve. The director-general of MI5 has said:

“Since March 2017, MI5 and Counter-Terrorism Police have together thwarted 27 terror attacks. Without the contribution of human agents, be in no doubt, many of these attacks would not have been prevented”.


In other words, this kind of activity and operation is saving lives by stopping terrorist attacks on our citizens.

The data available also indicates that in 2018, for example, covert human intelligence operations disrupted threats to life, led to the seizure of thousands of kilograms of class A drugs, safeguarded more than 200 vulnerable people, and took firearms and rounds of ammunition off the streets. Covert human intelligence operations also play a significant role in stemming and preventing vile crimes such as child sexual exploitation, and organised black markets in, for example, vital medicine.

The activity the Bill deals with is not new: it has been taking place under existing practices for years. The Bill provides the statutory footing and increased oversight that have so far been missing.

It is well understood that in order to achieve their objective of protecting our citizens from acts of terrorism and vulnerable people from other awful crimes, covert human intelligence sources may need to commit criminal conduct. Being embedded in a proscribed organisation is, of course, an offence in itself. Such activity must be tightly controlled, but it is necessary to achieve the successful infiltration of the activities of criminal and terrorist organisations and networks to gather intelligence and to thwart or bring an end to their activities.

This vital and necessary activity cannot continue in the shadows without boundaries and safeguards. We acknowledge the importance and necessity of putting covert human intelligence sources activity on a proper statutory footing, and we strongly support that aim. This is not the first piece of legislation that brings activities that have been going on in the shadows into a statutory and regulated framework. The Investigatory Powers Act 2016 had a similar purpose in relation to surveillance and phone tapping, and the Bribery Act 2010 also provided for the authorisation of criminal acts in pursuit of those involved in crimes covered by the terms of that Act.

The crucial issues for this Bill are those of safeguards and oversight. We will be pushing to introduce proper oversight, increased scrutiny and further legal protections into the Bill. The question of safeguards and checks on activity of this kind is a serious issue for any democratic society. It is vital, too, that there is public confidence in how our security services and other agencies that use covert human intelligence sources are exercising the power of authorised criminal conduct.

We also have to be clear about what we expect of those engaged in covert human intelligence activity, the standards we should set and how we expect them to be implemented. We recognise that the Human Rights Act is mentioned on the face of the Bill, and that no authorisation should be made in contravention of the European Convention on Human Rights. The accompanying memorandum to the Bill states:

“Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities to act in a way which is incompatible with Convention rights. Nothing in this Bill detracts from that fundamental position. Authorising authorities are not permitted by this Bill to authorise conduct which would constitute or entail a breach of those rights.”


We will, however, be pressing the Government to go further and will be tabling an amendment, based on the Canada model, to put explicit limits on what can be authorised by placing protections against the most serious crimes, including murder, torture, and sexual violence, in the Bill.

The Government need to make it clear beyond any doubt that the activities of covert human intelligence sources under this Bill are not, and will not ever be, free from Human Rights Act considerations and that there will not be any deliberate attempts to prevent the Human Rights Act from coming into play.

We will be seeking to strengthen both prior and post-authorisation oversight. As it stands, the Bill provides for self-authorisation by an agency of criminal conduct. There is no need to obtain a warrant, for example, beforehand. I am conscious of what the noble and learned Lord said, but we have areas of law at present where judges are available 24 hours a day, and we will pursue the issue of prior judicial oversight in respect of this Bill.

As drafted, the Bill requires the Investigatory Powers Commissioner to include information about public authorities’ use of criminal conduct authorisations in the annual report, including statistics on the use of the power, the operation of safeguards and errors.

It is not sufficient for this somewhat vague requirement to be on an annual basis. Every authorisation should be notified to the commissioner within a few days, and the Intelligence and Security Committee should have more detail about the use of the powers under the Bill, and in what context, if there is to be meaningful reassurance to the public on the operation of safeguards and the use of the powers. We will be tabling amendments on these issues.

The Bill provides that authorisations for participation in criminal conduct may be granted only if it is necessary in the interests of national security; for the purpose of preventing or detecting crime or of preventing disorder; or in the interests of the economic well-being of the United Kingdom. We need to have clarity about what is within the scope of that framework of the necessity criteria, which cannot and should not encompass any lawful activity, including legitimate trade union activity. We will be pursuing this issue in Committee.

There is also a proportionality test in respect of authorisations for participation in criminal conduct. What must be considered before deciding if an authorisation would be proportionate is covered in the code of practice. There is a question, however, of whether those required considerations should not be strengthened by being written into the Bill—a point that might be relevant to other parts of the code of practice.

On the impact of the Bill on those affected by it, we will be pursuing the issue of the safety of juveniles and vulnerable people acting as covert human intelligence sources. We will also want to be satisfied that there are measures in place to prevent a disproportionate gendered impact, or impact on black, Asian and ethnic-minority communities, of the use of the powers under the Bill.

The issue of a route for redress and civil claims for wholly innocent victims is one we will also be raising in Committee. While those most likely to be affected by the criminal conduct of a covert human intelligence source are those with whom an agent is engaging in order to thwart criminality, there will inevitably be occasions when a wholly innocent person ends up with a material loss as a consequence of the actions of a covert human intelligence source. In addition, we will also want to be satisfied of the necessity for the non-security agencies covered by the Bill to have the power to authorise criminal conduct by covert human intelligence sources.

This is not a retrospective Bill but it has to be made clear that those seeking justice for what has happened in the past can still do so. There is an ongoing inquiry into undercover policing chaired by Sir John Mitting. Its recommendations should be implemented and victims should not be denied access to justice. Likewise, we are committed to a full independent public inquiry into the events at the Orgreave coking plant in June 1984. There are also outstanding issues in relation to the unlawful blacklisting scandal and the finding of the Metropolitan Police’s internal investigation that,

“on the balance of probabilities, the allegation that the police or special branches supplied information is ‘proven’.”

The kind of powers that the Bill covers and their use need to be on the statute book and not, as now, be powers in the shadows.

We are committed to keeping our people and our country safe. To deliver that, law enforcement bodies and our security services have to be able to carry out their vital and necessary work, which includes the activities of covert human intelligence sources and the authorisation of criminal conduct to which the Bill relates. We are mindful that public confidence in our law enforcement and security agencies is dependent on their proven ability to protect us from acts of terrorism and other vile crimes

We will be seeking to improve the Bill, particularly on the vital issue of strengthening safeguards and oversight so that the public can also have full confidence in the covert human intelligence process and how it is being implemented, including the manner and purpose for which the powers are being used on behalf of all of us.

UK Terrorism Threat Level

Lord Rosser Excerpts

Tuesday 10th November 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

We extend our condolences to the families of the victims of the recent horrific attacks in France and Austria and our sympathy and hopes for a recovery to those who were injured. It is these attacks that have prompted the decision by the Joint Terrorism Analysis Centre to raise the threat level for terrorism to “severe”—the second highest level—indicating an attack is highly likely. This is a decision we support since we have a shared responsibility to keep this country, our people and our communities safe. We extend our appreciation to our security services and those involved in counterterrorism policing for the vital work they do to keep us safe.

Could the Minister say what impact raising the threat level from substantial to severe will have as far as the daily lives of our citizens are concerned, both while we are in lockdown and when we come out of lockdown? Does the raising of the threat level require greater use of resources by our security services and counterterrorism policing? If so, were those additional resources already available or have they now been made available? Does the raising of the threat level apply across the United Kingdom? Is there uniformity of approach and practice across the United Kingdom in moving to the higher threat level? If not, what are the differences and where? Where do we now stand in relation to the independent review of the Prevent strategy? The raising of the threat level makes this more not less important.

The raising of the threat level from international terrorism reminds us of the importance of international co-operation. Do the Government accept that agreements must be concluded to ensure continued co-operation with the EU in combating terrorism after the end of the transition period?

In the Commons last week, the Minister said that he and the Home Secretary had

“asked officials to review with partners existing and proposed powers in the light of the horrific attacks in France and Austria to consider what more, if anything, might be needed.”—[Official Report, Commons, 5/11/20; col. 529.]

When is that review likely to be completed? I would like to know what kind of things come under the description of

“what more, if anything, might be needed.”—[Official Report, Commons, 5/11/20; col. 529.]

I conclude by reiterating our support for the decision to raise the threat level, and stress the need for our citizens to remain vigilant and steadfast. Combating terrorism and international terrorism is not, as some would like to suggest, a fight between different faiths, or people of different faiths. Our enemies are terrorists. It is a fight, as the Austrian chancellor said, “between civilisation and barbarity”.

[Lord Paddick (LD) [V]]

My Lords, I want to start by paying tribute to Lords Sacks—Rabbi Jonathan Sacks. He may no longer be able to speak to us directly, but what he said lives on. In 2013, he wrote an article for the Spectator entitled “Atheism has failed. Only religion can defeat the new barbarians”—by whom he meant those who threaten western freedom by religious fundamentalism, combining hatred of the other, the pursuit of power and contempt for human rights. He was in effect saying that moderate religion is the answer to religious fundamentalism, not anti-religious campaigning.

There is no justification for violence. The horrific terrorist attacks we have seen on mainland Europe and here in the UK in recent years I condemn unequivocally. My thoughts are with all those affected.

Can the Minister set out the UK Government’s position on free speech? Is free speech to be at any cost, no matter what the impacts on others? Because we condemn violence, no matter that it is unjustified, that does not mean we should not try to understand why people are drawn into it. Terrorism cannot be condoned under any circumstances, but if we are to counter it effectively we need to understand what motivates it. To that end, can the Minster say what research has been conducted into the impact of lockdown on the spread of extremism, particularly using the internet? What is the likely impact on vulnerable individuals—with no moderating interaction from others—and on their mental health? What are the Government doing to encourage, promote and ensure access to a moderate religious counternarrative to violent extremism allegedly based on religion?

The Home Secretary’s Statement talks about the increased threat level being used by the police to determine the level of their overall protective security activity. This includes additional police officers deployed to “certain places”. Can the Minister explain which places or what type of places these additional police officers are being deployed to?

The police are already stretched because of the Covid pandemic. It is at times like these that the importance of resilience in the police service is brought into sharp focus. Not only are the police having to enforce lockdown restrictions, police demonstrations against Covid regulations and deal with an enhanced UK threat level; they also have to do the day job of fighting crime and responding to calls for assistance. Many of these calls have nothing to do with crime, and include having to help increasing numbers in mental health crisis. This Government continued to reduce police numbers long after police leaders told them the cuts had gone far enough. Can the Minister explain where the additional police officers the Home Secretary refers to in her Statement will come from?

No doubt the Minister will be keen to tell the House about the additional police officers currently being recruited and the progress towards the government target of recruiting an additional 20,000 police officers, but can the Minister say what is the net increase, if any, in the number of police officers has been since the initiative was announced? What is the total number of police officers now compared with the 143,800 full-time equivalent officers in England and Wales police forces in 2010?

An essential part of combating terrorism, particularly the forms of terrorism we have seen in recent years, is community intelligence, intelligence built on trust and confidence created by police community support officers and local community police officers. What is the current number of police community support officers compared with 2010, and what proportion of police officers are currently employed as local community officers?

I have the utmost respect for our police and security services, and I am confident they do all that they possibly can to counter terrorism within the resource restraints they have been forced to operate under. I pay tribute to their skill and dedication. It is not, as the Home Secretary maintains, just about passing legislation. It is about properly resourcing the police and security services to give them the resilience they need to be able to respond to crises such as these.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Rosser Excerpts

Consideration of Commons amendments
Monday 9th November 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, as other noble Lords have said, safe routes are needed now. We know that people will not and cannot wait. And who can blame them?

I want to question the Minister about the review, particularly to seek an assurance about one aspect. Proposed new subsection (1) in the amendment refers to the review of ways in which protection claimants can enter the UK lawfully. This suggests that the review is to be limited to considering existing ways, when what is needed are proposals to enable safe mechanisms for family reunion without the current hurdles and restrictions. Siblings must be able to reunite and close family members—not only parents—able to sponsor entry without having to find fees or demonstrate that they have the means to look after the child.

I am concerned that there is no stated objective for the review; that seems to be missing. Also missing, as the right reverend Prelate has said, is a timetable for the completion of the review. The three months mentioned is the period within which the Government are to give further details. Can the Minister help us with the wider timetable and consultation, which surely needs to be wider than just unaccompanied children?

Reference has been made to the use of guidance. Can guidance achieve what is proposed? It cannot override the rules. I endorse and support the points made by the noble Lord, Lord Dubs, about the importance of seeing drafts both of rules and guidance. Parliamentarians can then have input and amendments can be gently suggested, if not formally proposed. We cannot do this with unamendable rules.

It is beyond me that what is necessary now is to show

“serious and compelling family or other considerations which make exclusion of the child undesirable”,

in the words of the rules. Putting it that way round, rather than the converse, has always seemed perverse to me. So, too, is the policy that an application under Article 8 of the European convention, on the right to family life, will not succeed unless there are “exceptional circumstances” with refusal resulting in “unjustifiably harsh consequences”.

On the timetable again, one of the government amendments refers to two months from the date of commencement, which is beyond the end of the year. Can the Minister assure the House that there will be no lacuna as a result and that work on plugging the gap, as it were, will start immediately and apply notwithstanding the commencement date? If there needs to be a change, can it be made in the Commons? I appreciate that that would require the Bill to go back to the Commons.

In practice, it is very difficult to show that a child is in an unsafe environment. Other current problems that need to be considered are getting a child to a visa application centre to make an application under the rules, and the fees which, under one of the paragraphs of the rules, are well over £3,000. I make these perhaps slightly random points because, alone, they show the importance of consultation on the whole situation.

The Minister in the Commons referred to

“dangerous, illegal and unnecessary crossings”.—[Official Report, Commons, 2/9/20; col. 182.]

I stress “unnecessary”. Would the crossings be made if they were? And was it appropriate to refer to lives lost and profit made by criminals as if they were of equal weight?

The noble Baroness referred to bilaterals. If she can give us an update, it would be welcome, but I appreciate that it may be difficult to refer to negotiations with the EU at the moment. Bilaterals would have to come after the end of the year, but we should not depend on them being in place for some time yet.

I realise that I am not taking my cue from the noble Lord, Lord Dubs, as I should, who always succeeds in using the most moderate language. He started by welcoming Amendment 4C, so I will end by confirming that these Benches are pleased that he has again pointed the way forward. We support him. If he decides to divide, we will certainly go with him. In any event, like him, we will continue to seek a much more satisfactory arrangement for asylum seekers, who want the most natural thing in the world: to be with their family.

[Lord Rosser (Lab) [V]]

We welcome the government amendment providing for a review of legal routes to the UK, including for family reunion of unaccompanied asylum-seeking children and for a report on the outcome of the review to be published and laid before Parliament—which I hope will be within a matter of months, rather than years.

The concern that the amendment of my noble friend Lord Dubs seeks to address is what will apply in the interim, between the end of the transition period—and thus the end of the Dublin regulations—and the introduction of any revised or amended arrangements on legal routes to the UK, following the outcome of the review. In other words, there needs to be provision for those, including unaccompanied asylum-seeking children, who would have come in successfully under the Dublin regulations—had they still been in existence after the end of this year—still to have an equally accessible and achievable safe and legal route in that interim period, which would continue to enable them to come to the UK.