Data Retention and Investigatory Powers Bill
Lord Rosser Excerpts(10 years, 4 months ago)
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Lord Rosser (Lab)
This Bill was the subject of just nine hours of discussion and debate in the House of Commons yesterday. We will have to wait and see whether the time spent on discussion and debate in this House exceeds or falls short of that over the two days—today and tomorrow—that have been set aside.
Serious concerns have been raised in this debate over the way in which this Bill is being rushed through in the light of the fact that the European Court of Justice judgment, which the Government say has been the driving force behind the need for this Bill, was handed down more than three months ago. The reality is that the date of the Summer Recess was known in April, when the judgment was given. Thus the need for minds to be focused on reaching conclusions without delay was also known. We could have avoided the situation that we now have of rushed legislation, rushed committee reports, committees being sidelined and a general feeling that the Government could have ensured that there was more time to consider the proposals in the Bill before it needs to be passed prior to the Recess.
The rush means that the reports of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee have only today been published. The Constitution Committee has commented on its report that between the date of the ECJ judgment in early April and 10 July the Government did not indicate that fast-track legislation might be necessary to address the court judgment, and that the contrast between the time taken by the Government to consider their response and the time given to Parliament to scrutinise the Bill is a matter of concern. The DPRRC has stated that there is no actual duty on the Secretary of State to make regulations under Clause 1(3), simply a power. The committee also said that since the powers conferred by Clause 1(1) and (2) on retention notices, which allow a significant intrusion into the privacy of members of the public, will come into force on the passing of the Bill, with the regulations under Clause 1(3) subject to the affirmative procedure, it is possible with the Recess imminent that there will be a period of three months without any regulations under Clause 1(3) in place to govern the exercise of powers under Clause 1(1) and (2). The Minister has said that that will not be the case, but like my noble friend Lady Smith of Basildon, I would like him to spell out again the timetable that the Government will be following to avoid the potential situation highlighted by the DPRRC from actually arising.
The Delegated Powers and Regulatory Reform Committee also pointed out that Clause 1(3) confers a power on the Secretary of State to make further provision by regulations about the retention of relevant communication data, and does not restrict the scope of the powers conferred by Clause 1(3). Perhaps the Minister will also respond to the view of the Constitution Committee in the light of the scope of the powers conferred by Clause 1(3) that, since it is the Government’s intention that the Bill does not enhance data retention powers, perhaps the Bill should expressly so provide.
The delay in bringing forward the Bill and then having to rush it through is all the more surprising since the judgment of the Court of Justice of the European Union to declare the new EU data retention directive invalid cannot have been entirely unexpected to the Government, since it supported the earlier opinion of the Advocate-General in December 2013. He found the directive incompatible with the EU’s Charter of Fundamental Rights in respect of the right to respect for private life and the right to the protection of personal data. The case was brought by the High Court in Ireland and the Constitutional Court in Austria. In essence, the Court of Justice of the European Union concluded that the data retention directive adopted by the EU legislature exceeded the limits imposed by compliance with the principle of proportionality as it did not limit the interference in respect of the fundamental rights in question to what is strictly necessary, since the directive covered in a generalised manner all individuals, all means of electronic indication and all traffic data without any differentiation, limitation or exception being made in the light of the objectives of fighting against serious crime.
The effect of the European Court of Justice decision was to strike down regulations to enable internet providers to retain communications data for law enforcement purposes of up to 12 months, thus creating uncertainty among communications service providers about the legal basis for the retention of communications data in the UK. The ECJ ruling did not take account of any controls or safeguards in the domestic laws of member states and in particular our communications data access regime, which is governed largely by the Regulation of Investigatory Powers Act 2000. RIPA seeks to ensure that access to communications data can take place only where it is necessary and proportionate for a specific investigation. Our data protection laws mean that in the absence of a legal duty to retain specific data, companies must delete data that are not required under their strict business uses.
Communications data, as has already been said, have been crucial to every counterterrorism operation by the security services in recent years and are used as evidence in nearly all serious and organised crime cases dealt with by the Crown Prosecution Service. The view of the House of Commons Home Affairs Committee yesterday was that the retention of communications data, subject to appropriate safeguards, was an important tool in the fight against terrorism, organised crime and child sexual exploitation, and that the Government were right to bring forward urgent legislation.
Following the ECJ ruling, the concern has been that without new legislation data could be destroyed within a short period by communications service providers fearing legal challenges, with the result that the police and security services would be unable to access them. With the EC directive in question having been transposed into UK law, national legislation needs to be amended only with regard to aspects that become contrary to EU law after a judgment by the European Court of Justice, and a finding of invalidity of the directive does not cancel the ability for member states to oblige retention of data. Indeed, the European Court of Justice accepted that an ability to retain data was necessary and recognised purposes for which data could be retained. Its objection to the directive was to its generalised nature and scope.
The EU data retention directive was implemented through secondary legislation through the Data Retention (EC Directive) Regulations 2009, and the Bill that we debate today is intended to remove any doubt there may be about the legal basis of our 2009 regulations and to give effect to the ECJ ruling. Clauses 1 and 2 confer on the Secretary of State the powers currently in the 2009 regulations to require service providers to retain communications data. The Bill of course also addresses the application of our laws on interception to remove any doubt that the requirement that companies co-operate with UK law enforcement and intelligence agencies also extends to companies that are based overseas but provide services to people in the United Kingdom.
The Constitution Committee said in its report published today that it is not clear why this last part of the Bill on interception needs to be fast tracked as there is evidence that the Government have known about the problem for some time, since the Joint Committee on the Draft Communications Data Bill noted in its report published at the end of 2012 that,
“many overseas CSPs refuse to acknowledge the extra-territorial application of RIPA”.
Will the Minister give the Government’s response to that point?
A number of the contributions in this debate have referred to the need to strike a balance in making a judgment on the Bill between the two main concerns of privacy of information and the need for agencies such as the police and security agencies to know about information and have access to it. The need in a democracy is to sustain liberty and security, and privacy and safety. The Government have made it clear that the purpose of the Bill, which we support, is to maintain existing capabilities and indeed to restrict them in line with the ECJ judgment. Clause 3, for example, will change the basis for obtaining a warrant for intercept on grounds of economic well-being. At the moment, under the Regulation of Investigatory Powers Act 2000, economic well-being is the sole criterion without condition. In future it will be subject to the interests of national security.
In the House of Commons, the Government agreed to our amendments designed to ensure that the Bill does not go beyond existing capabilities by requiring six-monthly reports on the operation of the Bill when it becomes an Act, to ensure that its implementation does not go beyond what the Government have stated is its purpose. There is also a sunset clause in the Bill, on which we insisted, which means that the legislation will cease to have effect from the end of 2016. That provides an opportunity for full public consideration and debate about what powers and capabilities will actually be required and how they will be regulated after then in the field of communications data access and interception. It will also provide an opportunity to ensure that whatever is deemed to be required will have rather greater public understanding and acceptance than is the case at present. People want to feel secure, but they also value their privacy and they do not like to find out the sheer extent to which that privacy can be and is being invaded from whistleblowers. They rightly feel that there should be more transparency from government on this issue both on the extent and necessity, and with that greater transparency might well come rather more trust and acceptance of the need for what should be done, provided it is proportionate.
The Government said last week that they would review the interception and communications data powers that we need and how they are regulated in the context of the threats we face. It was helpful that in the Commons the Government accepted the need to go down the road of our amendments and place this work, which will be conducted in the first phase by the Independent Reviewer of Terrorism Legislation, David Anderson QC, on a proper statutory footing. I hope the Minister, having mentioned Mr Anderson, will respond to the numerous points raised by my noble friend Lady Kennedy of The Shaws and by the noble Lord, Lord Carlile, about the future of Mr Anderson’s post, and the role and powers of the proposed new board.
The review which Mr Anderson will be conducting in the first phase will also take account of the impact of changing technology on the work of the different agencies involved. We have been calling for an independent expert review of the legal and operational framework, and in particular of the Regulation of Investigatory Powers Act 2000, because the speed of the communications data revolution since that Act has probably already led to the law and our oversight framework becoming out of date. The police and the security and other relevant agencies need to be able to keep up with new technology, but the safeguards need to keep up too—though, as has already been said in this debate, it is the knowledge that some private companies and organisations have about our daily lives and what we do that is equally breathtaking.
We will play our part in seeing that this Bill is passed, because the existing powers that it seeks to retain are too important for public safety and security to be put at risk of being lost. However, we also need that full debate about achieving the right balance, in a democracy, in an increasingly technological age, between privacy and liberty on the one hand and safety and security on the other, and ensuring that that balance commands public consent and confidence.
Serious Crime Bill [HL]
Lord Rosser Excerpts(10 years, 4 months ago)
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Lord Rosser (Lab)
My Lords, I shall be brief. The noble and learned Baroness, Lady Butler-Sloss, has rightly set out in some detail a strong case for Amendment 40BZB, with which we are associated. I will not attempt to repeat the points that have already been so effectively and powerfully made. The need to recognise in the Bill that harm can be caused by emotional ill treatment and emotional neglect as well as physical ill treatment and neglect is important, as is the substitution of “serious harm”, which is consistent with other areas of criminal law, for “unnecessary suffering”, including the inference that there can be necessary suffering.
The amendment also defines “harm” and “wilfully”, with the latter definition stating that the person has to have the capacity to foresee that an act or omission would be likely to result in harm but none the less unnecessarily took that risk.
We also support the amendment moved in the name of my noble friend Lord Ponsonby of Shulbrede that it should be specific that the age of children to whom a child cruelty offence applies is “under 18”.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I am very grateful to my noble friend Lady Walmsley for moving her amendment, to the noble and learned Baroness, Lady Butler-Sloss—we are delighted to see her in her place, taking part in our debate—and to the noble Lord, Lord Ponsonby, for outlining their respective amendments. They have all brought extensive knowledge to this debate. We have missed my noble friend Lady Hamwee, who cannot be in her place this afternoon. I am sure the whole House wishes her well.
The amendments all relate to the scope of the offence of child cruelty in Section 1 of the Children and Young Persons Act 1933. Before I address the amendments, it may assist the Committee if I explain our approach in Clause 62. I am grateful for the general welcome which the clause has received. I am grateful, too, for the support of the noble Lord, Lord Rosser. Many of those welcoming the Bill spoke in support of the amendments. That I understand, and I will try to address their concerns.
The offence in Section 1 of the 1933 Act is committed when a person over the age of 16 who has responsibility for a child under that age wilfully assaults, ill treats, neglects, abandons or exposes that child in a manner likely to cause unnecessary suffering or injury to health, including any mental derangement. That is the law as it stands. The noble and learned Baroness, Lady Butler-Sloss, has been among those who have argued for some time—as she has pointed out, in her discussions with my right honourable friend Damian Green in his ministerial capacity and with me— that the offence of child cruelty in the 1933 Act lacks the necessary clarity when it comes to tackling psychological suffering or injury to children.
Baroness Butler-Sloss
My Lords, the proposal to have mandatory reporting has many attractions. I think, however, that even with the exceptions that the noble Baroness, Lady Walmsley, has suggested, it may be too simplistic. There are already many organisations involved with children that have the obligation to report. For instance, the safeguarding of the Church of England requires people to report. The safeguarding of the Roman Catholic Church certainly does. I was vice-chairman of the Cumberlege Commission, in which we advised the then Cardinal Archbishop of Westminster how the clergy and members of the diocese of the Roman Catholic Church of England should be reporting, among other things. Our report was approved by the Vatican.
Obviously, there are the police, social services, the health services and so on. As the noble Baroness, Lady Howarth, said—and I endorse her words of wisdom—we need to look at this with a great deal of care because it is the issue of culture as much as the issue of prosecuting for failure to report which lies behind the problems we have. I hope the Minister will go away taking with him not only the understandable suggestions of the right reverend Prelate and the noble Baroness, Lady Walmsley, but also the words of the noble Baroness, Lady Howarth, as to what really needs to be looked at. I hope he will take all that away before coming to a decision on whether there should be mandatory reporting. I strongly support the caution that the noble Baroness, Lady Howarth, has put forward.
Lord Rosser
I will raise one question, to which I hope the Minister will be able to respond. The right reverend Prelate has referred to the indication given in the Commons last week by the Prime Minister that the Government were looking at whether we should change the law so that there will be a requirement to report abuse and it will be a criminal offence not to report it. Can the Minister be more specific than he appeared to be on the last group of amendments about the timescale within which the Government expect these deliberations to be concluded?
Lord Taylor of Holbeach
My Lords, this has been a very high-value debate whose contributions inform the Government. I will try to make sure that all colleagues in government with an interest in this matter are sent a copy of our debate.
I cannot give the noble Lord, Lord Rosser, any details of the timescale. If, in the course of time, I have more information, I will try to tell him in good time, but at the moment I cannot. In a way, this debate needs to be taken in conjunction with the one we had on my noble friend Lady Brinton’s debate; it covers very similar territory but it goes just that little bit further. I am grateful to my noble friend Lady Walmsley for tabling this amendment to enable us to look at this particular aspect.
There is a significant difference between the amendments. Amendment 40BZEA would place a duty on those working in regulated sectors who are in a position of trust in relation to children or vulnerable people to report suspicions of abuse to the appropriate local authority within 10 days. Breach of that duty would be a criminal offence punishable by up to three years in prison. This would mean essentially that anyone who works with children or vulnerable adults would commit a criminal offence if they did not report suspected abuse of any kind.
I hope that I can provide some reassurance to my noble friend Lady Walmsley and the right reverend Prelate the Bishop of Durham about the current process of referrals to social services. The noble Baroness, Lady Howarth, referred to this. It is important to recognise that existing statutory guidance is already crystal clear that professionals should refer immediately to social care when they are concerned about a child or vulnerable adult. Many thousands of referrals are made to children’s social care each year. In the year ending March 2013, there were 593,500 referrals—that is nearly 600,000. I am grateful to my noble friend Lady Walmsley for offering to provide me with figures that she has available, but I think that we need to bear that figure in mind and appreciate the scale of the situation that we are seeking to engage in.
The most important thing is that people understand how to spot abuse and neglect and the impact that it has on children and vulnerable adults. While we are continuing to review the evidence for the specific case of reporting in regulated settings, we are also continuing to take action to improve the knowledge and skills of professionals working with children and other vulnerable people.
As I indicated in my response to the previous group of amendments, the Government fully understand the public’s anxiety about the potential underreporting of abuse, particularly sexual abuse. I can wholeheartedly support my noble friend’s objective with this amendment; we all want to see improved safeguarding for all children and vulnerable adults. As I have said, we are actively considering the case for a mandatory reporting duty, but the issues are complex, as the noble Baroness, Lady Howarth of Breckland, pointed out. As the noble and learned Baroness, Lady Butler-Sloss, said, we need to consider what form such a duty might take, to whom it would apply and in what circumstances, and what the sanction for failure to comply should be. This amendment offers one approach, but we have just debated an alternative, more focused proposal, and the NSPCC has suggested a third model. Other organisations working to safeguard children and vulnerable adults will have ideas of their own as to how a mandatory reporting regime should be structured, as will other noble Lords. I have sought to encourage noble Lords to make sure that those conducting such investigations are aware of their views.
I can only again seek to reassure my noble friend and the right reverend Prelate the Bishop of Durham that we are actively examining the options and treating the matter with the urgency that it deserves. While I cannot undertake to bring forward government amendments on this issue on Report, I certainly expect that, by then, I will have more to say on where we have reached in our consideration of this important matter. Having put the issue firmly on the table as my noble friend has done, I hope that she will now be content to withdraw her amendment.
Baroness Howarth of Breckland
I briefly add my voice to this. Again, if I had not had quite such a troubled week, I might have added my name to this amendment.
A couple of years ago I went, on behalf of the Lord Speaker, to a conference about this. In my lifetime, I have seen a great deal in terms of abuse, but seeing a film of this actually happening shook me to my core. We did not just hear the screams, but we actually saw the action that was happening to this young woman. When we talk about female genital mutilation, it gets a little sanitised at times. It is utterly appalling pain. Some young women in foreign countries die because of the follow-up, and certainly we know young women in this country are traumatised. I, too, hope that the Government will take this away.
Lord Rosser
My Lords, the purpose of our Amendment 40CA in this group is to provide anonymity for victims of female genital mutilation by providing for any offences under Sections 1 to 4 of the Female Genital Mutilation Act 2003 to come within the terms of Section 2 of the Sexual Offences (Amendment) Act 1992, which for example provides anonymity for rape victims and victims of various other sexual offences to encourage more to come forward.
We recognise that protecting young girls and women from FGM requires action beyond legislation to tackle the social norms in which it operates, and implement a preventative approach. However, if progress is to be made in addressing and preventing what has already been described in this debate as the abhorrent practice of female genital mutilation, then cases will have to be successfully prosecuted through the courts. That means people who are victims of this practice being willing to come forward and give evidence. As we know, this is not some small, minority offence. It has been estimated that more than 20,000 girls under 15 are at high risk of female genital mutilation in England and Wales each year, with the risk being highest for primary school girls.
The Director of Public Prosecutions, who will surely know better than anyone the difficulties in persuading victims to come forward and give evidence in court, has called for victims to be given the right to anonymity to make it easier to bring charges against alleged perpetrators. She was quoted as saying recently:
“It is a very difficult injury to talk about. It is an abuse of their body and it is not a part of the body that people want to talk about in public”.
The Home Affairs Select Committee has also identified that a key difficulty in securing prosecutions is the ability to gather sufficient evidence and has said that,
“if victims had the protection of press and broadcast anonymity, this might encourage more to come forward. … we recommend the Government bring forward proposals to extend the right to anonymity under the Sexual Offences (Amendment) Act 1992 to include victims of FGM”.
Our view is similar. Anonymity is granted to victims of rape, among other offences, because of the sensitivity and stigma attached to such an offence, and the sensitivity and stigma that surround female genital mutilation must be at least as intense. Victims should be protected in the way called for in our amendment. If anonymity would encourage more victims to come forward, it must surely be overwhelmingly in the public interest to go down this road, particularly taking into account the lack of prosecutions to date. Where cases of female genital mutilation go to court, victims should also be entitled to the same support and special measures to which other vulnerable victims are entitled. I sincerely hope that the Minister will be able to give a positive response.
Earl Attlee (Con)
My Lords, I am grateful for the expert way in which the noble Lord, Lord Rosser, introduced his amendment. I have no greater arguments than the ones he adduced. I strongly support him and urge the Minister to consider his suggestion very carefully. I have one final thought: what would the view of noble Lords be if we were talking not about FGM but MGM?
Lord Rosser
My Lords, we are associated with these amendments and support them. I do not intend to go through the points already so eloquently made by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Walmsley, except simply to repeat that the current system of non-statutory notices does not encourage confidence in the system from victims and their families in the ability of the police to protect them when the provisions are breached. The notice leads to no action being taken unless the thresholds of an abduction threat have been met, which is not always the case. As has been said, the threshold means that the adult must have taken or detained the child.
Creating an offence of breach of a proposed child abduction warning order is likely to strengthen victims’ confidence in seeking help and protection, since it will lead to action being taken against the perpetrator if they breach the order. Once again, I hope that the Minister will be able to give a positive response.
Lord Taylor of Holbeach
Again, this has been an interesting debate, and I thank all noble Lords who have spoken in it. Child exploitation is an abhorrent crime and we are determined to tackle it in whatever form it takes. The findings of a recent parliamentary inquiry, of which noble Lords will be aware, chaired by Sarah Champion MP and supported by Barnardo’s, have been very helpful in contributing to the ongoing work being done by the Government to tackle child sexual exploitation. The recommendations of that inquiry will be crucial in helping to inform our policy and improve our understanding of this form of offending and, indeed, what more we should be doing about it. Specifically, the inquiry received significant evidence relating to child abduction warning notices and, as a result, this issue featured prominently in their report and is now the subject of these two amendments.
It might help if I updated noble Lords on government thinking in this area as at present. This Government have already taken clear action to tackle child sexual exploitation. As the Committee will recall, as part of the Anti-social Behaviour, Crime and Policing Act 2014, we are introducing a number of new police powers. First, we are providing for more effective civil prevention orders, namely the new sexual harm prevention order and the sexual risk order. Secondly, new powers will allow the police to require hotels and similar establishments to provide information about guests whom they believe may be involved in sexual exploitation. Thirdly, we are bringing in strengthened powers for police to close premises associated with child sexual exploitation, a provision championed by the noble Baroness, Lady Smith, who cannot be in her place today but for whose support on this matter I am very grateful.
With regard to child abduction warning notices, I am grateful to the noble Lord, Lord Rosser, for articulating the case for putting these notices on a statutory footing. The Government note that proposals to strengthen the impact of these orders have the support of the police, legal experts, representatives of local agencies, young people who have been affected by sexual exploitation, children’s charities and others. As part of the work of the National Group on Sexual Violence against Children and Vulnerable People, my ministerial colleagues have given assurances that the Home Office would look at the effectiveness of the existing child abduction warning notices and, in liaison with police colleagues, examine how best this tool can be used in future. In doing so, we will consider carefully the operational benefits of putting these notices on a statutory footing and how such a statutory scheme might operate. We are currently consulting carefully with policing colleagues to seek their views on the potential use of a statutory notice and whether, in their view, further changes are required to better protect children.
Amendment 40CC is an important contribution to this debate. The existing non-statutory child abduction warning notices are issued by the police. That is entirely appropriate where breach of a notice is not, of itself, a criminal offence. But it would be an unusual step for the police themselves to impose what amounts to a restraint order or injunction, breach of which is a criminal offence. If we made it statutory, we would have to consider that. Compare, for example, restraint orders under the Protection from Harassment Act 1997 which are granted by the courts. Other civil preventive orders, such as serious crime prevention orders and gang injunctions which are dealt with elsewhere in this Bill, are also subject to judicial oversight. We would need to see how that played in with the current arrangements of non-statutory warning notices.
Other issues that we need to consider are the test for the grant of an order, the prohibitions or restrictions that may be attached to an order and the penalty for breach. I note, too, that the amendment requires a child to have been found two or more times in the company of the person to be made the subject of an order. Elsewhere, the inquiry proposed amending the grooming offence in Section 15 of the Sexual Offences Act 2003 to remove the requirement for a second contact with the child. The Government have now tabled an amendment to the Criminal Justice and Courts Bill to that end, as my noble friend Lady Walmsley said. We need to consider whether the approach taken in child abduction warning notices should mirror that in the amended grooming offence.
Amendment 40CB seeks to raise the age threshold from 16 to 18 years for the child abduction offence in Section 2 of the Child Abduction Act 1984, bringing it into line with the summary offence in Section 49 of the Children Act 1989 of abducting a child in care. Children in care are particularly vulnerable and that is why the Children Act 1989 makes it an offence to take any child who is in care, including a 16 or 17 year-old, away from the person responsible for them without lawful authority or reasonable excuse. However, while we recognise the arguments made for consistency, there are contrary arguments and difficult issues raised. Young people aged 16 and 17 can live independently of their parents and, in many respects, are able to make their own decisions about how they live their life, including their sexual relationships. It is in recognition of this that the Child Abduction Act 1984 applies only where the child is under 16 and the 1980 Hague Convention on the Civil Aspects of International Child Abduction ceases to operate when the child reaches the age of 16 years.
However, we are committed to examining the case for placing child abduction warning notices on a statutory footing. The noble Lord, Lord Rosser, has made a reasoned case for doing so and it deserves serious consideration. All speakers tended to favour the idea that statutory footing for the child abduction warning notices should be considered. While Report stage is some three months off, I cannot say to noble Lords that we will have completed our review by that point. I can undertake to update the House on progress and, of course, noble Lords are free to bring back the amendment, or a variation of it, at the next stage. I hope that I will be able to update noble Lords on how the Government have progressed arguments. Clearly, the debate we have had today will be helpful.
I cannot say the same in connection with Amendment 40CB. That amendment would have significant wider implications and for the reasons I have given I am not persuaded of the case for that particular change. However, given what I have said, I hope that the noble and learned Baroness, Lady Butler-Sloss, in proposing the amendment at the beginning of this debate, will feel free to withdraw the amendments tabled in her name and that I will have the opportunity when we return to this subject of updating noble Lords accordingly.
Lord Rosser
My Lords, Section 5 of the Terrorism Act 2006 makes it an offence to engage in any conduct in preparation for giving effect to an intention to commit or assist another to commit one or more acts of terrorism. It also makes it an offence under Section 6 to provide or receive training for terrorism. The Act also provides for extraterritorial jurisdiction so that an offence may be tried in this country in respect of acts committed abroad. However, this is limited or non-existent in respect of the Section 5 and Section 6 offences to which I have referred.
Clause 65 would provide for extraterritorial jurisdiction for the Section 5 offence and extend the existing extraterritorial jurisdiction for the Section 6 offence. Such extraterritorial jurisdiction is considered appropriate for Section 5 and Section 6 offences because the places where training or preparation for terrorism are taking place are increasingly likely to be located abroad and will enable prosecutions in this country of people preparing or training more generally for terrorism who have, in the current circumstances, travelled from the UK to fight in Syria, where various groups are involved in the conflict.
We do not oppose this clause being in the Bill but have some points to raise about what the impact of the provision is expected to be—hence this debate on whether the clause should stand part of the Bill. I appreciate that the Minister may not be in a position to be too specific in his response, but can he give some examples of the kind of prosecutions which it will be possible to pursue under Clause 65 which it has not been possible until now to pursue under the existing legislation, and which would have been pursued had Clause 65 been effective? If prosecutions have already taken place for the offence of preparing for terrorist activities, what does Clause 65 add in reality to the legislative armoury? Has there been consultation with the Director of Public Prosecutions on the need for Clause 65? If a loophole in the current legislation has been identified which constitutes a potential threat to our security, does the Director of Public Prosecutions believe that the provisions of Clause 65 constitute the best way of addressing that loophole?
As I understand it, prosecutions under Clause 65 would need to be in open court and any evidence brought would have to be evidence acceptable in open court and disclosable in open court. If I am right in saying that, presumably intercept evidence and the evidence of informers, for example, will not be usable. In respect of people coming back from Syria, how is it envisaged that it will in practical terms be possible to gather evidence for a prosecution which relates to what the individual has done in Syria that can be pursued in open court? If the evidence to pursue a prosecution under Clause 65 cannot be used in open court, will a terrorism prevention and investigation measures order be sought, which would enable, for example, intercept evidence and the evidence of informers to be used, albeit it would be to obtain the appropriate order rather than to seek a conviction? Or are the Government claiming that Clause 65 will remove the need for TPIMs in a situation where no one on a TPIM has ever been prosecuted and when, in his last report, the Independent Reviewer of Terrorism Legislation said that TPIMs continued to be needed?
I hope that the Minister will be able to address these points in his reply. Bearing in mind that Clause 65 relates to an extension of extraterritorial jurisdiction to enable offences to be tried in this country in respect of acts committed abroad under Sections 5 and 6 of the Terrorism Act 2006, it is not clear what the actual impact of Clause 65 will be as much of the evidence that becomes available is, if I have understood the situation correctly, unlikely to be able to be presented in open court and could be used only in seeking a TPIM order.
Lord Taylor of Holbeach
My Lords, I am grateful to the noble Lord, Lord Rosser, for affording the Committee an opportunity to debate this issue. I am sure that the noble Lord and, for that matter, the Committee as a whole will be in no doubt about the significant threat posed by foreign fighters, particularly in relation to Syria, and the importance the Government place on protecting the public from those who may seek to harm the UK or UK interests.
The nature of the threat from terrorism has evolved since the passing of the Terrorism Act 2006. Many of the threats we face today have significant overseas connections and the places where UK-linked individuals, and those seeking to harm UK interests, may now be training, or otherwise preparing for terrorism, are increasingly likely to be located abroad. Syria, in particular, has become the number one destination for jihadists in the world today, posing a threat to the region and beyond. However, the issue of individuals from the UK seeking to engage in combat and conflicts abroad is not new, nor is it specific to Syria. As my noble friend Lady Warsi, who is sitting next to me preparing to respond to the debate following this Committee stage, will be aware, the recent events in Iraq further demonstrate the fluidity of movement of foreign fighters and we are concerned that groups such as the al-Nusra Front and the Islamic State of Iraq and the Levant—or ISIL, as it is known—are now able to operate in the large areas of ungoverned space that have been created by the conflict. ISIL’s advances in Iraq in particular demonstrate the serious threat that that group poses to both countries, so it is right that we respond to this threat.
In support of wider government efforts to ensure that the full range of operational responses under the Contest strategy are being applied to counter this threat, Clause 65 amends Section 17 of the Terrorism Act 2006. This extends fully the jurisdiction of the UK courts over the offence of preparation of terrorist acts under Section 5 and the offence of training for terrorism under Section 6 of that Act so that preparation and training that take place abroad can be prosecuted. This measure will enable prosecution, on their return to the UK, of individuals who have travelled overseas to prepare or train for terrorism as though their actions had taken place in this country. Any prosecution under this measure will require the express consent of the Attorney-General, in addition to satisfying the Crown Prosecution Service that there is sufficient evidence and that prosecution is in the public interest. Our priority is to dissuade people from travelling to participate in conflicts abroad in the first place, but it is vital that our legislation is as robust as it can be against those who may seek to harm the UK in particular, and leaves no doubt in the minds of individuals engaging in preparatory acts of terrorism, or training for terrorism overseas, of the action we are prepared to take to protect the public.
The noble Lord asked whether it would enable us to prosecute cases which were not prosecutable at present. Recent cases show that these offences can be operationally useful. Mashudur Choudhury was recently convicted under Section 5 of preparing for terrorism in the UK. If, for example, he had undertaken these preparations outside the UK, he could not have been prosecuted. This measure seeks to address this anomaly.
How will this measure have an impact on foreign fighters? We assess that by extending UK territorial jurisdiction for this offence and bringing evidence of activities overseas within its scope, we will potentially strengthen the evidential case that can be made and enhance the prospects of a successful prosecution in some cases. In cases where there is only evidence of activity abroad, it will enable a prosecution to be brought where it is not currently possible.
The noble Lord asked whether we had consulted the Director of Public Prosecutions. We have worked closely with law enforcement partners, including the Crown Prosecution Service, in developing this measure. They fully support it and have suggested that this will be operationally useful. As for the question about gathering evidence and how law enforcement agencies will obtain the evidence required for a prosecution, particularly as it involves evidence gathering abroad, law enforcement agencies are accustomed to working with the relevant authorities in other countries for the purpose of gathering evidence for prosecutions. We fully expect that this established arrangement will continue to be employed for future prosecutions.
We recognise that any evidence gathering which involves other countries is inherently more challenging than if it were confined to the UK, but this does not mean that prosecution is impossible. That is the purpose of introducing these measures in Clause 65. These changes will ensure that UK linked individuals and those who seek to harm UK interests and travel overseas to prepare or train for terrorism can be prosecuted as if their actions had taken place in the UK and that they are not beyond the reach of the law. It is essential that our law enforcement partners are equipped with the right powers to counter the threat posed by foreign fighters who travel overseas to undertake terrorist activities and may go on to carry out terrorist attacks.
I hope that with those explanations the noble Lord will be prepared to accept that Clause 65 should form part of the Bill.
Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2014
Lord Rosser Excerpts(10 years, 4 months ago)
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Baroness Hamwee (LD)
My Lords, this is consequential on previous debates. It is amazing how much and how quickly all that agonising goes out of one’s head, and one has to remind oneself of the subject of it. I am glad that we have had the chance to consider the draft code of practice and the covering SI. What concerns me is the delay in the introduction of the review arrangements, which I assume is because it has simply not been possible to get the training in place quickly enough. I am not suggesting that the better provisions of the legislation, as they are after the work done on the then Anti-social Behaviour, Crime and Policing Bill, should be delayed. However, could my noble friend confirm that training is on track for the more senior officers, who will be detailed to undertake the reviews, and how supervision will be carried out in the mean time? I notice that the code says that it will be delayed until the relevant provisions come into force. However, in distinction, the paragraphs about audio recording say that there is no requirement to follow the code until next April. That is the time when the review provisions are to come into force, or so we are told. I do not know whether I am seeing a problem where there is none. Perhaps my noble friend has information, although he may not, about the proportion of officers who will be trained to undertake the more senior role.
I shall raise a point again that I raised during the passage of the Bill. Will training cover how officers should deal with the family or other accompanying passengers of the individual who is being held or detained? I think that I mentioned during the Bill’s passage that I had come across an example, which I hope was a rare one, of an individual being told that, if he insisted on waiting for a legal representative, it would be a problem for his elderly mother, with whom he was travelling. In other words, inappropriate pressure was put on him to forgo a right. I am also not clear what happens if, because of detention, passengers miss their flights. I hope that my noble friend can also confirm that the facilities for this work are satisfactory and appropriate. We have talked about short-term holding facilities a good deal, of course.
The code refers to legal privilege, where the restriction seems to be on copying, not on looking at it. You cannot erase something from your head although, obviously, there would be a restriction on using it—but what happens if a privileged document is copied when it should not be?
Paragraph 41 suggests that consultation with a solicitor is invariably not allowed. This is in the examination part of the code, not the detention part. I had thought that it was always allowed, but not necessarily with a solicitor of the individual’s choice. Is that only when the individual is actually detained?
Paragraph 42 states that an examining officer may grant a request that a named person is informed of the examination at his discretion and that:
“Where reasonably practicable, the request should be granted”.
Is it discretion or reasonable practicality?
Paragraph 45, which is where we get on to detention, states that the power may be exercised,
“where the examining officer considers it is appropriate to do so”.
The last bullet point of paragraph 46 states that:
“Detention is an option (during the first hour of examination)”.
Is that bullet point just about the first hour of detention? If I am asking too many questions, I have no doubt that my noble friend will ask to write to me.
However, I will raise a couple of matters which I hope he can confirm now. First, paragraph 7.2 of the Explanatory Memorandum reads:
“Examining people at ports and the border area contributes daily to plan, finance, train for, and commit their attacks”.
I shall not reread that, but when the Minister looks at it, he will realise that some words must be missing. I do not think you detain people in order to help them plan their attacks. I have had a word with the Minister’s officials, and I think they think it is a typo, but quite an important one.
My second question is on similar lines, but I think I am on dodgier ground. It is on annexe A to the code, which explains to the detainee that he is detained to determine essentially either whether he is involved in terrorism or whether he is entering or leaving Northern Ireland. I thought, or perhaps I had assumed without applying much thinking, that it should be “and” rather than “or”. Looking at Schedule 7, Northern Ireland is dealt with in a separate paragraph. Will my noble friend confirm that detention can be solely to establish whether somebody is going into Northern Ireland without any terrorism-related aspect? I am sorry to have slung that at my noble friend. I looked at this rather too close to the time of the debate to give him notice of the rather detailed points which I have just raised.
Lord Rosser (Lab)
I will be giving the Minister a somewhat easier time than he has just been given by the noble Baroness, Lady Hamwee.
I thank the Minister for the explanation of the purpose of this order, which brings into operation a code of practice for examining officers and review officers in respect of the exercise of the powers under Schedule 7 to the Terrorism Act 2000 and under Schedule 8 to that Act where the powers are exercised in connection with Schedule 7, as amended by Schedule 9 to the Anti-social Behaviour, Crime and Policing Act 2014. The code of practice revises the preceding code of practice to take account of amendments made to Schedules 7, 8 and 14 to the Terrorism Act 2000 by the Anti-social Behaviour, Crime and Policing Act 2014.
The Explanatory Memorandum refers to commencing the remaining provisions of Schedule 9 to the 2014 Act this month to coincide with the issue of the code of practice brought into operation by this instrument, with the exception of the provision to which the noble Baroness, Lady Hamwee, referred requiring review of the detention of persons detained under Schedule 7, which are being delayed until next April to allow sufficient time to develop, accredit and train all examining and review officers. I shall pursue some of the points she raised. Will the Minister say how many examining and review officers still require to be trained, how long the training of each officer takes and why the required training has not been completed by this month and has had to be delayed? The need for such training must have been known for some time. Could the Minister also spell out the impact of this delay, in practical terms, including any impact on the provisions of this instrument, which comes into force at the end of this month?
The Explanatory Memorandum also refers in paragraph 4.5 to consultation on this issue having taken place with “National Business Leads”. Perhaps the Minister could remind me who or what this organisation is or these people are.
As the Minister said, the Explanatory Memorandum states in paragraph 7.2 that:
“Schedule 7 is an important part of the UK’s counter-terrorism strategy and key to the UK’s border security”.
The memorandum goes on:
“The changes to Schedule 7 in the Anti-Social Behaviour, Crime and Policing Act are intended to reduce the potential scope for Schedule 7 powers to be operated in an unnecessary or disproportionate way, whilst still retaining their operational effectiveness”.
It then lists the changes made under the 2014 Act. They include ensuring access to legal advice for all individuals examined for more than one hour. In that regard, could the Minister clarify what legal entitlements people have when detained under Schedule 7? Will they have access to free legal advice?
The changes also include reducing the maximum period of examination from nine hours to six hours. The Government and others recently expressed concerns about the numbers going from this country to Syria apparently to be trained and engage in violence in the current conflict, and the possible consequences of that. In the light of concerns about what might happen if and when these people return to this country, with or without others, and what their intentions might then be, is it the Government’s view that all the changes made by the 2014 Act, including reducing the maximum period of examination from nine hours to six hours, actually enhance our ability to minimise the risk of those potential threats? Do the Government believe that the new code of practice provided for in this order—reflecting the amendments made to Schedule 7 to the 2000 Act by the 2014 Act—contribute to rather than potentially diminish our security in the present climate?
I simply conclude by commenting that the Explanatory Memorandum states that,
“the majority of consultation respondents agreed that the revised code clearly reflected the changes made to Schedule 7 powers in the”,
2014 Act. What it is not able to say is that the majority of respondents agreed that in today’s climate all those changes are still appropriate. We will not oppose this order, but I hope that the Minister will respond directly to the points and questions I raised, as well as those of the noble Baroness, Lady Hamwee.
Lord Taylor of Holbeach
My Lords, I thank both my noble friend Lady Hamwee and the noble Lord, Lord Rosser, for their contributions to our discussions on these issues. It is important that I try as best I can to answer the questions now. If there are things left unsaid at the end, I am obviously very happy to write. It was fortunate that there was a brief adjournment before we started because it gave my noble friend a chance to have a word with officials and give advance notice of the things that she was particularly concerned about. Perhaps I can deal with the details.
On paragraph 7.2, we can give an undertaking that we will correct the wording so that it reads as it should. It is perhaps not capable of being interpreted at the moment. As my noble friend admitted, she was on slightly weaker grounds when it came to annexe A because the wording is designed to ensure that the code of practice works equally well whether the person is stopped at a GB port or the person is stopped at the Irish border. That is why the wording is as it is. Perhaps my noble friend will tell me if she feels that that is not correct.
She asked whether training was on track. It is on track and is a nationwide programme. We are working out a training package and rolling it out nationally because we want to make sure that we operate to consistently higher standards. I know that the noble Lord, Lord Rosser, asked for quite a few details about the training programme, the time taken and what was involved. If he is happy for me to do so, I should be pleased to write to him with further details of what the training involves.
Lord Rosser
I am happy to await a letter from the Minister but can he cover in his reply why the training has been delayed? The word “delay” is used in the Explanatory Memorandum. I mentioned that the need for such training must surely have been known for some time. He could address that point in his letter, as well as the impact on the instrument of the delay referred to in the Explanatory Memorandum.
Lord Taylor of Holbeach
I am quite prepared to do so. I know off the top of my head that the problem is that standards are not equal across the country, but we are obviously now trying to make sure that officers’ roles under these powers are considerably enhanced and need to operate properly at every point. We are cutting down the hours, which is fine; there is no security risk by doing that as long as the process is properly managed and dealt with. That is part of the reason for the change.
My noble friend said that she thought there was perhaps already an opportunity for consultations. As I say, the interview depended on whether it involved those detained at a port or those detained in a police station. Those detained within a port were not necessarily supported with the same rigour as those detained within a police station. That will change under this new regime.
The noble Lord, Lord Rosser, asked which organisations we consulted. I do not have those names but I would again be happy to write to him. If I may, I will write both to the noble Lord, Lord Rosser, and to my noble friend Lady Hamwee together, so that they will also have the answers to each other’s questions. I know that they share an interest in those answers.
That more or less concludes my response, although I wish to mention a couple of other things. Review provisions will commence on 1 April 2015. Audio recording is delayed to allow facilities at ports to be provided; noble Lords will understand that facilities at ports are not as good as they may be elsewhere, but it is already a requirement to report interviews at police stations.
I hope that I have been able to deal with at least some of the questions. I remind everyone that only 1% of examinations result in detention, and 96% of those examined under Schedule 7 are held for less than an hour. We are dealing with those in detention, who are a relatively small number of individuals, but we must make sure that they are properly safeguarded and that we have processes in place to ensure that the security of the country is maintained.
Lord Rosser
My Lords, I do not know whether the noble Lord wishes to respond to me now or in a letter, but I referred to the reduction in the period for examination from nine hours to six hours, and to the concerns expressed very recently about what is happening with people going to Syria, then perhaps returning to this country, and what their intentions may be. I asked the Minister whether the Government feel that the provisions covered in the code of practice, and which arise as a result of the 2014 Act, are all still appropriate in the light of the security concerns being expressed by the Government and others in relation to Syria.
Lord Taylor of Holbeach
I can assure the noble Lord that they are appropriate. Indeed, the independent reviewer of terrorism legislation recorded in his report in 2012 that these particular interviews have been instrumental in securing evidence which has assisted in terrorist prosecutions, and that they are very important. The truth of the matter is that the number of people detained for over six hours is very small and usually confined to circumstances where the examination was more protracted than it needed to have been. We are now satisfied that we can do this within six hours, otherwise we would not be bringing this legislation forward.
Serious Crime Bill [HL]
Lord Rosser Excerpts(10 years, 4 months ago)
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Lord Rosser
“(4A) In considering whether to make a compliance order the court must, in particular, consider whether any restriction or prohibition on the selling of property subject to the confiscation order and located overseas ought to be imposed for the purpose mentioned in subsection (2).
(4B) The court may attach penalties to a failure to comply with provisions made pursuant to subsection (4A).”
Lord Rosser (Lab)
The three amendments in this group are concerned with recovering money from overseas or in response to such requests from overseas jurisdictions. Many investigations into stolen assets parked in this country do not get off the ground because the Home Office routinely fails to respond, or is unable to respond, to requests for help from other countries. The Home Office has shown in Parliamentary Answers that, despite UK courts freezing more than £200 million at the request of overseas jurisdictions, not a single penny of this has been repatriated to the country asking for the money. Since 2010, it seems that only two bilateral agreements have been signed with overseas jurisdictions to ensure co-operation on mutual legal assistance.
Last year, the former head of the UK financial intelligence unit—part of the National Crime Agency—indicated that when an investigation was initiated from the victim country, and moneys were suspected to be in the UK, the request went out through all the proper channels but there was no great keenness to comply, as there was a mindset that we could just be giving ourselves a headache. Assuming that is a fair analysis, such an approach does not help foster greater reciprocity at international level and cannot help us in securing co-operation when we want it from overseas jurisdictions. The Minister may well contest this analysis, since it suggests there are somewhat different reasons for the problem from those given in the Government’s impact assessment.
It would be helpful if the Minister could provide information on the number of asset recovery requests received from foreign authorities over the past three years, how many have been referred to investigative bodies and how many cases are pending. The World Bank estimates that, each year, developing nations lose between $20 billion and $40 billion through corruption. Between 1994 and 2009 only $5 billion of stolen assets were recovered globally—which is apparently less than 2% of the lowest estimate of the amount stolen, according to an analysis by the World Bank and the United Nations Office on Drugs and Crime.
Amendment 22 in this group requires the Secretary of State to set up,
“an independent review of the effectiveness”,
of our mutual legal assistance arrangements,
“with overseas jurisdictions in cases concerning the proceeds of crime”,
since the figures that are available, the comments made by people who have been on the inside and, indeed, the rather different causes of the problem that are set out in the Government’s impact assessment all strongly suggest that everything is not well. Criminals here also seek to hide their ill gotten gains overseas, and a significant proportion of unpaid Serious Fraud Office confiscation orders are thought to relate to funds located overseas. Criminals put their assets where the UK authorities find it hardest to recover them, which usually means a jurisdiction with which we have no standing mutual co-operation arrangements. Even where this is not the case, without mutual recognition of confiscation orders in the jurisdiction where the assets have been hidden, those charged with enforcing the orders effectively have to relitigate the issue abroad, which can be hard, slow and not very effective.
In Clause 7, proposed new Section 13A provides that in every confiscation case the court will be required to consider making an order to ensure that a confiscation order is paid. In particular, it will have to consider placing a “restriction or prohibition” on the defendant’s overseas travel to prevent that defendant travelling abroad to dispose of his or her assets. Perhaps we ought to consider going further. At the moment, there is nothing the courts can do about people who sell overseas property funded through proceeds of crime because it is in another jurisdiction. We consider that a court should be in a position to fine or jail someone, possibly by making it a contempt of court, if he disposes of property based overseas that is subject to a freezing or confiscation order. Amendment 2 provides for Clause 7, on compliance orders, to be amended to that effect.
We also consider that there should be a consultation on introducing a legal obligation to repatriate liquid assets that are subject to a restraining or confiscation order and which appear to have been moved overseas. Amendment 21 in this group provides for a consultation along these lines. I hope the Minister will be able to give a helpful response to the amendments in this group, since we are at one in seeking to make sure that crime does not pay.
Lord Taylor of Holbeach
My Lords, Amendment 2 relates to compliance orders. Under the provisions in Clause 7, the court will be required to consider making, in every confiscation case, any order it considers appropriate to ensure that a confiscation order is paid. Under the new order, the court will be able to impose any restrictions, prohibitions or requirements it believes appropriate to ensure that a defendant pays a confiscation order and that the order is effective. A compliance order will normally be made at the time that a confiscation order is granted. If the court determines that a compliance order is not necessary at that confiscation hearing, the prosecutor will be able to apply for an order any time afterwards as long as the confiscation order remains unpaid. This type of order is not new to the Proceeds of Crime Act 2002, as the Act already confers on the Crown Court the power to make any,
“such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective”.
Amendment 2 would require the court to consider attaching to a compliance order a restriction on selling overseas property that is the subject of a confiscation order. It is, however, already possible to impose such a restriction as part of a restraint order, as the noble Lord will understand from what I have just said. A restraint order can be obtained at a significantly earlier stage in an investigation—for example, before the defendant has been charged. Such a restriction may also be added to a compliance order where there is no restraint order in place. As such, it is not necessary to make express provision for the court to consider such restrictions or prohibitions. The court already has that discretion. It is worth adding that, once a confiscation order has been made, it may be necessary to sell property to enable the order to be paid off. In high-value cases, this may fall to a court-appointed receiver. In addition, not all defendants will have assets overseas so it would not be necessary to require the court to consider imposing such a restriction in every case.
Amendment 21 seeks to confer on the court, when making a restraint or confiscation order, a power to require the defendant to repatriate liquid assets held abroad back to the UK. The Proceeds of Crime Act already allows the court to make any order that,
“it believes is appropriate for the purpose of ensuring that the restraint order is effective”,
as I have already said. That could include, for example, a requirement for liquid assets to be returned to the UK. Breach of the terms of a restraint order, including selling property that is frozen under the terms of the order, will be a contempt of court and, as such, punishable by a term of imprisonment of up to two years.
Finally, Amendment 22 calls for a review of mutual legal assistance. The movement of money and assets quickly across borders means that it is essential that the UK seeks the assistance of its international counterparts so that it can quickly freeze and recover the proceeds of crime, and it can likewise assist jurisdictions that ask the UK for assistance. Historically, international co-operation on asset recovery has been poor, as the noble Lord, Lord Rosser, said. We depend on other countries to enforce our orders on our behalf, but these orders may not be given priority. Some countries are witting or unwitting safe havens for criminal assets.
Lord Rosser
I thank the Minister for his reply on this group of amendments. As I understand it, the Minister was saying that, as far as Amendments 2 and 21 are concerned, the current legislation already gives the power to do what is set out in those amendments—at least, I think that was the thrust of the Minister’s reply. Obviously, at least if I have understood the essence of his reply, I just wish to leave the matter in the context that clearly I will wish to read in Hansard the details of the Minister’s response.
On his response to the last issue, on mutual legal assistance, I am sure that the Minister will understand if I say that I will want to read it, since he gave some statistics and information on the current situation. I shall read that with interest when Hansard appears.
Lord Taylor of Holbeach
The noble Lord asked me some questions about numbers, which I did not have to hand in my papers. I am willing to see whether I can find further information which I can give him, because I agree that it is an area where a modest improvement in performance could lead to considerable improvement in the amount of money that we recover.
Lord Rosser
I am grateful to the Minister for those comments. I suppose that part of the reason for my saying that I would want to see the detail of the figures that he gave was to see whether he had in fact responded to the questions that I asked, but if he, too, is going to look at that, and if there are parts to which he did not respond on which he will write to me, I will be grateful. In view of that, I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
Under the Proceeds of Crime Act 2002, a default sentence of imprisonment can be imposed against a defendant if a confiscation order remains unpaid past its due date. Of course, as we know, this Bill increases the maximum default sentences where the confiscation order is for more than £500,000. Those increases are from five years to seven years for orders of more than £500,000 but no more than £1 million, and from 10 years to 14 years for orders of more than £1 million. The Bill also ends the automatic release at the halfway point of a default sentence for confiscation orders of more than £10 million.
These changes are being put forward by the Government because of the significant number of higher-value confiscation orders that go unpaid. Some would say that that is putting it far too mildly, because the amount collected by the police and the volume of the confiscation orders have fallen, yet there are still some £1.5 billion of outstanding orders because assets have been hidden. They have been moved away overseas, or they have been reduced by third-party claims. Only 18% of confiscation orders worth more than £1 million are recovered. A National Audit Office report has indicated that just 26p of every £100 of profit a criminal makes is confiscated. On top of this, the costs of recovering proceeds of crime are high, since investigation, prosecution and enforcement costs come to 76p out of every £1 collected.
In light of this, it is not clear why the Government are proposing only that automatic release at the halfway point of a default sentence should cease in respect of confiscation orders of more than £10 million. The Government’s own fact sheet on the Bill says that it is the higher-value orders that go unpaid. It is the Government who are proposing that orders in excess of £1 million should potentially attract the new maximum default sentence of 14 years. Having said that, since 1987 confiscation orders of £1 million or more have constituted well under 1% of such orders imposed by the courts.
The Government clearly believe that more time in prison for non-payment of a confiscation order is justified and will have some impact, since it is proposing, as I said, that the default sentences should be increased from five years to seven years for orders of more than £500,000 and up to £1 million and from 10 years to 14 years for orders of more than £1 million.
The current maximum default sentence is 10 years, which in practice means release on a tag at three years and without a tag at five years. Increasing the maximum for orders of more than £1 million from 10 years to 14 years will probably have some impact. It seems unlikely, however, that less than another 18 months at maximum in prison before being released on a tag will produce a significant shift in the attitude toward payment of a confiscation order of criminals with just under £10 million hidden away.
The National Audit Office found that in 2012 only 2% of offenders paid in full once the default sentence was imposed. The NAO also found that there are currently 11 criminals who still have not paid their confiscation orders, which remain due to the Serious Fraud Office after they have served their default sentence. Criminals should not be able to gain by not paying back money obtained through their criminal activities by choosing to go to prison in the knowledge that the time they spend in prison will be cut short.
The National Audit Office report pointed out that the current system does not work when it said:
“The main sanctions for not paying orders, default prison sentences of up to 10 years and additional 8% interest on the amount owed, do not work”.
The Bill itself suggests a degree of uncertainty over the £10 million threshold for the ending of automatic release at the halfway point of a default sentence, since there is provision for a power to lower this £10 million threshold through secondary legislation. A further order-making power also allows for minimum default sentences to be introduced in the future—a point on which I will comment later.
So what is the Government’s argument for saying that £10 million is the right figure rather than either of the figures of £1 million or £500,000 in our two amendments—or, indeed, any other figure? The £1 million is in effect the figure at which the Government are proposing that a maximum default sentence of 14 years rather than 10 years should apply.
The Government’s impact assessment indicates that no longer having release at the halfway point of a default sentence for confiscation orders of more than £10 million would result in an increase in the prison population that would be minimal. I think the figure is 20, but it is minimal. What the impact assessment does not tell us is the projected increase in the size of the prison population if the figure were £1 million or £500,000 rather than the £10 million provided for in these two amendments. Indeed, it does not give us the figures for any other amount or what the impact would be on the prison population if early release in this situation were ended altogether.
No doubt the Minister will provide this figure in his reply or subsequently, particularly if a reason for the Government not wanting to see the figure lowered to £1 million or less is the impact this might have on the size of the prison population. I make two points on that issue. First, the Government have told us that their reforms of probation and the probation service will result in a reduction in reoffending, particularly among those serving sentences of 12 months or less, and thus a reduction in the prison population. Will the Minister say if this Government’s anticipated reduction would offset any increase arising from ending automatic release at the halfway point of a default sentence for confiscation orders of £500,000 or more, or £1 million or more?
Secondly, I ask the Minister if he believes that the prospect, with no automatic release at the halfway point, of having to serve up to 14 years in prison for not paying more than £500,000 or more than £1 million ordered by a court under a confiscation order of ill gotten criminal gains secured at someone else’s expense or at the expense of large numbers of people would in fact greatly enhance the likelihood of co-operation being forthcoming to secure the necessary assets. If he believes that, would that not only reduce the number of criminals preferring to serve their prison sentence rather than hand over their ill gotten gains but provide some additional income from which the cost of any resultant increase in the size of the prison population could be paid if that should prove to be the outcome?
Our view is that criminals who do not meet the requirements of a default sentence for not paying the terms of a confiscation order by the due date should not be allowed out of prison early. In these two probing amendments, however, we suggest only the lowering of the threshold to £1 million or £500,000, because we want to find out at this stage why the Government believe that a threshold of £10 million is appropriate for the ending of automatic release at the halfway point of a default sentence.
Lord Taylor of Holbeach
My Lords, as we have already said today, under this Government around £746 million of criminal assets have been seized under POCA, which is more than ever before. Around 60% of confiscation orders for sums up to £500,000 are discharged within six months, but it is clear that we need to do more to ensure that confiscation orders, particularly the higher-value orders, are robustly enforced. That is what lies behind the measure that the amendments seek to address.
A key mechanism in POCA for incentivising prompt payment of confiscation orders is the availability of default prison sentences where somebody fails to pay. It is clear that for lower-value orders default sentences have the desired effect, with nearly 90% of orders under £1,000 being discharged. But at the other end of the spectrum, just over 18% of orders over £1 million are settled in full. There is anecdotal evidence that serious and organised criminals would rather spend a few extra years in prison in the knowledge that they can enjoy the fruits of their crimes when they come out. It is clear that we need to provide further incentives to persuade these hardened offenders to pay up. It is with that in mind that we are legislating. Clause 10 accordingly increases the length of default sentences for higher-value orders. For orders between £500,000 and £1 million, the maximum sentence is increased from five to seven years, while for orders over £1 million the maximum sentence will increase from 10 to 14 years.
In addition to increasing the maximum default sentences for higher-value orders, we have looked again at the early release arrangements. Current provisions allow for automatic release at the halfway point of a default sentence. Early release reinforces the view of certain offenders that a default sentence is worth serving in order to retain criminally acquired assets—I think that the noble Lord, Lord Rosser, made the same assessment when introducing his amendments. Unconditionally releasing offenders at the halfway point of their default sentence seriously impairs the intended deterrent effect of the default sentence, particularly for the highest-value orders. So this clause will also end automatic early release for those serving a default sentence for failing to pay an order valued at over £10 million. The combined effect of these changes will mean that, in such a case, an offender will serve up to 14 years in prison rather than five years, as now. This is a significant increase which will make offenders think long and hard about serving the time rather than paying their confiscation order.
The noble Lord quite rightly asked why we set the threshold for ending early release at £10 million and not, let us say, at £1 million or £500,000, as Amendments 6 and 7 propose, or indeed at any other level. What is the rationale behind the Government’s decision? As I have said, evidence suggests—I have given figures earlier—that the existing default sentences do not have sufficient deterrent effect for the highest-value orders. We have therefore focused the changes made by Clause 10 on the upper end of the scale.
As a responsible Government, and as the noble Lord will know, we are committed to eradicating the deficit which we inherited from the previous Administration. We naturally took into account the potential cost of changes to the default sentencing arrangements. As we have set out in the financial effects section of the Explanatory Notes, the combined cost of the changes made by Clause 10, all other things being equal, is £1.78 million, or 60 prison places, by 2033. Ten of those extra prison places are attributable to the ending of early release for default sentences for confiscation orders of more than £10 million. The cost of these provisions should not be viewed in isolation. Elsewhere in the Bill, the new participation offence will cost some £6.6 million, including some 45 additional prison places.
I was intrigued by the arguments put forward by the noble Lord, Lord Rosser. He seems to have reined in the Opposition’s ambitions, because the proposals put forward by the shadow Home Secretary and shadow Attorney-General as recently as May stated:
“Labour would end early release for criminals serving default sentences who refuse to pay”.
I wonder whether the noble Lord can tell us what the cost of such a proposal would be. If not, I can tell him. Again, if there was no change in offender behaviour, such a policy would require an additional 900 prison places, at a cost of some £25 million per annum by 2033, although the great majority of those costs would kick in by 2020. This of course assumes that the capacity will be available within current prison facilities. However, given the impact of this proposal, it is likely that further facilities will need to be provided, which will result in a considerably higher total cost. It is therefore reasonable to ask the noble Lord where the money would be found to fund the proposals as set down in his amendments.
We have made a judgment. Our view is that the changes made by Clause 10 represent a well judged package. It is our expectation that the increases in default sentences and the ending of early release will lead to a change in offender behaviour. Faced with 14 years in prison, rather than five as now, we believe that an offender with a confiscation order of more than £10 million will not be so ready to serve the time rather than pay up. Fourteen years is a long time in prison.
However, it would be prudent to test that proposition before we go further. That is why the clause contains two order-making powers. The first will enable us to change the structure of default sentences, including by further increasing maximum sentences and introducing minimum sentences. The second delegated power will enable us to lower the £10 million threshold for ending early release. We will keep the changes made by Clause 10 under close review, and if they are having the desired effect then we will not hesitate to exercise these order-making powers.
The noble Lord, Lord Rosser, asked whether the Government had considered alternatives to the £10 million threshold. The answer to that is yes. I do not propose to get into a debate about whether we considered this threshold or that. Suffice it to say that Ministers considered a range of options and came down in favour of the proposition in Clause 10. I can tell the noble Lord that we estimate that the cost of ending early release for orders of £500,000 and over would be approximately 180 prison places, costing an estimated £5 million per annum by 2033. Ending early release for orders worth £1 million and over would lead to an increase in the prison population of approximately 70 places by 2033, costing an estimated £2 million.
The Government have considered this carefully and concluded that it would not be appropriate to lower the threshold for ending automatic early release until it was proven that it resulted in improved payment and was an effective deterrent, and that it was affordable to do so. We therefore believe that the provisions in Clause 10 are the appropriate way forward, while building in flexibility for the future.
The noble Lord, Lord Rosser, asked about the Government’s attitude to the conclusion of the Delegated Powers Committee that it would be inappropriate to introduce minimum default sentences through secondary legislation. We are considering carefully the points made by the committee about this order-making power, and in doing so we will want to take into account the points that the noble Lord made in today’s debate. Accordingly, I cannot take up the noble Lord’s suggestion that I respond to the report today, but I can undertake to reply to the Delegated Powers Committee report in advance of the Bill’s Report stage in the autumn.
In view of that commitment and the fact that I have valued the opportunity to explain the way in which the Government arrived at our judgment to introduce the measures in Clause 10, I hope that the noble Lord will withdraw his amendment.
Lord Rosser
I thank the Minister for his reply and for giving the information about the projected increase in the size of the prison population if the figure were £1 million or £500,000, and indeed what the increase would be if there were no threshold figure at all.
If the Minister thinks there has been a change in our policy, I shall put his mind at rest. I shall requote to him what I said in my contribution: our view is that criminals who do not meet the requirements of the default sentence for not paying the terms of a confiscation order by the due date should not be allowed out of prison early. That is our approach. I said it in my contribution. I also made it clear that our two amendments are probing amendments to find out why the Government believe that the threshold of £10 million is appropriate.
We shall consider what the Minister has said, but I think that with regard to the £1 million threshold he said that the figure was 70 additional places at a cost of £2 million; I think he said that for the £500,000 threshold the figure was 180 additional places at a cost of £5 million; and for no threshold the figure was 900 prison places at, I think he said, the cost of £25 million. I just want to ensure that I have understood correctly what he said.
Lord Taylor of Holbeach
I would like to reassure the noble Lord. I emphasise that I said that 10 of these extra places would be attributable to the ending of early release from default sentences for confiscation orders over £10 million. I actually said that as part of my presentation to the noble Lord.
Lord Rosser
But I think I am right in saying that the impact assessment assumes no change in the behaviour of the criminals concerned. I think, and perhaps the Minister will confirm this, that the figures he has given of an increase of, respectively, 70, 180 or 900 places and increased costs as a result also assume no change in criminal behaviour, and therefore no more money coming back in as a result of the ending of automatic release at the halfway point of a default sentence. A lot of people would find that an extremely unlikely assumption on which to base the impact assessment and the Minister’s figures.
However, I will leave it at that. I thank the Minister for the information and for his comment that we will have the Government’s response to the Delegated Powers Committee before Report. I beg leave to withdraw the amendment.
Serious Crime Bill [HL]
Lord Rosser Excerpts(10 years, 5 months ago)
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Lord Elton (Con)
My Lords, I wish I had as many caveats and as much good advice. I stand very briefly, first, to welcome this Bill and to keep my foot in the door in case I can be useful in the later stages; and, secondly, to welcome warmly, as others have done, particularly the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lord Henley, the use of the much neglected Keeling schedule. I can almost hear the stopping of the rotation in the grave of my late noble friend Lord Renton, who campaigned tirelessly for this when I arrived in this House back in the 1970s. It is a useful thing, but has a danger in that it brings one’s notice to particular aspects which might take up time.
I apologise for spending a little time on my pocket computer, looking at the anomalies in the sentencing range for defaulting penalties—I am not a sentencing expert. They seem to range from 18 days per £10,000 in the top of band 1, to half a day per £10,000 at the point where the 50% extra penalty cuts in. That needs looking at.
The next thing that drew my attention, which my noble friend Lord Henley was the first to mention, was the gigantic Home Office engine churning out legislation. I was fascinated to hear that my noble friend Lord Wasserman may have spent many years stoking the engine and that my noble friend Lord Blencathra spent some time driving it. I suffered from it. My noble friend’s estimate was very high and I would agree with it. My other noble friend’s was rather low. I shall look at the record when I get home.
The other thing that needs saying is a word of caution. I understand my noble friend Lord Wasserman’s interest in getting a single coherent control of both security and serious organised crime, but bringing it into central government under the Home Secretary or the Home Office is something we have been very leery of for many generations. ACPO exists because of a fear of having a national police force, and it sounds to me as if this would rapidly grow into something like the FBI or something more sinister from Europe. It would need very careful control and if we are to have it, since it will already have its hand in security, the Select Committee in the other place must have oversight of the whole of its work. However, I would approach this with the greatest caution.
I will make one other reference to my noble friend Lord Blencathra. If we called the crime of FGM child mutilation, it would carry revulsion and also be quite an accurate description of what is done. I will detain your Lordships no longer. I apologise for taking so long.
Lord Rosser (Lab)
My Lords, despite the frequency of Home Office Bills at times appearing to match the frequency of gas and electricity bills, the Minister has shown an enthusiasm for this Bill that has been surpassed, not for the first time, only by the noble Lord, Lord Wasserman. This Bill has a number of separate intended courses of action, rather than a single new theme or policy objective running through its provisions, other than a desire to make serious crime a less attractive proposition for those tempted to go down that road—mainly, though not exclusively, through higher sentences and more offences. It covers the asset recovery process, through amendments to the Proceeds of Crime Act 2002, and increases sentences for attacks on computer systems, through amendments to the Computer Misuse Act 1990.
It moves on to serious, organised and gang-related crime generally, creating a new offence of participation in an organised crime group, and making changes to the law relating to serious crime prevention orders and gang injunctions. It provides for new powers on entering and searching premises for drug-cutting agents, makes changes to the criminal law in respect of protecting children and it makes amendments to the Terrorism Act 2006 to confer or extend extraterritorial jurisdiction relating to the UK courts in respect of the offences of preparation of terrorist acts and training for terrorism.
We have had detailed and highly informative contributions in this debate, which have rightly addressed—and, basically, welcomed—the main provisions of the Bill. The issue, though, is not so much to question the changes it seeks to make, or the outcomes it seeks to achieve, but rather to question whether the Bill always goes far enough or simply restates existing legislation that is not being fully enforced; whether it will always achieve the objectives desired; and whether there could or should have been other issues covered in the Bill—a question that my noble friend Lord Harris of Haringey in particular addressed.
We support doing more to recover the proceeds of crime. Performance in this area has actually got worse under the current Government. The amount collected by the police and the volume of confiscation orders has fallen, yet there are still some £1.5 billion of outstanding orders because assets have been hidden, moved away overseas or reduced by third-party claims. Only 18% of confiscation orders worth more than £1 million are recovered. The National Audit Office report indicated that just 26p of every £100 of profit that a criminal makes is confiscated.
We have been calling on the Government to end early release with regard to default sentences where organised criminals refuse to pay, and to stop loopholes enabling criminals to transfer assets to families. We will want to look carefully at the provisions to see whether they will be effective in confiscating criminal assets. It also appears that over the past five years or so, £200 million-worth of assets have been frozen by the UK courts in response to overseas requests for legal assistance, but that none of that money has been returned to the countries that asked us to seize and freeze those assets. Do the Government accept that that is the case and, if they do, do they think that will help in securing co-operation when we want it from overseas jurisdictions?
In her opening speech, my noble friend Lady Smith of Basildon indicated our support for the measures in Part 5 on the offence of child cruelty and conduct likely to cause psychological suffering or injury, as well as physical harm; on the new offence of possession of paedophile manuals; and on extending the extraterritorial reach of offences under the Female Genital Mutilation Act 2003. However, there has been a drop in Child Exploitation and Online Protection Centre arrests and in the number of child abusers being caught. Child cruelty conviction rates have fallen. In 2009, there were just over 700 convictions—about 720—but last year it fell to just above 550. Why do the Government believe that these developments have happened, and what measures do they propose to address the situation?
Violent crime has also risen while the number of prosecuted criminals has gone down. Reports of rape and domestic violence, like those of child abuse, are up, but convictions are not matching those rising reports. What is going up is the cost of some police and crime commissioners. The Northamptonshire commissioner, for example, now employs 34 staff at a cost of £1.4 million. That is at a time when the proportion of adults reporting seeing a police officer on foot patrol in the local area at least once a week has declined.
The Bill creates new offences and increases maximum sentences for attacks on computer systems and cyberattacks. These are crimes that can have serious consequences for the economy of the nation, of individual companies or of groups of companies, as well as for our national security. Such crimes are planned, premeditated, probably sustained and carried out over a period, and the perpetrators know that they are hitting large numbers of people, including the most vulnerable in society. They should be dealt with severely. We should also be tough on those who through computer crime seek to trick and defraud large numbers of people who end up losing considerable amounts of their hard-earned money and savings.
However, the issue is not simply one of the level of sentences and breadth of offences provided for in the Bill. They may well be a deterrent—although, interestingly, the Government’s impact assessment says that there is no evidence that cybercriminals will be deterred by a longer sentence. The biggest deterrent, of course, is the likelihood of being caught.
Fraud and computer crime has been rising. It is a 21st century crime. It does not hit the headlines in the way, for example, that gun and knife crime or violent assaults do, but those who are victims of computer crime and fraud can also suffer devastating consequences. In some cases, it can have a serious effect on their health and, in extreme cases, even lead to death—as the Minister said in his opening speech. It does not hit the headlines because some feel almost ashamed of having to admit allowing themselves to be fooled—and perhaps because some of our major companies, including financial institutions, would not regard it as helpful if the full extent of the problem were widely known. It does not hit the headlines because there is no immediate victim in the way that there is in the case of gun and knife crime or violent assault, particularly when that is on a vulnerable person. Yet it is an area of criminal activity that is expanding fast and becoming of increasing concern, as reflected by the measures proposed in the Bill.
I hope that when he responds, the Minister will be able to say what the Government are doing to provide the necessary resources to fight this kind of crime at all levels. Police forces have made cuts; the temptation must be to make those cuts in areas that will have the least impact as far as adverse headlines are concerned. Have police forces around the country increased or decreased the number of officers engaged full-time in working to detect and prevent computer crime and the fraud associated with it? If the numbers have increased at a time of cuts in front-line policing, has that been in proportion to the increase in the volume of such crime?
On the national and international scene, this is an area in which the National Crime Agency and the City of London fraud unit are involved. Have their resources been increased and, if so, by how much? Are we still in a situation where the prospects of bringing the perpetrators of such crimes to justice are less than those of being able to disrupt the fraud or scam that is occurring, but without being able to call the key perpetrators to account?
The Bill does not offer a coherent government plan for tackling online fraud and economic crime. Recorded offences of fraud have increased by a quarter over the past year but prosecutions and convictions have gone down while business crime, which surveys indicate is going up, is not counted in official figures despite online crime exploding. I hope that the Minister will be able to give some assurance on these issues because, important though it is that sentences should fit the crime, it is equally important that the required resources are there to keep such online fraud and economic crime in check and not allow it to become a crime with, all too often, apparently easy and secure pickings for those who engage in it.
As my friend Lady Smith of Basildon has already said, we support further action against those aiding and abetting criminals, subject to ensuring that innocent parties are not sucked in as well. We also support the proposed amendment to the Terrorism Act, although we question whether the Home Office is doing enough within communities to deter young people from acting on the words of those who encourage them to go to Syria.
This is not one of those Bills where major battle lines over principles have to be set out at Second Reading. However, there are details about the effectiveness and potential consequences of at least some of the Government’s proposals which will need to be addressed in Committee, as will the extent to which the Government are actually providing the necessary resources to deter or bring to justice the perpetrators of some of the serious offences set out not only in the Bill but in existing legislation.
Licensing Act 2003 (FIFA World Cup Licensing Hours) Order 2014
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Lord Addington (LD)
My Lords, briefly, this order that we extend licensing hours is an appropriate response to the celebration of a major national occasion. However, I would like to ask the Government a couple of other questions. The unfortunate fact is that things such as domestic abuse tend to go up when alcohol is consumed around sporting events. I was recently made aware of the White Ribbon Campaign, which tries to deal with other sporting groups, making sure that they are aware that this goes on and is unacceptable.
Will the Government be doing something to make sure that people such as, for instance, the football authorities—those who profit from this—accept that this type of behaviour is as unacceptable after the event as anything that would go on at the event, effectively making people aware that if you have had a few drinks and a great night out, you should not take out any frustrations on the person at home when you get back? It would be a good idea if that responsibility was passed on to all those who profit from this. Most people do not indulge in this; it is not a compulsory element, so a ban is not appropriate. Those who profit from this should be making sure that those who might use this as cover for anti-social behaviour, particularly in the privacy of a home, are aware that it is not acceptable.
I hope that the Government have a reasonably positive attitude towards this, if only as something that will develop out of this in the future. We must be aware that celebrations can mask anti-social activity.
Lord Rosser (Lab)
My Lords, I thank the Minister for explaining the purpose and intent of the order, which we shall not be opposing as we accept that there should be arrangements for extending licensing hours during the World Cup. However, the order raises as many questions as it answers, although in one area it is very explicit. In paragraph 37 of the impact assessment, it says:
“While England are certain to be playing in the matches in the first period, there is a high probability that they will not be playing in the later matches”.
It is good to know what the Government think of England’s prospects.
As the Minister has said, Section 172 of the Licensing Act 2003 confers on the Secretary of State the power to make a national licensing hours order if she considers that a period—I gather it is known as the “celebration period”—marks an occasion of exceptional international, national or local significance. The specified period, which is part or all of the celebration period, cannot exceed four days but means that premises’ licences and club premises’ certifications have effect as if times specified in the order were included in the opening hours authorised by the licence or certificate. The alternative option available would be to use the existing system of temporary event notices, which means that decisions would be made locally and specific conditions could be attached to the granting of any notices to reflect the local situation, or an extension could be refused for specific premises about which there were concerns.
The Government have come to the conclusion that England’s participation in the World Cup this summer, however brief they think it might be, is an occasion of exceptional national significance which justifies the extension of licensing hours to enable fans to watch the matches at pubs and other licensed premises across the country. The other occasions on which the Section 172 power was used were the royal wedding in 2011 and the Queen’s Diamond Jubilee in 2012. The football World Cup is now on a par with those two occasions, as the power has never before been used for a sports tournament. It would be interesting to know whether the Government will also consider the likely participation of the England women’s football team in the World Cup—which I think will be held in Canada next year—as a similar occasion of exceptional national significance.
Lord Taylor of Holbeach
My Lords, I welcome the debate on this order. I am not entirely sure where the noble Lord, Lord Rosser, stands on the issue before us—
Lord Rosser
I thought that I made that clear when I started. I said that we were not opposing it as we accepted that there was a need to provide arrangements for extended hours during the World Cup. What I am raising with the Government is how views were sought from a number of stakeholders, to which I have referred. They covered the police and the Mayor’s office, as well as local government and residents, who were not saying that there should not be an extension but asked why we could not stick with the current procedure of temporary event notices, which allow local circumstances to be taken into account, rather than doing it on a blanket basis, which, unless the Minister is going to tell me to the contrary, does not allow local circumstances to be taken into account.
Lord Taylor of Holbeach
It was that point of which I was uncertain—as to whether the Opposition were in favour of doing it through this measure. I am still unsure. I understand exactly what he has said—
Lord Rosser
I am asking the Minister to explain in rather more detail why, in the face of those points made by the organisations to which I referred, the Government are saying that the best approach is the national blanket decision rather than a continuation of temporary event orders. We are not opposing this order as we recognise that there has to be a facility for extension of licensing hours. But we are curious as to why the Government are so keen to go down the road of the national blanket order, which does not allow local circumstances to be taken into account, bearing in mind the nature of the comments that came back from the police and the Mayor’s office, residents’ organisations and the Local Government Association.
Lord Taylor of Holbeach
Of course, the overwhelming number of comments were in favour of using this measure. I accept what the noble Lord says. He is quite right to challenge the Government on why they have made this decision. I think that England’s participation in the World Cup is an occasion that many people will want to enjoy in an atmosphere of clubs or bars where they will be enjoying themselves with other people. We consider it appropriate that the World Cup is seen as an event of exceptional national significance for the purposes of Section 172 of the Licensing Act.
Before I go on to the points raised by the noble Lord, Lord Rosser, I would like to respond to my noble friend Lord Addington, who mentioned the very serious consideration of domestic violence. It is interesting that we have a domestic violence debate tomorrow, which I am also involved in. In truth, there is very little recent evidence that shows that incidents of domestic violence increase during sporting events, although in the past there have been occasions when such phenomena have been reported. Women’s Aid will run a campaign to raise awareness about domestic violence during the period of the World Cup, and that campaign is supported by the Home Office.
The noble Lord, Lord Rosser, asked whether we are going to extend the blanket provision to matches when England is not playing, such as the World Cup final. It is acknowledged that an awful lot of people will probably watch those games, but the power under which this order is being made allows for the relaxation for events of exceptional national significance and we consider that this would not meet the criteria if England was not playing in the final.
On that basis, the noble Lord has clearly read with interest the impact assessment. I am pleased that he is impressed by the intellectual rigour with which the Government draw up those assessments. He is quite right. It says that England are certain to play in the matches of the first period of the tournament—I think that we can all agree on that—but that there is a high probability that England will not play in later matches. That is a matter of opinion, and I am sure that other noble Lords will have different views on that issue. But the use of Betfair and its interactive website was the basis for that assessment.
Lord Rosser
As I understand it, the Minister has said that a blanket order could not apply to the final if England was not participating in it. Am I not right in saying that Section 172 can be applied to mark occasions of exceptional international significance as well as national significance?
Lord Taylor of Holbeach
The noble Lord is absolutely right, but the Government have not taken the view that that particular definition applies in this instance. We are limiting it to those games in which England is playing.
The noble Lord, Lord Rosser, asked about additional policing costs, crime and disorder and the cost to the taxpayer. We are mindful that late-night drinking can lead to crime and disorder as well as public nuisance but, because these matches will be identified and the situations known, the order is restricted to the sale of alcohol and late-night refreshment in pubs, clubs and anywhere else where alcohol is consumed on the premises. It is not an off-the-premises order.
The noble Lord asked about giving the police extra funding for this. No, this is not an event for which extra funding would be provided. He also asked whether there would be other occasions on which football events would be covered, and mentioned the women’s World Cup. Each occasion is assessed on a case-by-case basis, based on whether they could be considered of significance, alongside other circumstances, such as time, location, and the impact on public safety. Those things are carefully considered before orders such as this one are brought before the House.
The noble Lord asked how it would be possible to plan policing. The police will use their relationship with premises to determine which premises would be extending their licensing hours and will manage risks accordingly. He asked how we squared this proposal with our localism approach. The Government have decided that England’s participation in the World Cup is an exceptional national event. Due to the late kick-off times, which we cannot help, since Brazil is west of here, it is appropriate to relax licensing hours for a modest length of time in relation to these matters. This order provides a temporary change only in licensing hours during World Cup 2014.
Licensing hours have been relaxed before, as I have said. The order provides a temporary change, specifically for England’s matches. Future events and occasions will be considered on a case-by-case basis. This licensing hours order will reduce the burden on businesses, which is why we have chosen this path, when otherwise they would need to use temporary event notices to extend their opening hours. It will reduce the burden on licensing authorities, which would have to process the notices.
Lord Rosser
I am still not clear on the question of additional policing costs. Can the Minister say that the additional policing costs will be less than what the Government described as the benefit to on-trade premises of £1.35 million?
Lord Taylor of Holbeach
My Lords, I cannot say categorically what the actual increase in costs will be and I certainly cannot state categorically the degree to which the order will increase police costs. I think that a far more difficult situation would arise if England were playing, clubs, pubs and bars were not open and there was informal activity on private premises. At least the order allows policing to be planned as it enables the police to know which licensed premises will be open during these events.
Lord Taylor of Holbeach
I certainly understand exactly what my noble friend is saying. As I said, the Home Office is supporting an awareness campaign on this issue. I cannot give him a specific promise that there will be a continuing commitment in this regard. However, we will discuss this issue tomorrow afternoon and I hope that the noble Lord will participate in that debate. I am prepared to write to him about a continuing commitment if that would be helpful in the event that he is not able to attend tomorrow’s debate.
Lord Rosser
I wish to ask the Minister a question following what he said a moment ago—that premises which decide to stay open later under the blanket order will have to advise the police in advance of their decision to do so. I thought the Minister was arguing that the blanket order made it easier for the police to keep control of the situation. However, the letter from the Association of Chief Police Officers says that the advantage of temporary event notices is that they allow police forces,
“to adapt their public order plans to more accurately reflect the probable demand based upon targeted intelligence”.
Does it mean, therefore, that under this blanket order premises which are intending to stay open later within the terms of the order will have to advise the police in advance?
Lord Taylor of Holbeach
No, that is not the case. However, the police will be able to ask whether such places intend to remain open. That is entirely up to them.
Lord Rosser
Can we be clear, therefore, that under the blanket order the police have to ask premises whether they are staying open whereas under the temporary event notice, where people would have to apply, the police would know in advance who would be staying open?
Lord Taylor of Holbeach
If the police consider it is important for them to know that information, they will ask the question. If they do not think it is important to know that, they do not have to ask the question; it is entirely up to them. It is a policing matter, not a question of the licensing arrangements. We are making it clear that the whole point of this measure is to liberalise the licensing hours available to licensed bars and pubs to enable them to have extra licensing hours, if that is what they seek, to enable their customers to watch matches and have a drink at the same time. I think it is quite clear what the arrangements will be. I would have thought that the noble Lord would accept that it is a perfectly sensible and practical arrangement. As I said in my opening speech—
Lord Rosser
The Minister says he hoped that I would accept that this is a perfectly practical arrangement. I have made it clear that there is no argument about the need for a procedure for extended hours. However, the points I am raising are ones the police have raised.
Lord Taylor of Holbeach
I think I have given the answer, have I not? My job is to present the reasons why we have chosen to go ahead with the order. We have done so because we consider that this is an event of national significance. As it is an event of national significance, we have decided that the Licensing Act approach is the right one to take to provide the opportunity for licensed premises to stay open during the matches. We have made it quite clear why we have done that. The job of the police is to maintain order. They are entitled to say that they do not particularly like our approach; that is entirely up to them. However, the Government have made this decision because they think it is in the interests of the public as a whole that they have an opportunity to view the matches while attending licensed premises. I think that is a perfectly reasonable thing to do. The order is conditional on England playing in any particular match. The coalition Government believe that the decision to relax licensing hours for England matches during the World Cup strikes the right balance between recognising the benefits of alcohol when it is enjoyed responsibly and maintaining proper safeguards for the public. On that basis, I hope that these orders are agreed.
Immigration Bill
Lord Rosser Excerpts(10 years, 7 months ago)
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Baroness Hamwee (LD)
My Lords, this is the first amendment in a group also containing Amendment 25 tabled in the name of the noble Baroness, Lady Smith, along with several other amendments in her name. It is clear that there is widespread agreement that the provisions dealing with residential tenancies proposed in the Bill are complicated and risky—complicated in their operation and risky in the scope there may be for discrimination. However, I do not need to re-rehearse our previous debates today.
The Government have been very clear that—I am using a term that I hope will carry less baggage than some—the scheme will be tried out and tested in a single area from October this year, that formal evaluation will be produced, and that decisions on implementation more generally will be taken in the next Parliament on the basis of the evaluation via a negative resolution order. I have used pretty much word for word the language of my noble friend Lord Taylor in Committee on 10 March, which noble Lords can read in Hansard. Because I accept all that he said, I have therefore chosen to build on it.
It will be entirely obvious to the Minister what assurances I am seeking in my amendment: consultation as to the criteria to be applied to assess and evaluate the scheme. I acknowledge that I have of course pre-empted that consultation by reference to an equalities impact assessment. We can all think of a number of criteria, but we can also think of large numbers of organisations and individuals with expertise in the field who could helpfully have an input into the construction of the evaluation programme, and they should have an input. So my amendment proposes that,
“the Secretary of State shall … consult such persons as she considers appropriate”.
That is not a get-out because it is a well understood formula. I should say in parenthesis that I am glad that I have been allowed to say “she” of the Secretary of State and not “they”, which I understand is a new form of drafting that was imposed on me last week. The amendment would then require a report on the proposed criteria to be laid before Parliament, thus, if you like, hedging with precautions in advance. That is what the amendment is about. I hope that the Minister can reassure me that such arrangements as I have included in my amendment or others that are equally as reliable and transparent will be made. My amendment refers to a pilot scheme. I do not use the language of “phasing” or “rolling out” because I do not accept the implication inherent in those terms whereby, after the first application, further operation is unstoppable and that first application is to be in a single area.
I have two major concerns about the amendment of the noble Baroness, Lady Smith. It mentions,
“one or more pilot schemes”.
There could, therefore, be more than one pilot to start with, and we know that in the Commons the proposal similar to that made by those on the noble Baroness’s Benches would apply to a London borough, a local authority and a county in each of England, Scotland and Northern Ireland. Alternatively, it could mean successive pilot schemes, which is rather close to a rollout. I realised this morning that it is ironic that I am more sceptical about this than the Opposition Benches.
My second concern is that the detail of that pilot or pilots would be in secondary legislation because the noble Baroness’s amendments take out all the other clauses dealing with residential tenancies. Therefore, secondary legislation would have to deal with every aspect, every component and—importantly—every exclusion from the scheme. The legislation would have to come to Parliament in the context of a negative resolution order. There would be far less opportunity than we have had in successive stages of primary legislation to scrutinise the detail. In addition—this is a fundamental distinction—we have been able to discuss and arrive at changes, which is not something that one can readily do, if at all, with secondary legislation.
Therefore, a single pilot process—with codes of practice and exclusions, for example, for hostels, refuges and much other accommodation, including student accommodation—is a far less risky route. I am not given to quoting Members of the other House but my honourable friend the Member for Cambridge got it right when he said that if pilots were imposed on more than one area, if they went wrong, they would go wrong in more than one area. I beg to move.
Lord Rosser (Lab)
My Lords, I should like to speak to Amendment 25 and to our other amendments in the group that are consequential.
Before I proceed, the comment that I should like to make to the noble Baroness, Lady Hamwee, is that if, under the terms of our amendment, the Government got it wrong over the pilot, their chances of getting a further extension of their scheme—bearing in mind that we have called for primary legislation if that were the case—would of course be extremely remote. That would be an incentive for a Government who wanted to see their scheme extended to get the pilot right and to get it fair. For that reason, the noble Baroness’s objections to our amendments are, to put it mildly, a bit thin.
This debate relates to the part of the Bill on which we spent the most time in Committee, because many noble Lords had questions about how the provisions would work in practice. However, despite the time spent debating the Government’s proposals, a great many of the questions remained unanswered. We agree with the principle of making it more difficult for illegal migrants to rent property. In Committee, we proposed a new clause seeking to put in place a pilot to be undertaken before the provisions could be put fully into effect.
We have now tabled amendments that would remove the entire chapter and replace it with a power for the Secretary of State to undertake a pilot along the same lines. If the pilot is successful, the Government could then come back to primary legislation to implement it fully. Given the substantial number of concerns that have been raised about the detail of this part of the Bill, and the need to ensure that it works well and receives proper parliamentary scrutiny, this is an eminently reasonable proposition.
A range of organisations have expressed serious concerns about the impact of the proposals on landlords and residential tenancies. The vast majority of landlords—82%—do not support the proposals, according to a survey by the Residential Landlords Association. Giving evidence in the Commons, the chairman of the National Landlords Association said:
“It is going to impose an administrative burden on landlords who are not experts in immigration … The principle of checking identity is not so much the worry as the logistics of how that is done and understanding the documentation”.
In the same evidence session, the policy director of the Residential Landlords Association said that,
“we think that the Bill and its provisions are not workable and will not be effective in achieving the objectives set out”.—[Official Report, Commons, Immigration Bill Committee, 29/10/13; col. 43.]
Of course, one of the key concerns is whether these measures will be workable. The Government have published a draft code of practice for landlords. We asked a number of questions about this in Committee, including: who will be included in the provisions? How will tenants who have never rented out a property know about their obligations in relation to subletting? How will landlords familiarise themselves with, understand and recognise all the potentially relevant documentation?
We also asked questions about enforcement, including: how will it be established that a landlord had acted in breach of their duty? How will the fine be collected? Will provision be made for landlords who repeatedly break the law? Will Home Office staff become overwhelmed as a result of landlords using the telephone notification to the Home Office that they have conformed to the requirements in the Bill as a form of shield?
The Government’s replies on these points were, for the most part, very general and not very helpful. For example, on enforcement, it was stated that the provisions would be enforced,
“as part of the normal business of enforcing immigration law”,—[Official Report, 10/3/14; col. 1653.]
that they would be applied on a “light-touch basis”, and that the Government would be relying on landlords or agents to give evidence that they have complied with the prescribed requirements.
One thing we asked for in the light of these concerns was for the code of practice to receive greater scrutiny, and we are pleased that the Government have listened and require the code to be laid before Parliament and be made by order, but they should have gone further and at least made it subject to the affirmative procedure. We are also pleased by the Government’s commitment that the code will be ready before the first phase of the rollout begins.
A further concern, which we also heard about in Committee from many noble Lords, relates to the impact on vulnerable citizens, including victims of domestic violence, those with chaotic lifestyles, and pregnant women. We know that landlords already avoid renting to groups they perceive as higher risk, and given the difficulty in identifying documents and the potential liability for landlords, it is likely that landlords will want to be on the safe side and ask for a passport in every case, but many vulnerable people do not have a passport.
On this, again, the Minister’s answers were not particularly helpful. He said that the Bill provides,
“discretionary powers for the Secretary of State to authorise a tenant who has no lawful status to rent property”.—[Official Report, 12/3/14; col. 1798.]
How will that work in practice? There is a real danger that people, vulnerable people in particular, will either become homeless or be driven into the hands of unscrupulous landlords.
There is also widespread concern about the potential discriminatory nature of the proposals. These concerns have been expressed by a number of organisations, including Shelter, Liberty and the Catholic Church. We also heard them expressed in Committee. Again, we are pleased that the Government have listened and that the code of practice in relation to discrimination will receive greater scrutiny.
Lord Rosser
“Residential tenancies: pilot
(1) The Secretary of State may by order make one or more pilot schemes under which landlords in a designated area must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status.
(2) An order under subsection (1) may make provision about—
(a) the principles by reference to which the pilot (or pilots) will operate;(b) the circumstances under which a landlord may authorise an adult to occupy premises under the terms of the pilot (or pilots);(c) descriptions of persons to be identified as landlords for the purposes of the pilot (or pilots);(d) descriptions of applicable residential tenancy agreements for the purposes of the pilot (or pilots); (e) descriptions of persons disqualified by their immigration status from occupying premises under the pilot (or pilots);(f) applicable penalties for landlords in contravention of the terms of the pilot (or pilots) and enforcement of such penalties;(g) excuses available to landlords and appeals against penalties; and(h) the publication of codes of practice for landlords.(3) An order under subsection (1) must specify—
(a) the area or areas in respect of which the pilot (or pilots) operates;(b) the day on which the pilot (or pilots) comes into effect; and(c) the period for which the pilot (or pilots) has effect. (4) The Secretary of State must publish, and lay before both Houses of Parliament, a report setting out an evaluation of any pilot (or pilots) ordered under subsection (1).”
Lord Rosser
My Lords, we have a number of amendments in this group but we will not move any of them. In a sentence, although the Government have certainly not moved as far as we would like, we welcome that they have moved closer to our position.
Lord Rosser
I have only one brief comment to make; indeed, the Minister has already touched on it with his comment about the suggestions that have been made, in at least one case, that the affirmative procedure would be more appropriate. I am not quite sure why the Minister is arguing that he thinks that the negative procedure would be equally effective. If the Government believe that the negative procedure is just as effective as the affirmative procedure presumably they see no distinction between the two. Clearly there is a distinction. Clearly Parliament believes that the affirmative procedure is a more effective one, since it requires an affirmative resolution by Parliament in support of the proposition that the Government have made. Can the Minister put forward a more convincing argument than he has as to why they will not accept that it should be by affirmative procedure and why they think it should be by negative procedure?
Lord Taylor of Holbeach
I suppose we could argue about this for quite a long time if we chose to. I laid out consistency with the employers’ regulations, which are very similar in content. As I mentioned in the previous debate, the thing about the negative procedure is that it is open to any Member to bring the subject matter to debate in this House. Parliamentary scrutiny is not overridden. My hope is that it will be possible, by the time we get to this phase, that we will indeed have a situation where the House is well informed with the issues involved, well informed with the evaluation of the scheme, and well informed of the way in which the scheme is intending to work. I believe that at that point government and Parliament will be confident that they can proceed and that proper scrutiny has been provided. One would have to say that this has been very carefully considered by the Government and we have come to the conclusion that the negative procedure is the appropriate form of introducing this statutory instrument.
Lord Rosser
“Recruitment agencies: local workforce
In section 5 of the Employment Agencies Act 1973 (general regulations), after subsection (2) insert—“(2A) The Secretary of State may by order prohibit United Kingdom based agencies, as defined in this section, from including only people not ordinarily resident in the United Kingdom as their clients.””
Lord Rosser (Lab)
My Lords, I am moving again an amendment which we moved in Committee which we consider to be key and ought to be in the Bill. Clauses 43 and 44 deal with the issue of work and would, first, streamline the processes by which an employer can object to or appeal against a civil penalty by requiring employers to raise an objection to the Secretary of State before making an appeal to the civil court. Secondly, it would make it easier to enforce unpaid civil penalty debts in the civil courts.
Immigration is a welcome and important part of our life and our country’s success over the years owes much to the people who have come here from around the world and have helped to make it a better place. However, we are all aware of the fact that immigration can bring with it certain pressures and certain difficulties for our communities. The Bill does not include any of the important work-related measures which we have been calling for, and we tabled a number of amendments for Committee stage as a means of raising these issues. Amendment 53 has the aim of ending the practice of some recruitment agencies excluding local workers.
To state what I hope is obvious, many or most recruitment agencies are a great asset to the communities in which they work, helping employers and potential employees find work, and keeping local economies in particular ticking over. However, there has been a problem with some employment agencies effectively taking on only foreign workers and excluding British people from their books.
That has become more of an issue because, over the past couple of decades there has been a significant growth in agency employment; I understand that the figures show a 500% increase in agency workers between the mid-1980s and 2007. A look at the figures shows that migrants are increasingly overrepresented within agency work, particularly at the lower end, with A8 accession country migrants constituting the largest single group of agency workers. In some sectors—the meat and poultry processing industry, for example—there are examples which have come to light of British workers facing difficulty registering for work with some agencies which exclusively supply migrant workers, generally eastern European nationals.
We have the evidence of the Equality and Human Rights Commission, which conducted a major survey in 2010 and found that one-third of agencies confirmed that they had acted unlawfully in sometimes supplying workers by judging what nationality the processing firm would prefer, or responding to direct requests often based on stereotypes about the perceived dependability of particular nationalities. There has been the example of an organisation advertising cleaning services with a message saying that it has a thorough vetting system for all its cleaners, and then going on to say that they all come from Poland and that several of them have had extensive cleaning experience in the United Kingdom. In 2010, we had the case of a British supermarket supplier accused of discriminating against local workers after insisting that new recruits had to speak fluent Polish. The firm, I believe, was one of Asda’s biggest suppliers—it was not Asda itself—and it maintained that the requirement was necessary to ensure that all employees could understand the same instructions. The condition was included in an e-mail advert sent out on behalf of the firm and dispatched to hundreds of potential applicants on that particular agency’s books. The advert read:
“Immediate factory work available! If you are available or have any friends available, work is starting tomorrow for induction training. Ongoing factory work (meat production) for 4-5 months, shifts are 7am-5pm or 9am-7pm. Transport provided. Applicants must speak Polish”.
The latter sentence would appear to indicate that it was asked for a certain category of potential employee, since I do not know that Polish is spoken very much in this country, apart from among Polish people.
Lord Hunt of Chesterton (Lab)
My Lords, I would like to reinforce that point. In the previous election in Stoke, I found people complaining bitterly that you had to speak Polish and that all the health and safety instructions were in Polish in certain factories. There are other such stories, so it is a serious point.
Lord Rosser
I thank my noble friend for that helpful intervention. The idea that, in core sectors of our economy, recruitment agencies should exclude local workers and make a virtue of being able to offer—this is often the reason it is done—cheaper, more flexible and allegedly more compliant staff than those available locally is surely wrong. It cannot be fair on UK workers who do not have the opportunity to compete for those jobs, and it is certainly not going to help us rebuild our economy.
As I understand it, currently the only way for action to be taken is for an individual to bring about a discrimination case through an employment tribunal or for the Equality and Human Rights Commission to bring a compliance order. That is because recruitment agencies—or, rather, the recruitment agencies concerned; I do not want to suggest that it is all of them—are not legally prevented from acting in this particular way. We need to strengthen the law so that agencies are not able to operate such practices, either formally or informally. If this kind of practice is going to continue, then we need to start enforcing that law properly, with more prosecutions for agencies that flout discrimination laws. That is why we have tabled this amendment again on Report. In replying to this point in Committee, the Minister, on behalf of the Government, acknowledged that,
“there is a problem with a small number of unscrupulous employment agencies that source labour exclusively from overseas, particularly eastern Europe”.—[Official Report, 17/3/14; col. 19.]
I believe the Minister said that he was “sympathetic” to the aims of the amendment. I am not sure that sympathy, although welcome, is really enough because sympathy does not put right what is surely a wrong that ought to be rectified.
Our amendment gives the Secretary of State the power,
“to prohibit United Kingdom based agencies, as defined in this section, from including only people not ordinarily resident in the United Kingdom as their clients”.
It is an order-making power, and the principle that it is seeking to establish is clear. If the Government are sympathetic to the terms of the amendment, it would of course be open to them to set out more of the detail in the order to ensure that it achieves its aims. Alternatively, if the Government accept the principle of our amendment, they could come back with their own amendment at Third Reading if they do not agree with its specific wording. Of course, we had an example of that happening very recently with the Defence Reform Bill, where an amendment was discussed on Report. The Government clearly did not like the wording but they accepted the principle and came back with their own amendment at Third Reading, which was duly carried. So that is a very recent example of the Government saying that they agree with the principle of an amendment, perhaps do not like its wording and agree to come back with their own wording at a later stage in the Bill, in this case Third Reading.
Therefore I say, simply, that there is a problem, and, as I understand it, the Government recognise that. This amendment gives the Government the opportunity to act now to rectify this problem by either accepting this amendment or, if they do not like its wording, by agreeing to come back with their own amendment on Third Reading to address the issue I have raised. I beg to move.
Lord Taylor of Holbeach
My Lords, I am pleased that the noble Lord, Lord Rosser, has brought this back, and it has been very useful to hear from the noble Baroness, Lady O’Neill of Bengarve, about her take on this issue. She raises some of the subtle things at the edge of any blanket restriction that might be made.
I said right at the beginning when we debated this issue in Committee that the Opposition and the Government are not very far apart at all in this area. It is a matter of time and place rather than the detail of the amendment. I think the noble Lord, Lord Rosser, accepts that the amendment may not be quite perfect. I cannot commit to come back on this issue at Third Reading. There is likely to be an announcement very shortly on this whole issue, so it would be more appropriate to wait until that announcement has been made, as it will make clear what the Government’s position is. I do not think that the Opposition or any other noble Lords will find themselves very far from the Government on this issue.
To look at where we are, the Government are committed to protecting the rights of UK workers. We have said that, and as I said in Committee, the Government have already taken tougher action against abuse of the national minimum wage, both as regards its enforcement and by increasing the financial penalty for breaches. We are taking a more robust approach to the employers of illegal workers, including through a doubling of the maximum civil penalty to £20,000, which has now been approved by both Houses.
We are ensuring greater collaboration across Government to increase our “enforcement reach” and the range of sanctions that can be brought to bear against exploitative employment practices. Furthermore, the Government have commissioned a report by the Migration Advisory Committee into the causes of low-skilled migration and its social impacts.
That is why we are trying to look at the bigger picture. The amendment identifies a particular problem—and I acknowledge that it is a problem—but there is a bigger picture: why is so much of migration into this country in low-skilled jobs? We know that the social impacts of this cause concern across wider communities. We are taking action to prevent abuse of our public services and benefits systems by migrants, including those who come from the European Economic Area. As I have said previously, employment levels have risen, since this Government came into office, by 1.3 million, of which 78% is accounted for by UK nationals. However, I recognise there is a problem with a small number of unscrupulous employment agencies that source labour exclusively from overseas, particularly eastern Europe, and subject their workers to exploitative conditions. We have to acknowledge that.
We are sympathetic to the intentions behind this amendment but, as it stands, it would not achieve its aims at all. It will need very careful review because an agency could evade its scope and be in the clear simply by signing up a single UK recruit. That will not address the problem which the noble Lord has brought to the attention of the House. The ordinary residence test is very weak and easy to pass. However, more does need to be done to tackle such unfair recruitment practices, a view which I think noble Lords generally share. Ministers are actively considering how best to protect British workers from this type of discrimination and, as I have said, the House may expect announcements to be made very shortly on this issue. In the light of the points I have made, I hope the noble Lord will agree to withdraw his amendment.
Lord Rosser
I am disappointed by the Minister’s reply. In Committee, he said that,
“more should be done to tackle these types of unfair recruitment practices. Ministers will actively consider how best to protect British workers from this type of discrimination and we will seek to bring forward proposals shortly”.—[Official Report, 17/3/14; col. 19.]
We do not seem to have made any progress at all. The Minister is clearly not prepared to pick up what was inherent in my suggestion: that I would be happy to withdraw my amendment if he gave a commitment to come back with the Government’s own amendment at Third Reading.
Baroness Hamwee
I appreciate that I have not spoken in this debate but colleagues around me are confirming what I heard, which was that the Minister told us—for my part, I rather fear it—that we might hear shortly from the Government. Never in the years I have been in this House have I known “shortly” to be as short as a week or two. I have been listening carefully and I understand the problem, which everyone who has spoken on this has acknowledged. I wonder whether to have come back at this stage or be prepared to come back within a couple of sitting days, as it would be at Third Reading, would do justice to the severity of the problem that has been articulated.
Lord Rosser
Perhaps I may remind the House what I also said, which was that the Minister used the word “shortly” when we discussed it in Committee. This is not the first time that he has said “shortly”. I think that shortly is a rather longer period of time than the noble Baroness has just suggested. The other issue is that the Government have no doubt given much time to considering the provisions in the Immigration Bill as a whole. It is surprising that they do not appear to have given the same priority to the issue addressed by the amendment about the activities and practices of some recruitment agencies which do nothing to enable us to have a reasoned debate on immigration in this country. I think the Minister knows that that is an issue. We need to address today’s problems now and not at some unspecified time in the future, which really is all that the Minister has been able to say. I therefore wish to test the opinion of the House.
Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2014
Lord Rosser Excerpts(10 years, 7 months ago)
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Lord Rosser (Lab)
My Lords, this is a serious issue. The order that the Minister has moved was agreed in the House of Commons yesterday and, as he has said, if it is agreed by this House today it will come into effect tomorrow. I thank him for the letter that he sent to my noble friend Lady Smith of Basildon on 31 March, which set out the case for the proscription of the three groups named by the Minister, and he has of course repeated that case in moving the order today. This is an issue of national security, and we are happy to accept the Government’s assurances on the basis that all three groups seem to have been involved in terrorism at the highest end of seriousness, including some directed at our citizens and allies.
There are, however, two points that I wish to raise about the issue of proscription, though not specifically about the three groups in question; as I indicated, we are happy to accept and agree the order. I am sure that the two issues will not come entirely as a surprise to the Minister. As I understand it from what was said in the Commons yesterday, there are apparently 52 international and 14 Northern Ireland-related terrorist organisations that are already proscribed, and I gather that between 2001 and the end of March last year 32 people have been charged with proscription-related offences as a primary offence in Great Britain and 16 have been convicted, so there are a number of organisations on the list.
I am sure that the Minister will not be too surprised if I say that it appears that one organisation is not yet on the list: Hizb ut-Tahrir, which is of course the one that the Prime Minister said when he was leader of the Opposition that he thought ought to be banned. It is not clear why after all this time that organisation has not been proscribed if apparently, in the Prime Minister’s view, the case was so clear-cut a number of years ago when he announced his personal view of what he would do. I would be grateful if the Minister could throw any light on that, purely in the sense of whether this organisation is likely to be banned or not. What are the Government doing on this at the moment? Have they come to the conclusion that it does not require to be banned, or is it after all these years an issue that they are still considering? They seem to be taking a remarkably long time to come to a conclusion.
The other issue that I would like to raise, and it is the final one that I want to talk about, is the issue of de-proscription. This was raised in the House of Commons yesterday but I want to put a question about it to the Minister. Obviously we have a procedure for, quite rightly, putting organisations that are threats to national security on the list so that action can be taken. I have referred already to the figures that the Minister in the House of Commons gave about the number of organisations currently proscribed. My question about the issue of de-proscription is on the understanding that the only group that has ever been de-proscribed obtained that through judicial review. It is of interest to raise this issue because, according to the independent reviewer of terrorism legislation, the Home Office was at one point considering an annual review of the proscribed list to see which groups still met the criteria.
That independent reviewer suggests—I do not know whether it is true—that there is no current evidence of terrorist involvement, even in this century, for some proscribed organisations. According to the independent reviewer’s website, last summer the Home Office had compiled a list of up to 14 groups that no longer met the criteria for proscription and the independent reviewer has been calling for the annual review of proscribed groups to which I have referred and which it was claimed that the Home Office was at one point considering.
In conclusion, since it appears that the Home Office now wishes to go down a different road for de-proscription for individuals or organisations, why is it not in favour of at least a regular review of the proscribed groups to see if they still meet the criteria that necessitate their being on the proscribed list in the light of an apparent view—whether right or wrong—of the independent reviewer of terrorism legislation that a number of organisations on that list no longer meet the criteria for remaining on it?
Lord Taylor of Holbeach
My Lords, I thank the noble Lord, Lord Rosser, for his support for this order. I will do my best to answer his questions. As he said, there was a lengthy debate yesterday in the House of Commons where my honourable friend James Brokenshire presented this order for approval by that House. The noble Lord asked first about Hizb ut-Tahrir. Hizb ut-Tahrir has been considered by the Home Secretary. The Government have significant concerns about it and we are continuing to monitor its activities very closely. Of course, individuals are still subject to general criminal law. We will seek to ensure that the group and groups like it cannot operate without challenge in public places in this country. We will not tolerate secretive meetings behind closed doors on premises funded by the taxpayer. We will ensure that civic organisations are made aware of this organisation and groups like it, the names under which they operate and the ways in which they go about their business. I can comment no further on that organisation.
As the noble Lord will well know, de-proscription is by application. While we keep a watch—and it is quite proper that we do—on organisations about which we are concerned, it is up to organisations to apply for de-proscription. Under the current regime they can write to the Home Secretary and request that she considers that they should be removed from the list of proscribed organisations, and they should state the grounds under which they should be de-proscribed. The Home Secretary is required to make a decision on that application within 90 days. I hope the noble Lord will understand that there is a proper mechanism for dealing with de-proscription. However, it is not a proactive one. It is one made by application.
Lord Rosser
The noble Lord will accept that if you are not meant to be a member of that organisation at the time you apply it is a bit of risk applying for it to be de-proscribed—by definition you are almost admitting to be associated with the organisation that you are not allowed to be associated with.
Lord Taylor of Holbeach
That is the procedure, my Lords. That is the consideration that the Home Secretary makes. I think the noble Lord will understand that you do not get on the proscribed list without the Government having real concerns about the aims and objectives of the organisation. I ask the noble Lord to accept that assurance.
Lord Rosser
I hope that the Minister would accept that my comments have been prompted to some extent by what the independent reviewer has claimed. I do not know whether that is true or not, but a number of organisations on the list would apparently no longer meet the criteria. I am certainly not raising it in a flippant manner—this is an issue of national security. Frankly, however, if there are organisations there and the independent reviewer is questioning whether they still meet the criteria, the effectiveness of the list is surely a factor of the organisations on it being ones that should be on it.
Lord Taylor of Holbeach
Well, I am satisfied with the arrangements. On the question of incrimination, I can reassure the noble Lord that, in fact, if a person makes an application for a group to be de-proscribed, Section 10 of the Terrorism Act 2000 provides that evidence submitted in relation to de-proscription application is not admissible in proceedings against an individual for an offence under that Act. I hope that reassures the noble Lord to some extent about the self-incrimination process of writing to the Home Secretary to apply for de-proscription.
Finally, proscription is not targeted at any particular faith or social grouping but is based on clear evidence that an organisation is concerned with terrorism. We are satisfied that the three groups about which we have been talking today meet that statutory test and it is appropriate in each case for the Home Secretary to exercise her discretion to proscribe the group. The proscription of ABM, Al Murabitun and AAS-T demonstrates our condemnation of the activities of these groups and our support for the efforts of members of the international community to tackle terrorism. On those grounds, I commend the order to the House.
Immigration Bill
Lord Rosser Excerpts(10 years, 7 months ago)
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Lord Ramsbotham (CB)
I support the amendments in the name of the noble Lord, Lord Judd, and refer to my experience as a member of the advisory panel formed by the Government when they first considered the detention of children, particularly the detention of children who were going to be removed. We advised that it should be handled by a separate returns panel, which has since been established.
During those deliberations, we had several other concerns about a word that the noble Lord used in his address—namely, “safeguarding”. In addition to the safeguarding of children who are involved either in detention or in the removal process, there is a very large problem of unaccompanied minors applying for immigration or asylum who are distributed throughout the United Kingdom in order not to overload the social services immediately adjacent to ports or airports of entry. We felt that there was an urgent need for the handling of children, whenever they appeared in the immigration system, to be looked at particularly from the point of view of safeguarding. I am not aware that that has happened. I urge the Minister to give this his urgent consideration. Many of the things that have been said today arise out of the need to look at the treatment of children overall.
Lord Rosser (Lab)
My Lords, we will listen with interest to the Minister’s response to my noble friend Lord Judd’s amendments, which he put across with the decency and humanity we all associate with him. The government amendments make concessions on a number of issues, which we and others, and the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee, have made during the passage of this Bill through both Houses. The Minister has indicated the purpose of the government amendments, one of which seeks to make clear that all family members will be given prior notice of their liability for removal. Will the Minister confirm the position on the minimum period of prior notice that will be given in that instance?
Clause 1 provides a power for the Secretary of State or an immigration officer to authorise the removal of a person who,
“requires leave to enter or remain in the United Kingdom but does not have it”,
or their family members as well. Subsection (6) provides a power for the Secretary of State to make regulations regarding,
“the removal of family members”.
As we know, the Government’s stance up to now, which continues to be the case, is that the regulations would be made by statutory instrument but that they would be subject to the negative procedure. We remain of the view that the affirmative procedure is justified. We are disappointed that the regulations under what will become Section 10(6) of the Immigration and Asylum Act 1999 will not be subject to the affirmative procedure.
I was going to go on to refer to the comments made by the Delegated Powers and Regulatory Reform Committee in its latest report, which was published yesterday. The report reiterated the committee’s view that the power should be subject to the affirmative procedure. The Minister, probably with a view to seeking to address the concerns expressed by the Delegated Powers and Regulatory Reform Committee, has indicated that the Government will be bringing forward, if I understood him correctly, an amendment at Third Reading. He mentioned that it would address the concern that the committee had over the words “in particular”, which the committee commented on in its report. I assume that the amendment that the Government will put down at Third Reading will seek to address the concern expressed by the committee.
For our part, we want to see what that amendment is before making up our minds about whether we find it acceptable or not. Certainly, our position is that the regulations ought to be subject to the affirmative procedure for the kinds of reasons that were given by the Delegated Powers Committee, but we will see what the Government’s amendment says and whether that addresses the concerns that we too have on that particular issue.
Lord Hylton (CB)
My Lords, I welcome the Government’s amendment as far as it goes and what may be coming at Third Reading. The Government’s amendments bear witness to the good intentions of the noble Lord, Lord Taylor, which he has shown in the numerous letters and briefings that he has sent out as this Bill has moved through the House. However, in Clause 5, the Government seem to be kinder and provide greater protection for children newly arriving in this country compared with children who are already here. That is why I welcome Amendments 5 and 8 in the name of the noble Lord, Lord Judd, because they are very clear and give us the certainty that we need. I hope that your Lordships will accept them.
Lord Ramsbotham
I am very grateful to the noble Baroness. We have “reasonable force” at the moment, but I am concerned that if we left it like that then we would have reasonable force that was unreasonable. I am therefore asking that the work should be done, consideration should be given to this and, if necessary, that it be mentioned in the wording that the reasonableness refers to what has been authorised as being reasonable within the Home Office.
Lord Rosser
My Lords, the noble Lord, Lord Ramsbotham, has spoken with his considerable knowledge of the enforced removal process and of restraint techniques. It is fair to say that his criticism is not confined to what he thinks is going on at the moment but extends to what has gone on under previous Governments as well. I do not think that his comments are geared to a particular Government; I think that they are geared to what has been happening over a period of years.
We are aware of what the noble Lord has proposed about a code of practice, and I have to say that there seem to us to be some fairly strong arguments for seeking to have such a code, in view of some of the terrible difficulties and events that there have been and to which the noble Lord has referred. He has referred today to the redrafting of paragraph 5, as I understand it from the closing words of his speech.
We on these Benches have sympathy with the arguments that he is putting forward, which are clearly addressed to trying to resolve the significant difficulties that have arisen, and may well continue to arise, with the current process and techniques. We very much hope that we will hear a helpful response from the Minister to the quite powerful points that the noble Lord has just made.
Lord Taylor of Holbeach
My Lords, I do not think that there is going to be any marked division in this House on this issue, to the extent that I think we are agreed that whatever is done in our name should be done in a civilised and proper fashion. I am grateful to the noble Lord for bringing this issue to the House’s attention through Amendment 7, but perhaps I might start by repeating what I previously said in Committee. The provision in Schedule 1 to extend the use of force affects only those powers exercised by immigration officers. It does not make any change to the separate statutory powers of detainee custody officers and escorts, who are private contractors, to use reasonable force in the exercise of their particular functions.
As the noble Lord kindly mentioned, last week the Minister for Immigration and Security, my honourable friend James Brokenshire, and I had a very helpful and thoughtful meeting with the noble Lord where we discussed the proposals in his draft codes of practice for enforced removals and where I believe we agreed that there are a number of areas of common ground where the Home Office is making improvements. I think the noble Lord will know that my honourable friend Mr Brokenshire and I share an interest in this matter. He kindly mentioned my trip on a removals flight, which I found extremely interesting. I feel much better informed through having made that journey.
The noble Lord has proposed in the draft code of practice on use of restraint that any use of force must be justifiable, proportionate, accountable, necessary, safe and supportive and must be applied for only the minimum period necessary to achieve the lawful objective. Published enforcement instructions and guidance explain that the use of force must be proportionate, lawful and necessary in the particular circumstances, and also set out that force should be used for the shortest possible period, be the minimum needed, be used only when all other avenues of securing co-operation have been exhausted and should be de-escalated as soon as possible. Whether that use of force was reasonable must be justified by individual officers on a case-by-case basis. I can assure noble Lords that only those immigration officers who are fully trained and accredited may use force. Arrest training is currently provided by the College of Policing, and training on the use of force, including control and restraint techniques, is in line with ACPO standards.
If we were to accept this amendment, although it would maintain the status quo, there are half a dozen coercive powers which sit in the 2004 and 2007 immigration Acts, where there is no specific reference to the use of reasonable force. Although the use of force is currently implied in these arrest and entry powers, it is our intention that this should be set out explicitly in statute to ensure that there is greater transparency. I previously gave noble Lords the example of an immigration officer trying to safely arrest a person for the specific offence of assaulting him or her, under Section 23 of the UK Borders Act 2007, where it is not expressly stated in the legislation that an immigration officer can use reasonable force to restrain that person in doing so. The extension of the power for immigration officers to use reasonable force beyond that contained in the 1971 and 1999 immigration Acts will ensure that existing powers can be operated effectively and are in step with other law enforcement bodies’ powers and that current enforcement practices are not at risk of legal challenge on the grounds that the ability to use force is not explicitly set out in statute.
The noble Lord asked whether the Home Office monitored the restraint techniques used at Colnbrook removal centre in 2004, which led to the tragic death of a 16 year-old. I cannot answer that question at the Dispatch Box but will write to him and copy the letter to other noble Lords who have spoken in this debate.
With the assurance that we in the Home Office very much value the noble Lord’s input in this area, which reinforces our interest in making sure that these jobs are done in a proper fashion, I hope the noble Lord, Lord Ramsbotham, will fell able to withdraw his amendment.
Immigration Bill
Lord Rosser Excerpts(10 years, 8 months ago)
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Lord Rosser (Lab)
My Lords, the amendment in this group to which I wish to speak is Amendment 81AA, which would require independent legal guardians to be appointed to look after the interests of children trafficked into the United Kingdom. The amendment proposes the insertion of a new clause but this is by no means a new issue. A similar amendment was recently voted on and narrowly defeated during the passage of the Children and Families Bill. The Committee will be aware of the tremendous work of the noble Lord, Lord McColl of Dulwich, who has championed this issue for a very long time, and indeed the work of other noble Lords, including the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Royall of Blaisdon. We have been pursing this matter and the shadow Home Secretary has raised it a number of times.
We are returning to the matter again because it still is very much a concern. At least 450 children were identified as possible victims of trafficking in the past year alone. NGOs and police all say that it is most likely that the numbers of people trafficked, including children, are far higher than the national referral mechanism statistics record. A shocking two-thirds of children who are rescued from traffickers go missing again because the system to protect them is not strong enough.
Most of those children come from countries outside the European Union. They are here alone and have no knowledge of the country that they are in. They often speak and understand little English, and do not know who to turn to or how to find help. In the debate on this issue during the Children and Families Bill, noble Lords heard evidence from research commissioned by the Government, which highlighted the desperate need of trafficked children for specialist, independent support. That research, and the report by the Children’s Society and the Refugee Council, entitled, Still at Risk, which was published in September 2013, recommended the provision of “an independent trusted adult” whose,
“role would be to ensure”,
that all child victims are,
“able to understand their rights, ensure that their voice is heard in decisions that affect them and are supported effectively through the different legal processes that they are engaged in”.
Amendment 81AA would provide such a person.
When this was discussed in the Children and Families Bill, the Government argued that there was no need for new independent guardians for trafficked children since there are a number of professionals with responsibility for supporting a child under the Children Act. They pointed instead to the introduction of draft regulations and statutory guidance which they claimed would address all the faults in local authority care, rendering specialist guardians unnecessary. I suggest that that misunderstands the role of the independent legal guardian.
Child victims of trafficking find themselves in a foreign country and to access help they are expected to deal with many different state agencies; that is, local authorities, social workers, police, investigators, immigration officials and so on. When dealing with each organisation, they must engage with a different set of people and must repeat their story again and again, with all its traumatic details. This process is distressing and unhelpful for a child in unfamiliar surroundings. Children can become alienated and distrustful of those trying to help them, which leaves them vulnerable to retrafficking. Local authorities do not always seem to appreciate that young victims of trafficking often maintain links with the person who brought them to the United Kingdom because they speak the same language. A guardian with legal responsibility for the child would understand the dangers.
The role of the legal guardian is an entirely new role that no existing agency currently provides. That person would be a constant for the child in an ever changing world. They would accompany the child as they relate to all the different state agencies and would also have the right to speak on behalf of the child if the child requests it so that the child does not have to keep repeating their painful story if they do not want to.
Noble Lords will be aware that the Government recently published their draft Modern Slavery Bill but that does not provide for an independent guardianship system, so we are raising the matter again here. There is a growing coalition of support behind this idea. Trafficked children should have access to a trusted and independent advocate or guardian who is legally responsible for them and their interests in order to do what we are failing to do all too often at present; that is, to protect children who are the victims of trafficking in human beings from repeated trafficking and repeated abuse. I hope that the Minister will give a sympathetic response to this amendment.
Baroness Hamwee
My Lords, as the noble Lord has said, the issue of guardianship for victims of child trafficking is one that has support right around the House. When it was raised during the Children and Families Bill, I said in reply to the noble Lord, Lord McColl, that when he first raised this some years ago I had not been persuaded. However, particularly through his arguments, I came to be persuaded of the need, in part from the point of view of someone who has practised as a solicitor and needs someone from whom to take instructions. That is one of the functions that a guardian would fulfil. The draft Modern Slavery Bill, which is the subject of pre-legislative scrutiny, has been drawn up from the point of view of the victim and, like the noble Lord, I think that this would fit absolutely in protecting and assisting victims.
I have a couple of comments about the issues raised by my noble friends with regard to children and young people without immigration status. I first want to draw attention to a report published last year by the ESRC Centre on Migration, Policy and Society at the University of Oxford, entitled No Way Out, No Way In about irregular migrant children. Its summary, which is a tiny part of a report that goes on for many pages, states:
“Our estimate regarding the high proportion of irregular migrant children who are either born or have spent most of their childhood in the UK invites a refocus of public understanding of this population”.
The second issue that I would like to mention is the very uncomfortable reporting that we have seen, not so much of the children to whom my noble friend Lady Benjamin drew attention, although some would fit into this category, but of wonderful young people—just the sort of young people we want to have in this country —who reach the age of 18 and are accepted at university and told they cannot go there. They are told that they need to go “home”. I am not saying that they are any more deserving than the other children in question, but I hope that the Government have been embarrassed by the reports because they should be, just as they are about the reports of the children assisted by Kids Company and others of whom we have heard.
When I tried to draft this clause, I really did not know how to do it. It seemed that so much is a matter for the Secretary of State’s discretion. I hope that when the Minister replies, he can assist the Committee with some clarity about what issues are matters of discretion and how that discretion comes to be exercised.
Lord Rosser
Can the Minister clarify whether in the trial that is taking place the advocates to whom he has referred will have the same roles and responsibilities as are set out in my Amendment 81AA for an independent legal guardian?