Nationality and Borders Bill

Lord Rosser Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, I am also very impressed by the moderate contribution from my noble friend Lord Horam on the Australian experience. I have a question, therefore. How do the Australians get round the alleged breach of the refugee convention?

[Lord Rosser (Lab)]

I reiterate what was said a little while ago: this is about asylum, not general immigration policy. There is a considerable difference between the two; that does not always get recognised.

This proposal to offshore asylum claims is inconsistent with the global humanitarian and co-operative principles on which refugee protection is founded. Frankly, if everybody did what we are proposing, there would not be much of the refugee convention left, as I am sure everybody recognises and, in their heart of hearts, knows to be true.

Having made those introductory comments, I will endeavour to be brief. I want to ask one or two questions. The Minister in the Commons said:

“Schedule 3 aims to reduce the draw of the UK by working to make it easier to remove someone to a safe country where their claim will be processed. It amends existing legal frameworks to support our future objective to transfer some asylum claims to a safe third country for processing.”—[Official Report, Commons, Nationality and Borders Bill Committee, 26/10/21; col. 388.]


As I have just indicated, the Minister referred to “some asylum claims” being transferred. Will the Government spell out in their reply what categories or types of asylum claims would be processed in another country, and what categories or types of asylum claims would be processed in this country? In addition, based on claims made over the past three years, what number or percentage of total asylum claims and claimants would be processed in and removed to another country, and what number or percentage of total asylum claims would still be processed in this country? I assume that the Government have figures on that.

Information on the countries we have reached agreement with for offshore processing has been, to say the least, a bit thin on the ground, with Ministers saying to date that they are not prepared to enter into a “running commentary” on the conversations that are taking place. I hope that the Government will be a little more forthcoming today on which specific countries we have reached agreement with, or confidently expect to reach agreement with, and which countries have declined to reach an agreement with us. Also, how many different bilateral negotiations are we currently involved in?

It is unacceptable to be told by the Government that we should agree to a policy and its associated clauses and schedules, which, however repugnant, are meaningless and cannot be implemented unless appropriate agreements are reached with other countries—and then, when asking the Government to give information on whether and what agreements have been concluded, to be told by them that it is none of our business. That is what the Government have been doing to date. We expect better from their response today. However, if the Government are going to continue to play dumb on this issue, perhaps it would be better for them to withdraw Clause 28 and Schedule 3 until such time as they have concluded agreements with other countries, without which the policy cannot be implemented.

The only thing the Government have said is that the model the Home Office intends to proceed with is

“one where individuals would be processed as part of the asylum system of the country that we had an agreement with, rather than people being offshore and processed as part of our asylum system.”

So it is not just offshoring; it is also treating and dealing with people under another country’s asylum system rather than our own. The duty to ensure that the rights of asylum seekers are respected would still fall on the UK; it would be helpful if the Government could confirm that in their response.

Essentially, as has already been said, the UK would be outsourcing its refugee convention obligations, potentially to less wealthy nations. The UNHCR has been highly critical of efforts to offshore asylum processing, noting how

“offshoring of asylum processing often results in the forced transfer of refugees to other countries with inadequate State asylum systems, treatment standards and resources. It can lead to indefinite ‘ware-housing’ of asylum-seekers in isolated places where they are ‘out of sight and out of mind’, exposing them to serious harm. It may also de-humanise asylum-seekers.”

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[Baroness Williams of Trafford (Con)]

As I have just said, I will not go any further than my honourable friend did in the House of Common, save to say that people who—

[Lord Rosser (Lab)]

I understand that the Minister may be unable to respond immediately to the extremely valid question the right reverend Prelate has asked. Presumably, however, the Government as a whole know the answer to his question. Why does the Minister not agree to write to us and tell us what those answers are?

[Baroness Williams of Trafford (Con)]

I have said I will write, but to be more explicit than my honourable friend was in the Commons might risk exploitation on routes taken by children. Therefore, this is as far as I will go today. I will lay out the various safe and legal routes through which children can come to this country and reiterate what my honourable friend said in the House of Commons.

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[Lord Paddick (LD)]

My Lords, taking up what the noble Lord, Lord Hodgson of Astley Abbotts, just said, my lay and naive understanding of international conventions, such as the refugee convention, is that processes of clarifying or simplifying should involve international co-operation and coming to a global agreement over what those interpretations, clarifications and simplifications are.

Amnesty and Migrant Voice put it differently. They say:

“Clauses 29 to 38 constitute an attempt by the Home Office via legislation to unilaterally re-write the UK’s international refugee law obligations and, in doing so, reverse the decisions of the UK’s highest courts”.


As I have said before in this Committee, international conventions, as far as I am concerned, serve no purpose unless the signatories abide by a common understanding of what the convention means. Any deviation from the settled and accepted interpretation of an international convention must be agreed universally, not unilaterally, as these clauses attempt to do. Any attempt by the Bill effectively to rewrite what it means could result in the UK breaching its international obligations and we believe that none of these clauses should stand part of the Bill.

[Lord Rosser (Lab)]

As has been said, this part of the Bill provides for “interpretation” of the refugee convention. It includes some entirely new provisions and replicates or amends some existing provisions.

On existing provisions, this part of the Bill repeals the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. These regulations transposed a key EU directive on standards for asylum systems, the qualification directive, into UK law. The Bill repeals the regulations and puts versions of the provisions into primary legislation instead.

The UNHCR noted with concern the Government’s approach to interpreting the refugee convention. I will read an extract from its legal observations on the Bill in full. It said:

“We note with concern the Government’s approach to interpreting the Refugee Convention. Any treaty must be ‘interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ In the case of the Refugee Convention, as the UK Supreme Court has noted on more than one occasion, ‘There is no doubt that the Convention should be given a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble.’ In addition, the Vienna Convention specified a range of sources that ‘shall be taken into account’ in interpreting a treaty; these all reflect the agreement of the parties, and include other agreements and instruments from the time the treaty was concluded, as well subsequent agreements, State practice and international law. In other words, States cannot, under international law, unilaterally announce their own interpretation of the terms of the agreements they have made with other States. This, too, has been repeatedly recognised by the House of Lords and the Supreme Court of the UK.”


I do not want to repeat what has already been said, but I just ask: do the Government agree with that extract from the UNHCR’s legal observations on the Bill? If they do agree with it, do they believe that they are still abiding by it?

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

My Lords, I am grateful to all noble Lords who have taken part in this debate.

The starting point is that we are no longer members of the European Union and, by extension, the Common European Asylum System. In response to the point made by the noble Baroness, Lady Hamwee, these provisions are not a direct response to the case of AH (Algeria). They are about having an opportunity to define clearly and unscramble refugee convention terms following our exit from the EU. It is right that, at this time of legal change, we take the opportunity to reassess the operation of our asylum system and reconsider our approach not only to fundamental policies but to processes, so that we can create a clearer and more accessible system.

The fact is that the development of the asylum system through international conventions, European law, domestic legislation, Immigration Rules and case law has created a complex legal web that can be difficult to understand and apply; that goes for claimants, decision-makers and the courts. I do not propose to use props—I understand that that is not permitted—but, for my own assistance on a later group, I brought a book called, rather laughingly, The Immigration Law Handbook. We consider it a desirable law reform to define clearly key elements of the refugee convention in UK domestic law. In response to my noble friend Lord Hodgson of Astley Abbotts, that is exactly what we are doing. We want to make the position clearer for everyone, including decision-makers and the courts.

A lot has been said that touches on the same point but, with great respect, the noble Baroness, Lady Chakrabarti, perhaps put it most forcefully. She used a number of metaphors. Let me respond to them. This is not about tripping anybody up. It is not a sleight of hand; it is difficult to do one of those on the Floor of your Lordships’ House. This is about bringing clear definitions before Parliament and having them all in one place. The central point is this: there is nothing wrong—indeed, I suggest that there is everything right—with the UK, through this Parliament, interpreting its obligations under the refugee convention. That is entirely lawful. I use “lawful” in both its narrow and wide senses. It is lawful in the sense that it is in accordance with the law; it is also lawful in the broader sense of being in accordance with the political or constitutional principle that we call the rule of law. Further, it is in accordance with the Vienna convention. Everything we are doing complies fully with all our international obligations, including the refugee convention and the European Convention on Human Rights. I will come back to the question that the noble Baroness asked me in that regard a little later.

With respect to the noble Baroness, Lady Hamwee, it is not perverse to use domestic legislation to give effect to and interpret international treaties. I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of appeasing the far right; nor am I in the business of deleting obligations under international law. Many of the definitions, which repay careful reading, are very similar to those already used in the UK—for example, those contained in the 2004 qualification directive, which was transposed into UK law via the 2006 regulations.

I am grateful to the noble Lord, Lord Alton, for his kind words. I assure him that I of course give proper consideration to international reputational impacts, but surely there can be no adverse impact by complying with international law and interpreting treaties in accordance with the Vienna convention.

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[Lord Wolfson of Tredegar (Con)]

Respectfully, what I said earlier is that it is not the arbiter of the interpretation of the convention. I do not think that is inconsistent with the point the noble and learned Lord just made.

I was proposing to sit down, after suggesting to the Committee that we should keep these various clauses in the Bill.

[Lord Rosser (Lab)]

Before the noble Lord sits down, I was wondering whether he would explain some of the changes that are being made or cover them in a subsequent letter. As I understand it, Clause 33 replaces Regulation 4 in the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, which is repealed by Clause 29. The wording is largely the same but, as I understand it—and I may be wrong—the existing regulations reference

“protection from persecution or serious harm”,

whereas Clause 33 references only “protection from persecution”. Why has that change to the language been made and what will its practical effects be?

There are changes of language in other areas, such as from a “may” to a “must” in Clause 34. What problem is that intended to solve? Is it not the Government’s intention to explain the reasons for the changes they have made where they have made them?

[Lord Wolfson of Tredegar (Con)]

The “may” and “must” point, to which the noble Lord referred, will come up in a later group because, from memory, there is a specific amendment on it. I was proposing to deal with that when I respond to that amendment. I think we are going to come to the persecution and serious harm point later but, if I am wrong, I will write to the noble Lord and explain it. However, we are coming to “may” and “must” on a later group.

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[Lord Paddick (LD)]

My Lords, I could simply repeat what I said at the conclusion of the last group: the UK should not engage in the unilateral reinterpretation of the refugee convention—not that we are rewriting it, but we are reinterpreting it—but I shall go into a little more detail.

The JCHR, supported by Amnesty and Migrant Voice, believes that the standard of proof as to whether an asylum seeker has a well-founded fear should remain as “reasonable likelihood”. Amnesty makes the additional point that, as well as raising the standard, Clause 31 makes the decision more complex and the Home Office is getting it wrong too many times already.

We support Amendments 103 and 104 but we also agree with the noble Baroness, Lady Chakrabarti, that Clause 31 should not stand part of the Bill. Amendment 105, to which I have added my name, attempts to bring the definition of “particular social group” into line with international standards and UK case law. Again, based on the principle that the Bill should not be unilaterally reinterpreting the refugee convention, as I said in the previous group, I agree with the noble Baroness, Lady Chakrabarti, that Clause 32 should not stand part of the Bill.

Amendment 111 seeks to prevent the definition of “particularly serious crime” from being reduced to 12 months’ imprisonment. As my noble friend Lady Ludford said, bearing in mind that the Bill attempts to set the maximum penalty for entering the UK without authority at four years’ imprisonment, the two changes could potentially exclude all asylum seekers who do not enter through resettlement schemes. As before, we support the assertion of the noble Baroness, Lady Chakrabarti, that Clause 37 should not stand part of the Bill.

[Lord Rosser (Lab)]

My Lords, I will be brief. We support the intentions of the amendments. I thank my noble friends Lord Dubs, Lady Lister of Burtersett and Lady Chakrabarti, who have been leading on these amendments.

I found it interesting to hear from my noble friend Lady Lister that there was no pre-legislative consultation on the issues covered by Amendment 105. Normally if we want changes in the law, we are told that such things have to go through a lengthy and elaborate process, but these seem to have appeared with a certain degree of rapidity.

I really only want to ask the Government a couple of questions. First, in each of the three cases—that is, Clauses 31, 32 and 37—what is the problem that the Government claim to be fixing? What is it, particularly in relation to Clause 31, about the current standard of proof that they believe is failing?

Secondly, could the Government tell us where the pressure has come from to make these changes in the law? Clearly this is not simplification; it is changing the law, so let us not beat around the bush on that. Where has the pressure come from? Has it been intense? From what sources has it come? Who, or what organisation, has been after achieving these particular changes in the law? I do not recall—though I may be wrong—having heard people marching through the streets demanding these changes, which makes one wonder if some requests for change were made at a political fundraising dinner where no one else knew what was going on.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I set out why we think this interpretation is correct. I am certainly not saying that we are using this interpretation because it is the EU one; I was referring to the EU to make the point that, with respect, it is very difficult to challenge this as somehow an unfair, unworkable or inapt interpretation when it is actually reflected in the EU jurisprudence. I absolutely take, with respect, the noble Baroness’s comments about the importance of the equality impact assessment for the policies being taken forward through the Bill. The public sector equality duty is not a one-off duty; it is ongoing, and I want to provide reassurance now that we will be monitoring equality impacts as we put the Bill into operation and as we evaluate its measures and, indeed, those in the wider new plan for immigration.

I assure the right reverend Prelate the Bishop of Gloucester that we are well aware of the particular issues facing women and survivors of gender-based persecution and, indeed, the asylum system is sensitive to them. The interview guidance contains clear instructions to interviewers in this area. We seek to offer a safe and supportive environment for individuals to establish their claims. Despite references to the decision of this House in its judicial capacity, in Fornah, those comments were obiter. I underline that there is no authoritative definition in case law of what is a “particular social group”, and that is why it is absolutely right for this Parliament to define it in this clause.

Clause 37 amends the definition of a “particularly serious crime” from one which is punished by imprisonment of two years or more to one which is punished by imprisonment of 12 months or more. To be clear, imprisonment means an immediate custodial sentence—I am not sure that any noble Lord made that point, but it is important. Indeed, it is why I brought the handbook: if you receive a suspended sentence, you are not caught by its provisions—going back to the underlying legislation. Furthermore, not only does it have to be an immediate custodial sentence of 12 months or more but the second limb has to apply—namely, whether the individual is a danger to the community—and that is rebuttable.

We cannot accept Amendment 111 because it would potentially allow dangerous foreign national offenders to remain here, putting the public at risk. If somebody has been sentenced to a year or more in prison, we should not enable them to second guess the verdict of the jury or the decision of the court by allowing them to bring into play again whether they were such an offender. We seek to allow only the second bit of it to be rebuttable; namely, whether they pose the relevant danger.

I think I have answered all the questions that have been asked. On the last point put by the noble Lord, Lord Rosser, at the heart of this lies not some dinner party conversation but a lack of clarity in the current case law and standards, which make it harder for decision-makers to make accurate and efficient decisions; that is it.

[Lord Rosser (Lab)]

That may be the case, but all I asked of the Minister was to tell the Committee who has been making representations for these changes.

[Lord Wolfson of Tredegar (Con)]

I have not been here as long as the noble Lord, Lord Rosser, but, with respect, I do not think it fair to ask me that question as I stand here. The Government receive representations on this issue all the time. One might say that we receive representations from millions and millions of people who voted for this Government at the last election when immigration reform was full square in our manifesto. I say with great respect to noble Lord, Lord Rosser, that we are having a very interesting debate on some important legal points. If he wants to make political points, I am happy to respond in a political context.

[Lord Rosser (Lab)]

Since when has it been making a political point to ask where the pressure has come from to make these changes? Since when has that been a political point?

[Lord Wolfson of Tredegar (Con)]

The pressure has come from the people of the United Kingdom, who elected this Government with an overwhelming majority.

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[Lord Paddick (LD)]

I will very briefly address something that the noble Baroness, Lady Jones of Moulsecoomb, said about people arriving here directly by aeroplane. As we will see when we get on to the group substituting “arrives in” for “enters”, even if someone came directly by aeroplane, they would not be legally arriving in the United Kingdom. This clause is central to many of the provisions contained in the rest of the Bill. I am extremely grateful to the noble and learned Lord, Lord Etherton, for his important, detailed and necessary exposition of his reasoning. Despite how long it took, it was absolutely essential.

Clause 36 seeks to redefine and undermine Article 31 of the refugee convention in UK law as a basis for penalties and prosecutions. As we discussed in previous groups, there is an accepted and settled interpretation of Article 31. As Amendments 106 and 107 seek to establish, passing through another country in order to get to the UK is not failing to enter the UK directly or without delay. This should, therefore, not allow the UK to impose penalties or treat asylum seekers less favourably as a result.

Amendment 108 highlights the particular difficulties some asylum seekers could face on account of their protected characteristics. Again, however, I agree with the noble Baroness, Lady Chakrabarti: there should be no reinterpretation of Article 31, no group 1 and group 2 refugees, and no four-year imprisonment because people had no choice but to travel through other countries to get to the UK, whether the UK considers those third countries safe or not.

Clause 36 is the sand upon which this Bill is built, and it needs to be washed away.

[Lord Rosser (Lab)]

Article 31 of the convention exempts refugees “coming directly from” a country of persecution from being punished on account of their illegal presence in a state. Clause 36 of this Bill is the Government’s attempt to reinterpret what Article 31 means by “coming directly from”, and they are doing it to tighten up the rules to suit their policy that all asylum seekers should claim asylum in the first safe country they reach. The clause provides:

“A refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.”


This is a very broad interpretation which would cover anyone who travels through, or briefly stops in, any safe country on the way to the UK. Frankly, this is in opposition to the established understanding of the convention and, indeed, UK case law. This goes against established interpretations of Article 31 made, as has been said, in the case of Adimi and others. This case sets out that stopping somewhere must be understood as referring to something more than a transitory stop en route to the country of intended sanctuary.

We support the amendments in this group and the opposition to Clause 36 standing part of the Bill. Clause 36 is a supportive measure for Clause 11, being about differential treatment of refugees, which we have discussed at some length. This clause underpins the Government’s plans to base our treatment of refugees on their means of travel, rather than on their need and the realities of the violence or horror they have fled. It is on that basis that we oppose this clause.

If we interpret the convention, which is what we are now being asked to do, in such a way that it is unrecognisable to our international partners and our own courts, at what point can we still be considered to be complying with the convention? We are not opposed to arrangements for the safe return of refugees to another state where they have legitimately spent time and started an asylum application. There are established routes for doing this, as provided for under the Dublin III regulations, of which we ceased to be a part when we left the EU. That is not what this clause provides for, as a number of other noble Lords have made clear in their contributions.

On the basis that this clause unilaterally attempts to redraw what the convention means by stopping in a safe country, I ask the Government to think again, without any great hope of getting a favourable response.

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The noble Baroness, Lady Kennedy of The Shaws, seeks emergency visa provision in light of her work with those fleeing Afghanistan, and we support her Amendment 119A, which I believe would also cover the circumstances set out by the noble Lord, Lord Alton of Liverpool, allowing members of groups affected by the crime of genocide to apply for asylum at British overseas missions. We support all the amendments in this group, which are designed to balance the onslaught against allowing refugees to settle in the UK, which most of this Bill represents.

[Lord Rosser (Lab)]

My Lords, our Amendment 119E, seeks to put a global resettlement scheme on a statutory footing. In that sense, it is very similar to the new Dubs scheme, if I can call it that, for unaccompanied children. I also speak to Amendment 116, which was tabled by the noble Lord, Lord Kirkhope of Harrogate.

The Government’s stated intention through this Bill is to prevent people risking their lives taking dangerous journeys to the UK, but instead of talking about differential treatment, inadmissible claims, pushbacks, offshoring, reinterpreting the convention and other measures, we should be talking about safe and legal routes. If a person fleeing conflict, torture and persecution has a safe route by which to get here, they will take it. If they do not, they will take other, dangerous routes. Suggesting that other measures have or may have any deterrent effect is frankly not an answer when there is no international evidence, and the Home Office has recognised that asylum seekers often have no choice in how they travel and face exploitation by organised crime groups. If the Government want people to travel here by safe, alternative routes and break the business model of the people smugglers, their efforts need to be focused on providing those routes, which the three amendments I refer to do.

I will concentrate the rest of my remarks, which will be brief, on resettlement schemes. The argument for the Dubs scheme has been made before and was made very powerfully again tonight by my noble friend Lord Dubs. Initially, the Dubs scheme, passed into law by a Conservative Government, was envisaged to take 3,000 unaccompanied children who had fled unimaginable horrors and were travelling or in refugee camps on their own. It has been said tonight that, in reality, the scheme was capped at 480 children, and fewer children were actually resettled before the scheme was closed down. Where is the Government’s commitment to taking unaccompanied children who are in desperate need of safety? Does the Minister accept that, without this route, some children will have turned, and will continue to turn, to people smugglers instead?

Our earlier Amendment 114, Amendment 116 tabled by the noble Lord, Lord Kirkhope of Harrogate, and my Amendment 119E all deal with a global resettlement scheme. Amendment 119E seeks to put the UK resettlement scheme on a statutory footing and would require the Secretary of State to report annually to Parliament on the operation of the scheme and the number of people resettled under it. For now, it does not include a target, unlike Amendment 116. As the Opposition, we have raised concerns that the 5,000 people due to be resettled under the Afghan resettlement scheme may not be enough of a commitment in response to that crisis.

So there are questions about how a target would be designed, but the aim is the same as Amendment 116. It is, first, to create an active global resettlement scheme that can respond flexibly and at speed to needs, as they emerge; and, secondly, to ensure some kind of mechanism to hold the Government to account. This is to ensure the scheme is actually resettling people at the rates and numbers expected and is not simply announced in a press release then left to lie dormant or underperform.

Announcing the UK resettlement scheme, which was launched after the closure of the Syrian scheme, the then Home Secretary confirmed that

“the UK plans to resettle in the region of 5,000 of the world’s most vulnerable refugees in the first year of the new scheme”.

Since that announcement, as I understand it, the scheme has settled less than a fifth of that number each year, with an annual average of 770 people. How do the Government expect the other 4,230 of the world’s most vulnerable refugees each year to travel here? Do they expect them to go elsewhere or not go at all?

If we share the aim of ensuring people who are fleeing the worst can do so safely—and I am sure everyone in this House does—we need to work together to provide a reliable, active, responsive route to do so. Currently, the Bill is silent on this and, in answer to questions from the Commons, the Government gave no details about their plans. I hope the Minister is able to give more detail tonight.

The Government should, in this Bill or alongside it, commit to an expanded proactive resettlement route. The mechanism for doing that is provided in both Amendments 116 and 119E.

[Baroness Williams of Trafford (Con)]

My Lords, I thank everyone who has taken part in what has been quite a full debate. Amendment 115 seeks to introduce a safe route for unaccompanied children from countries in Europe to come to the UK. We all want to stop dangerous journeys in small boats and avoid a repeat of the distressing events of 24 November last year in the channel, where 27 people tragically lost their lives. We all know that children were impacted by that event, and I am sure that every noble Lord in this Committee is concerned about vulnerable children.

I think we can also agree that European countries are safe countries. Together, EU countries operate the Common European Asylum System, which is a framework of rules and procedures based on the full and inclusive application of the refugee convention. Its aim is to ensure the fair and humane treatment of applicants for international protection. There is no need for an unaccompanied child in a European state who needs protection to make a perilous onward journey to the UK, because that protection is already available to them.

I therefore argue that these proposed clauses would put vulnerable children in more danger by encouraging them to make dangerous journeys from outside Europe into Europe to seek to benefit from the scheme. They would create a new pull factor, motivating people to again entrust themselves to smugglers. While they might avoid the danger of a small boat, we know that journeys over land—for example, in the back of lorries—can be equally perilous. We cannot and must not do anything that supports the trafficker’s model. I am resolute on that. I know that is not what the noble Lord, Lord Dubs, intends, but it is the reality of this proposed new clause.

The UK does its fair share for unaccompanied children. According to the latest published statistics, there were 4,070 unaccompanied asylum-seeking children being cared for in England. In 2019, the UK had the most asylum applications from unaccompanied children of all EU+ countries and had the second highest in 2020. The Government met their one-off commitment to transfer 480 unaccompanied asylum-seeking children —we did meet that commitment—from Europe to the UK under Section 67 of the Immigration Act 2016, which is referred to as the Dubs scheme. This is essentially that scheme again in all but name.

The clause also fails to take into account the reality for unaccompanied children entering the UK domestic system right now. I am very grateful to the many local authorities who have been able to provide support on a voluntary basis to the national transfer scheme, introduced to enable the transfer of unaccompanied asylum-seeking children from one local authority to another, which aims to deliver a fairer distribution of unaccompanied children across the UK. Due to the extremely high intake of unaccompanied children over recent months, particularly as a result of small boat crossings on the south coast, and pressures of entry on local authorities, the national transfer scheme has been unable to keep up with demand. The unprecedented demand resulted in the exceptional decision to accommodate new arrivals of unaccompanied children in hotels to ensure that their immediate safeguarding and welfare needs could be met, pending their transfer to longer-term care placements. It is not ideal and it is not in the interests of those children who are currently waiting in hotels for local authority placements to agree to this clause. We need to prioritise finding long-term placements for those children already in the UK and ensure that we have a sustainable transfer scheme to deliver long-term solutions.

I must pick up the noble Lord, Lord Dubs, on one point. He talked about 1,500 places being pledged. He will know that, over the years, I have constantly challenged local authorities to come forward to the Home Office if they have places, and those numbers have not been forthcoming. Unfortunately, places pledged to a charity do not necessarily translate into places. His comments do not reflect our experience on the ground, given that we are using hotels for some newly arrived UASCs while urgently seeking care placements. The Government have mandated the national transfer scheme to ensure that we prioritise care placements for those unaccompanied asylum-seeking children who are in the UK.

Turning to Amendment 116, I understand the desire that Members of this Committee have to establish a minimum number of resettled refugees each year. Our current schemes are non-legislative, operating outside of the Immigration Rules and on a discretionary basis. Operating in this way has seen us resettle over 26,000 vulnerable people since 2015.

It is important that we take into account our capacity in the UK to support people, so that we can continue to resettle people safely and provide appropriate access to healthcare, education, housing, et cetera, without adding to the significant pressure that those services are already under. This amendment seeks to bring in a statutory minimum of 10,000 refugees each year within one month of Royal Assent. We already have over 12,000 refugees and people at risk who we are in the process of resettling permanently and integrating into society.

I turn now to Amendments 118 to 119B. I assure the Committee of my support for the humanitarian intentions behind these proposals and sympathise with the many people across the world who currently face danger and persecution. For resettlement, the UK works according to the humanitarian principles of impartiality and neutrality, which means that we do not take into consideration the ethno-religious origin of people requiring citizenship, as we resettle solely on the basis of need. That is not to in any way decry what the noble Lord, Lord Alton, has said, but we settle on the basis of need, as identified by the UNHCR.

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[Baroness Evans of Bowes Park (Con)]

I am very sorry to the noble Baroness; that was not my intention at all and I am very sorry she feels that way. It is absolutely not the case. All I can say is that we have now reached the time we are at. We must try to make progress; we must all work together to do that. I say on the record that I am very sorry to the noble Baroness—it is nothing to do with her and I am very sorry she feels that way.

[Lord Rosser (Lab)]

There are only five days scheduled in Committee on this Bill. This is by no means the longest Committee stage for a piece of legislation. Perhaps there ought to be a reflection on the Government’s side as to whether they did not seriously underestimate the number of days that were needed for Committee stage.

[Lord Paddick (LD)]

I will say from these Benches that, if the Government insist on bringing forward such controversial legislation, they cannot expect anything other than a number of noble Lords wanting to speak on these issues. If it were uncontroversial, noble Lords would not be queuing up to speak on the Bill. This is why we are in this situation, and we need more time so that we can adequately scrutinise this very controversial Bill.

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[Lord Paddick (LD)]

My Lords, as the noble Baroness, Lady Hollins, explained, these amendments seek to ensure that the mental and medical needs of asylum seekers are addressed. They would require the Secretary of State to issue codes of practice to ensure that

“the United Kingdom’s obligations under Article 12 of the International Covenant on Economic, Social and Cultural Rights 1966”

are fulfilled in relation to asylum seekers.

Whether their claims are deemed to have merit or not, asylum seekers are entitled to be looked after while they are in the United Kingdom. For the reasons that the noble Baroness explained, they are likely to be more vulnerable and in need of greater care than the general population. God forbid we engage in offshoring —either exporting refugees to a third country while they application for asylum in the UK is considered or, even worse, doing so for them to pursue their asylum claim in that country. That should not absolve the United Kingdom of its obligations under the 1966 covenant. We support these amendments.

[Lord Rosser (Lab)]

The two amendments in the name of the noble Baroness, Lady Hollins, would require the Secretary of State, first, to lay before Parliament codes of practice providing for guidance to assess the mental and physical health needs of any asylum seeker; and, secondly, to consult before preparing those codes.

Article 12 of the International Covenant on Economic, Social and Cultural Rights, to which reference has been made, provides that states recognise

“the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

I am sure that the Committee is grateful to the noble Baroness, Lady Hollins, for the opportunity to have this debate because the trauma experienced by people who have suffered violence, persecution, forced displacement and separation from loved ones has been a focal point of our debates on many clauses in this Bill. Recent experience has shown, to put it bluntly, a distinct failure by the Home Office to screen or properly care for the physical and mental health of people who arrive to seek asylum.

The figures showed, I think, that one in five people placed in Napier barracks had to be transferred out owing to vulnerabilities that the department should have screened for and responded to; these included people who had been trafficked and tortured. The Independent Chief Inspector of Borders and Immigration said:

“There was inadequate support for people who had self-harmed.”

Nationality and Borders Bill

Lord Rosser Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Rosser (Lab)]

I have the Clause 15 stand part debate and Amendment 195 in my name. I thank the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Etherton, for their support in opposing this clause, and my noble friend Lord Blunkett for his support on Amendment 195.

Clause 15 puts in the Bill an existing immigration law on inadmissibility that makes any asylum claim inadmissible in a number of circumstances, including if the claimant has passed through a safe country or if they have a connection to a safe third country. The result of a finding of inadmissibility is that, unless the Secretary of State decides that there are exceptional circumstances, the claimant will be denied access to the UK’s asylum system for a “reasonable period”, currently defined as six months in Home Office policy, while the UK seeks to transfer them to “any other safe country”. With the huge backlog and delay currently in the system, it is impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.

We believe that, as drafted, Clause 15 should not stand part of the Bill. It is just not acceptable or deliverable in practice. We have concerns on the definitions of “safe third state” and “connection” and the lack of relevant international agreements. Serious concerns have been raised by the UNHCR and the cross-party Joint Committee on Human Rights, among others. There is an absence of adequate safeguards against returning individuals to countries in which they will be denied rights owed to them under the refugee convention.

Safe returns, as part of an international asylum system, are not new and are accepted under agreed conditions. However, this clause does not provide for safe reciprocal return agreements. Even as it stands, the UK Government do not have return agreements with EU member states—namely the “safe third countries” that refugees are most likely to have passed through.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I think it is both. We need to assess people on a case-by-case basis and we need to have return agreements in place. It is not an either/or. I fully acknowledge the need to have return agreements in place. We could not return someone to a country that said it would not accept them; that simply would not be on. That underlines the need to have formal return agreements in place.

[Lord Rosser (Lab)]

Does that mean that the Government accept that Clause 15 is pretty meaningless without such agreements in place? There is no argument about that, then.

[Baroness Williams of Trafford (Con)]

No, I do not accept that Clause 15 is meaningless. I am agreeing that we need to have return agreements in place. I do not think anyone would disagree with that point.

[Lord Rosser (Lab)]

If we do not have return agreements in place by the time this clause comes in, we will end up with a lot of people being here for six months while the Government try to find out if they can send them back to another country. If you have no agreements with any other countries, you know before you start that that is a further six months wasted before the Government seek to do anything meaningful. Clearly the clause is meaningless without those agreements in place.

[Baroness Williams of Trafford (Con)]

I was going to go on to say that if no agreement is possible within a reasonable period, the individual’s asylum claim will be considered in the UK, but I am not disagreeing with the point that return agreements need to be in place. I think I have made that quite clear. Similarly, this is a global challenge, so every nation in the world has to be mindful of the fact that they will be in similar positions as the months and years go on.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I do not know if the noble Lord heard my last point, but we do not necessarily need formal return agreements in place. We can do returns without formal agreements. The point about Dublin is that the formal arrangements that were in place did not necessarily work. It is important to try both—formal and informal, diplomatic and otherwise. It works both ways and, as I said, this is a global challenge. It is not that it is not an EU problem either.

[Lord Rosser (Lab)]

Can I just be clear? Will this then work on the basis of some ad hoc arrangements that will be determined through diplomatic channels, in which other countries take people whom we have declared inadmissible? As I understand it, the number of people we are likely to declare inadmissible will be high. Will all that be done by ad hoc arrangements? Will there not be any agreements and will these countries come forward and say, “Yes, that’s fair enough. You declared the claim inadmissible; of course we will take them back”. Is that how it is going to work?

[Baroness Williams of Trafford (Con)]

My Lords, I am saying that there are a number of ways in which we can seek to secure this—formal, informal, diplomatic and otherwise. I am not saying there is a single solution to returns. Therefore, Clause 15 still needs to be in place.

It might not always be appropriate to apply inadmissibility to all claimants who have travelled via or have a connection to a safe country. The provisions that we have drafted already have flexibility that allows us to consider whether an individual has exceptional circumstances to warrant consideration of their asylum claim through the UK asylum system. As I said, this includes best interests. We also have the family reunion provisions that I mentioned earlier so, if individuals have family members in the UK, they should apply under those provisions. The inadmissibility provisions should not be used to circumnavigate those provisions and create a back door to enter the UK by dangerous means.

Furthermore, if an individual has not been recognised as a refugee, but has been provided with a different form of protection from refoulement, that country is safe for them to be removed to. To define a “safe third State” in the way suggested by the amendments ignores the other forms of protection available to individuals, which ensure that these countries are safe for them to be removed to.

Regarding Amendments 74, 73B, 74A and 75B, the UK should not be obliged to assess the substance of an asylum application where the applicant, due to a connection to a safe third country, can reasonably be expected to seek protection in that third country, or where they have already sought protection in a safe country and have moved on before the outcome of that claim, or where a claim has already been granted or considered and refused. This is a necessary part of achieving the policy aim of deterring those unnecessary and dangerous secondary movements. We are not alone in operating this practice. These amendments ignore the other forms of protection available to individuals that ensure that these countries are safe for them to be removed to. Amendments 75, 75A, and 76 would significantly undermine the aim of these provisions. The provisions as drafted send that clear message for those who could and should have claimed asylum in another safe country to do so.

I commend the spirit of Amendment 76, which would introduce a new clause to strengthen our inadmissibility provisions and deter irregular entry to the UK, particularly where that means of entry indicates that individuals have travelled to the UK via a safe country. I agree with the premise of this amendment—that access to the UK’s asylum system should be based on need and not driven by criminal enterprise. The provisions in the Bill send that clear message. However, this proposed new clause probably goes too far, and would breach our international obligations. It could place individuals in indefinite limbo, which would be against the object and purpose of the refugee convention. The provisions as drafted ensure that individuals are not left in limbo, with their asylum claim neither considered in the UK nor another safe third country. If after a reasonable period it has not been possible to agree removal of the individual to a safe third country, as I said earlier, their asylum claim will be considered in the UK. The introduction of Clauses 14 and 15 as they stand aims to strengthen our position on inadmissibility, further disincentivise people from making dangerous journeys, and encourage them to claim asylum in the first safe country.

I will leave it at that. I hope that noble Lords will be happy not to press their amendments.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I apologise but, in the war of attrition that this Bill has become, we seem to have lost any contributions other than from the Liberal Democrats and the Labour Front Bench.

Bearing that in mind, I will add to what my noble friend said rather than repeat anything she said. This clause smacks of the Home Office trying to remove or deport people before they have had a reasonable chance to appeal against a removal or deportation decision. No doubt it is embarrassing when repeated stories emerge of government charter flights taking off almost empty because the courts ruled that the majority of those with a seat on the plane should not be deported, but the answer is not to deport them before they have a reasonable chance to put their case before the courts. The answer is to improve the efficiency and effectiveness of the Home Office to ensure that there is a cast-iron case for deportation that cannot be overturned in the courts at the last minute. Yet again, the Bill focuses on the wrong solution to the problem.

I am sure the Minister will agree that as the Home Office becomes better at making its decisions and more and more appeals are turned down, as opposed to the current situation where the majority are accepted by the tribunals, there will be fewer appeals as lawyers say to their clients “Look at what’s happening now. There’s absolutely no point in appealing.” That is the answer to this problem, not Clauses 22 and 23.

[Lord Rosser (Lab)]

My Lords, the Bill’s system of penalisation includes curtailing appeal rights, as set out in Clauses 22 and 23. These clauses create an expedited appeal route for those who have been served with a priority removal notice and who have provided evidence or a claim after the PRN cut-off date. Most importantly, the right of appeal would be limited to the Upper Tribunal. However, where a person provides a good reason for lateness, they will not be subject to this clause.

Clause 23 wraps certain other appeals a person may have into the expedited appeals process, further restricting appeal rights. The Government say the reason this clause is needed is prevent delaying tactics, remove incentives for late claims and protect the system from abuse. It is probably fair to say that in this Bill, where so much of it is driven by the party-political considerations of the Government, they will be part of the so-called lefty-lawyers amendments—we have one or two others—who seem to have become the bête noire as far as this Government are concerned.

As has been said, I have added my name to the clause stand parts to Clauses 22 and 23, to start, at least, to probe concerns that have been raised about these provisions. The Law Society, the Public Law Project and Justice have recommended that these clauses be removed from the Bill. The UNHCR has raised legal concerns. I suggest that these are not concerns the Government should take lightly.

The UNHCR has said the expedited appeals process, as designed under Clause 22, risks “miscarriages of justice”. Its legal observations agree, as do we, that accelerated processes can be appropriate for

“manifestly unfounded or repeat claims, as long as they are sufficiently flexible and contain adequate safeguards to ensure that they can be determined fairly and justly.”

The UNHCR is, though, entirely clear that appeals

“should not be accelerated … for reasons that are unrelated to their merits.”

The widespread expediting of appeals under these sections is, in the words of the UNHCR, “arbitrary” and

“unrelated to considerations of justice or efficiency.”

It risks people having their human rights violated as a result of a truncated appeals process for asylum claims. The incorrect decision can cost an individual their safety, security and livelihood.

Clause 23 is particularly troubling on the “arbitrary” point as it joins certain pre-existing appeals to the expedited process, even where they pre-date the priority removal notice and were made entirely on time. I ask the Government: what in this clause actually targets the expedited process on vexatious and unmerited claims? That is the reason Ministers give for why the clause is needed but, as far as I can see, it is not what the clause as drafted achieves.

I will make a couple of further points. First, the Public Law Project has said that making a system quicker is patently not the same as making it efficient. In order to be efficient, a system must move both more quickly and more accurately.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, we support the amendments in the name of the noble Lord, Lord Dubs, for the reasons my noble friend Lady Ludford has explained. As my noble friend Lady Hamwee has explained, Amendment 94A is not to replace one arbitrary number with another but to probe how much legal aid should be provided in such cases. The Minister described, in a previous group, how cases are of different complexity and how people will be given more time to secure and collate evidence if they are from a vulnerable background. For example, if they come from an LGBTQIA background, they are less likely to be able to acquire evidence quickly, and therefore, the date on the notice they are given would change even during the process. Surely that points to the fact that each and every case is different and will require a different amount of legal aid, depending on how much aid is needed to advise in each particular circumstance. I understand that people who are in this situation do need legal aid, but surely the number of hours should be as case-specific and flexible as the deadline date of any notice for them to submit their evidence.

[Lord Rosser (Lab)]

We too support the amendments we are debating. I suppose, in a sense, this clause is a rare section of the Bill, in that we welcome it but desire it to go much further, as has already been said. Amendment 94A is a probing amendment, but it is a very valid one, because, clearly, the Government have come to the view that the seven hours of support that will be available will be sufficient.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, for the reasons I explained in a previous group, accelerating appeals processes is not the solution to the last-minute successful appeals against removal or deportation. Rather, it is improving the efficiency and effectiveness of the Home Office. Clause 26 is another clause with the wrong solution to the problem, and while Amendments 97 to 99 seek to limit the damage that accelerated appeals might cause, it is more lipstick on more pigs.

To my shame, I am struggling to keep my head above water on this Bill and asking that Clause 27 does not stand part of the Bill does not go far enough. Already the Home Secretary can certify that the decision to remove or deport can be appealed against only once the claimant has been removed or deported, which makes such an appeal more difficult. We should have tabled an amendment to remove that power, let alone Clause 27, which proposes to go one step further, allowing the Secretary of State to certify that a claim cannot be appealed against at all if she thinks it is clearly unfounded. That should be a decision for the tribunal and not the Executive.

[Lord Rosser (Lab)]

In this group, I have the Clause 26 stand part amendment, and Clause 26 requires the Tribunal Procedure Committee to create a fast-track route for certain appeals made from detention. The accelerated process would apply where the Secretary of State “considers” that an appeal brought in relation to the decision would

“likely be disposed of expeditiously.”

Of course, that raises the question of the basis on which the Secretary of State will decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously. Will it be done on a whim? Will it be done on the basis that we need to speed things up and this may be the way to do it? Will they be getting legal advice on whether they should consider that it is likely to be disposed of expeditiously? What happens if they do decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously, and they then find that it cannot be disposed of expeditiously? What is the redress in that situation?

The Explanatory Notes state:

“This clause aims to establish an accelerated route for those appeals made in detention which are considered suitable for a quick decision, to allow appellants to be released or removed more quickly.”


As far as the Explanatory Notes are concerned, it is being done for the highest of motives, and nothing to do with simply trying to speed up the process.

The Law Society, Justice, the UNHCR and the Public Law Project have recommended that the clause be removed from the Bill. They raise that the fast-track system largely replicates, as has been said, a system that was already found to be unlawful in 2015 in a Court of Appeal ruling.

We support the amendments and concerns raised in this group, but I intend to speak only to the amendment in my name, which is to oppose Clause 26 standing part of the Bill. The concerns are very clear. As I said, various organisations have recommended that the clause be removed from the Bill. Their basis for saying so is that it amounts to a new detained fast-track procedure that was found to be unlawful in 2015 due to being “structurally unfair”. The Court of Appeal described the timetable for such appeals as

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.

It held that the policy did not sufficiently appreciate

“the problems faced by legal representatives of obtaining instructions from individuals who are in detention”,

nor did it

“adequately take account of the complexity and difficulty of many asylum appeals”

and

“the gravity of the issues that are raised by them”.

Since that ruling, the Tribunal Procedure Committee has repeatedly taken the position not to introduce specific rules in relation to cases where an appellant is detained. In its report of March 2019, the TPC concluded that

“a set of specific rules would not lead to the results sought by the Government. If a set of rules were devised so as to operate fairly, they would not lead to the increased speed and certainty desired.”

Following the clear and somewhat damning court ruling and the position of the TPC, the Government’s response has been, as we now see, to legislate to reintroduce a fast-track procedure by forcing the TPC’s hand and requiring it to create one.

The questions for the Government are fairly simple. What is it about this scheme that is significantly structurally different from the scheme that was found to be legally unsound? What about this scheme will prevent it having a timetable

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity”?

Why, and on the basis of what evidence, do the Government disagree with the TPC when it says that such rules should not be brought in since they cannot both operate fairly and achieve the desired result of speed?

One wonders whether the Government are risking further judicial proceedings in replicating a scheme that has been found to be unlawful or, indeed, whether they would care too much anyway if there were such future judicial proceedings. I await the Government’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will come to the amendments in a moment but, since we have had a number of references to the old detained fast-track scheme, I will start by saying a word about that.

Obviously we considered carefully the legal challenges to the detained fast-track. We are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. It is right to say that the courts have been clear, in upholding the principle, that an accelerated process for appeals made in detention, operated within certain safeguards, is entirely legal. We believe that the new accelerated detained appeals route will contribute significantly to the timeliness with which appeals can be decided. We will be able to remove swiftly people found not to be eligible to remain while those people with valid claims can be released from detention more quickly, which is also important.

So far as the Tribunal Procedure Committee is concerned, the Bill sets out a clear policy intent but, as the noble Lord, Lord Rosser, says, changes to tribunal procedure rules are for the TPC to draft and are subject to its statutory consultation requirements and procedures. We have already begun to engage with the TPC on the elements of the Bill that will require tribunal rules to be made or amended and will continue to do so as the Bill progresses and passes into law.

I turn to the amendments before the Committee. I thank the noble Baroness, Lady Ludford, and, in his absence, the noble Lord, Lord Dubs, for Amendment 97. I understand the motivation behind it. It is right that appeals made from detention should be dealt with in a timely way so that, as I have said, people are not deprived of their liberty for longer than necessary, but we recognise that not all appeals made from detention will be suitable for the accelerated detained appeals route. So Clause 26 specifies that if a decision is certified as suitable for an accelerated detained appeal, in those circumstances the Secretary of State must consider that any appeal to the decision is likely to be disposed of expeditiously. Importantly, the tribunal may remove a case from the accelerated detained appeals route if that is the only way to ensure that justice can be done in a particular case.

--- Later in debate ---

For those reasons, I respectfully ask noble Lords in whose names the amendments stand, or on whose behalf they are speaking, not to press their amendments.

[Lord Rosser (Lab)]

I may not have been listening as attentively as I should have been, but if the Minister has already said it I ask him to repeat the criteria under which the Secretary of State will make the decision that he or she considers that the appeal is likely to be disposed of quickly, which was a question I asked. Another point rises from something he said—that the clause now sets an extremely high bar for an appeal to be released from the scheme, and provides that it can be done only where

“it is the only way to secure that justice is done.”

Am I not right in saying that this has been amended by the Government during the Bill’s passage, and that the original language permitted the release of a case if the tribunal

“is satisfied that it is in the interests of justice to do so”?

Why is it no longer the case that “the interests of justice” are a good enough reason to take action?

[Lord Wolfson of Tredegar (Con)]

I shall reply to the second point first, if I may. The language in Clause 26(5) is essentially the same language as in Clause 23(7).

[Lord Rosser (Lab)]

Is it the same or essentially the same? My understanding, and I may be wrong, is that the Bill now says that

“it is the only way to secure that justice is done”,

where previously it said

“that it is in the interests of justice to do so”.

They may be similar but they are not the same words.

[Lord Wolfson of Tredegar]

My Lords, I think we are at cross-purposes. I was not saying that the language had not changed; I was saying that the test in Clause 26(5) is the same test as in Clause 23(7). On the question of whether the language has changed, I think the noble Lord is right. I will write to confirm the position—I do not want to get it wrong at the Dispatch Box—but I think there was a change in this clause. The test as set out is entirely proper. Is the only way that justice can be done to take the case out of this tribunal? If that is the only way justice can be done, it ought to be done. If this tribunal therefore, by obvious logic, can deal with the case justly, it should do so.

On the first question, I am not sure how much more I can say. The Secretary of State must consider, in order to certify a case as suitable for an accelerated detained appeal, that any appeal to that decision would be likely to be disposed of expeditiously and that the other conditions are met. In coming to that conclusion, the Secretary of State would obviously have to look at all relevant factors. I am not sure that I can take it much further than that, but let me look again at the noble Lord’s question in Hansard. If I can add anything more, I will do so, so he is in possession of everything I can say before we look at it again—no doubt on Report.

Police, Crime, Sentencing and Courts Bill

Lord Rosser Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

Moved by

[Lord Rosser]

Amendment 2: leave out Clause 80
Member’s explanatory statement
This clause is consequential on a clause which was not added to the bill, as it was defeated by a vote of the House. This clause therefore provides background detail for a power and a clause that do not exist. This amendment would remove this non-operational clause from the bill.

[Lord Rosser (Lab)]

My Lords, my amendment would leave out Clause 80. The clause is consequential on a new clause from the Government that this House declined by a Division last week to add to the Bill. That new clause introduced the offence of “interference with use or operation of key national infrastructure”. What is now Clause 80 should surely not have been moved following that vote; it provides background detail for a power and a clause that do not exist. It starts off, for example, by saying:

“This section has effect for the purposes of section (Interference with use or operation of key national infrastructure)”,


and goes on to define types of national infrastructure for the purpose of the Government’s new clause to which this House disagreed. My amendment would thus remove that non-operational clause from the Bill. I understand that the Government will not be opposing this necessary tidying-up amendment, and I thank the noble Baroness the Minister for that. I beg to move.

[Lord Harris of Haringey (Lab)]

My Lords, I want to make the very simple point that even if the Government were not going to accept the amendment, the clause would be pretty nonsensical due to the very strange way in which it defines “national infrastructure”. It has a unique set of definitions that includes some things that would not normally be regarded as infrastructure and excludes other things that are critical to the nation and the way it operates.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Lord, Lord Rosser, who has explained that the amendment would remove Clause 80 from the Bill. It defines “key national infrastructure” for the purposes of the Government’s proposed offence of interfering with the operation or use of key national infrastructure. Of course, I was extremely disappointed that the House voted not to add this new offence to the Bill on Report. The proposed offence would help protect the British public from the misery that certain individuals targeting our key national infrastructure have been able to cause.

The Government fully defend the right to peaceful protest, but we stand behind the British public in protecting them from the serious disruption caused by some who think their right to protest trumps the rights of the public to go about their daily lives. That said, the fact remains that as your Lordships did not support the introduction of the new offence, we are not going to play games: what is now Clause 80 of the Bill is redundant, and, consequently, the Government will not oppose this amendment.

[Lord Rosser (Lab)]

I had moved the amendment and wanted to put it to the vote, and I hoped that the House would be prepared to accept it. I thank the Minister for what she has said.

Amendment 2 agreed.

--- Later in debate ---

[Lord Rosser (Lab)]

I say to my noble friends behind me that I will resist the temptation to make political comments on the Bill. After all the days we have had in Committee and on Report, I am sure they will understand why I do not wish to go down that road.

I thank the Minister, the noble Baroness, Lady Williams of Trafford, and the noble Lords, Lord Wolfson of Tredegar and Lord Sharpe of Epsom, for all the work that they have so obviously done on this Bill. I also thank them for the meetings we have held and the changes that have been secured through government amendments or government support for amendments.

I also thank my noble friends Lord Coaker, Lord Ponsonby of Shulbrede and Lady Chapman of Darlington. As the Minister reminded us, my noble friend Lord Kennedy of Southwark has also been involved, as has been my noble and learned friend Lord Falconer of Thoroton. We seem to have had a fairly large Front Bench on this side of the House, and I am extremely grateful to all of them for the work that they have done.

I too thank the Bill team. Everything that the Minister said about them we would certainly endorse and wish to be associated with. They have been extremely helpful, and we have appreciated that. I also thank the many outside organisations with an interest in the terms of this Bill for the briefings that they have given us, both written and verbal. That has been extremely helpful too.

Talking of help, I would like to thank for the vital and invaluable work they do colleagues in our office here in the Lords, particularly Grace Wright, who has been a key figure and has certainly kept me on the straight and narrow. I am quite sure that any mistakes I have made have been nothing to do with her; she has prevented me making an awful lot as it is.

The Bill has been improved by amendments that this House has made and, in some cases, by resisting amendments to which this House has not agreed. As the Minister said, it now goes back to the Commons. Like her, I too wait to see what the Commons will now make of this Bill as amended by your Lordships.

I again thank everybody whom I have mentioned, and I am quite sure that there are others whom I should have mentioned but have not done so. For that, I apologise.

[Lord Paddick (LD)]

My Lords, I remember looking at this 307-page Bill—or at least it was 307 pages to begin with—in August and wondering how on earth to tackle it. I was reminded that the way to eat an elephant is one piece at a time, which is the approach we took. This was about five Bills stapled together, except the PPO could not staple them together because it was too big. The Bill returns to the other place considerably improved, although you cannot make a silk purse out a sow’s ear—these are separate metaphors; I am not mixing them—or should I say a boar’s ear in these days?

I shall not resist what the Minister has said about the Bill. As far as we on these Benches are concerned, the existing legislation to control protest was adequate, and the measures that we have removed from the Bill were not necessary in the first place. The majority of the police consider that a lack of police officers is the limiting factor when it comes to policing of protests rather than a lack of legislation.

I would normally thank the Minister and the Bill team for their engagement, but, certainly, I am not alone on these Benches, at least as far as the home affairs side of things is concerned, in feeling that the Government have not reached out to us as much as they could or should have done. None the less, we have all been in this together over a considerable period, and I am grateful for the time that the Government have given in allowing us to debate these issues.

I thank the Official Opposition, both the leadership and Back-Benchers, the Cross- Benchers, non-affiliated Peers and the Greens for their support and co-operation. In particular, I thank Elizabeth Plummer and Grace Wright for their invaluable help on the Bill, as well as all the outside organisations which helpfully provided us with briefings. We would not have done any of this without that help, and we hope that the Government will see the improvements that we have made to the Bill as improvements when it is considered by the other place.

Police, Crime, Sentencing and Courts Bill

Lord Rosser Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

Moved by

[Lord Rosser]

104A: After Clause 172, insert the following new Clause—
“Child criminal exploitation
In section 3 of the Modern Slavery Act 2015 (meaning of exploitation), at the end insert—“Child criminal exploitation(7) Another person manipulates, deceives, coerces or controls the person to undertake activity which constitutes a criminal offence and the person is under the age of 18.””Member’s explanatory statement
This new Clause would introduce a statutory definition of child criminal exploitation.

[Lord Rosser (Lab)]

My Lords, a similar amendment was debated in Committee as part of a series of amendments relating to ensuring that safeguarding and tackling the criminal exploitation of children are a central part of the duty to reduce serious violence as set out in Part 2, with its duties on specified authorities to collaborate and plan to prevent and reduce serious violence. Children who are groomed and exploited by criminal gangs are the victims and not the criminals. A statutory duty to reduce violence cannot be effective on its own without a statutory duty to safeguard children. This amendment would provide a statutory definition of child criminal exploitation, putting a recognised definition in law for the first time.

The present lack of a single clear statutory definition has contributed to local authorities responding differently to this form of exploitation across the country. The Children’s Society says that just one-third of local authorities have a policy in place for responding to it, yet child criminal exploitation does not stop at local authority boundaries and requires a shared understanding and approach nationally. Barnardo’s has said that it has found that agencies, including police forces, do not routinely collect or record information on this type of exploitation. It reports that a number of reviews have found that children at risk are passed between agencies without meaningful engagement. Indeed, many children are not seen as victims of exploitation and abuse but instead receive punitive criminal justice responses.

A statutory definition, as we now have for domestic abuse, would improve awareness and understanding of child exploitation and its signs, and encourage joined-up working not only across the justice system but across all partners included in the serious violence reduction duty. It would give a common definition of what we are seeking to tackle in response to the abhorrent coercion and manipulation of children and vulnerable young people. This is not a minor issue. More than 25,000 children in the United Kingdom are presently at risk of gang exploitation, according to the Children’s Commissioner.

The response of the Government in Committee to establishing a statutory definition of child criminal exploitation was that they had considered it with a range of operational partners and had concluded that the definitions of exploitation within the Modern Slavery Act were sufficient to respond to a range of child criminal exploitation scenarios. However, the operational partners with whom presumably the Government considered a statutory definition will include the local authorities which according to the Children’s Society do not have a policy in place for responding to child criminal exploitation, the police forces and other agencies which Barnardo’s found are not routinely collecting or recording information on this type of exploitation, and the agencies which pass children at risk between each other without meaningful engagement. The evidence indicates that there is no consistency of approach across the agencies on child criminal exploitation, so it is clear that the existing definitions on which the Government relied when rejecting this amendment in Committee are not assisting in the way they should in responding to abhorrent child criminal exploitation scenarios.

I hope that the Government will be prepared to reflect further on this issue of a much-needed definition of child criminal exploitation as provided for in this amendment, which I move.

[Baroness Jones of Moulsecoomb (GP)]

I would be remiss if I did not point out to the Benches opposite that this is an issue that I have talked about quite a lot, in the context not of county lines and gangs but of the Met Police. I did not even realise that there was not a statutory definition, so I welcome this amendment. The definition talks about another person who manipulates and so on, and, of course, the Met Police manipulates children. We are assured constantly that it is a very small number, but it happens and does so apparently lawfully because the Government have not stopped it, so the Government are complicit in a crime.

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[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to the noble Lord, Lord Rosser, for setting out the case for the amendment and to all noble Lords who took part in this short debate. I wholly agree that the targeting, grooming and exploitation of children who are often the most vulnerable in our society for criminal purposes is deplorable. This Government are committed to tackling it.

Before I start, I say to the noble Baroness, Lady Jones of Moulsecoomb, that the Government are not complicit in crime. I remember CHIS being debated quite extensively in your Lordships’ House. They are subject to significant and stringent safeguards, so I think that we can leave that there.

This amendment seeks to establish a statutory definition of child criminal exploitation. As I indicated in Committee, the noble Lord, Lord Field of Birkenhead, the noble and learned Baroness, Lady Butler-Sloss, and Maria Miller MP undertook an independent review into the Modern Slavery Act 2015, the findings of which were published in May 2019. The definition of exploitation in Section 3 of the Act was explored as part of this review in response to calls that it should be amended to explicitly reflect new and emerging forms of exploitation, such as county lines.

The review heard evidence from the CPS, which warned against expanding the scope of the meaning of exploitation or defining exploitation so precisely that it would lack flexibility when applying the legislation to a changing profile of criminal conduct. The authors of the review agreed and recommended that the definition should not be amended, as it is sufficiently flexible to cover a range of circumstances, including new and emerging forms of modern slavery.

We agree that front-line practitioners need to have a clear understanding of child exploitation; the noble Lord, Lord Rosser, made these points very well. That is why child exploitation is already defined in statutory guidance, including the Keeping Children Safe in Education and Working Together to Safeguard Children statutory guidance. It is also set out in non-statutory practice documents for those working with young people, such as the Home Office Child Exploitation Disruption Toolkit and the county lines guidance.

We recognise that the vast majority of child criminal exploitation cases occur in the context of county lines. That is why the Home Office is providing up to £1 million this financial year to the St Giles Trust to provide specialist support for under-25s and their families who are affected by county lines exploitation. The project is operating in London, the West Midlands and Merseyside, which are the three largest exporting county lines areas. We also continue to fund the Missing People’s SafeCall service. This is a national confidential helpline service for young people, families and carers who are experiencing county lines exploitation.

I listened carefully to the right reverend Prelate the Bishop of Gloucester, who made some powerful points. She mentioned the Children’s Society. I should point out that the Home Office is funding the Children’s Society’s prevention programme, which works to tackle and prevent child criminal exploitation, child sexual abuse and exploitation, modern-day slavery and human trafficking on a regional and national basis. This has included a public awareness campaign called “Look Closer”, which started in September. It focuses on increasing awareness of the signs and indicators of child exploitation and encourages the public and service, retail and transport sector workers to report concerns to the police quickly.

Back to county lines and drugs. They devastate lives, ruin families and damage communities. That is why this Government have recently introduced a 10-year strategy to combat illicit drugs using a whole-system approach to cut off the supply of drugs by criminal gangs and give people with a drug addiction a route to a productive and drug-free life. Through the strategy, we will bolster our flagship county lines programme, investing up to £145 million to tackle the most violent and exploitative distribution model yet seen.

Clearly, we are all in agreement that tackling child criminal exploitation must be a priority. I have set out some of the steps that the Government are taking to do just that. However, the Government remain unpersuaded that defining child criminal exploitation in statute would aid understanding of the issue or help such exploitation. As I have indicated, we should pay heed to the conclusions of the independent review of the Modern Slavery Act, which commended the flexibility afforded by the current definition of exploitation. For these reasons, I ask the noble Lord to withdraw his amendment.

[Lord Rosser (Lab)]

First, I thank the right reverend Prelate the Bishop of Derby and the noble Lord, Lord Paddick, for adding their names to this amendment. Indeed, I thank all noble Lords who spoke in this debate.

Basically, the Government have repeated what they said in Committee. There is nothing new and no response to the point that a statutory duty to reduce violence cannot be effective without a statutory duty to safeguard children, which is what this amendment would provide by putting a recognised definition in law for the first time. There has not really been a response to that.

I made the point that the evidence indicates that there is no consistency of approach across the agencies on child criminal exploitation. Clearly, the definitions on which the Government relied in Committee, which they have now repeated on Report, are not assisting in the way that they should in responding to child criminal exploitation scenarios. It is a bit depressing to find no movement at all on the Government’s stance and, if I may say so, no attempt to respond to my point that, bearing in mind the inconsistencies, the existing definitions are clearly not doing the job that the Government claim they should be doing and, indeed, claim they are doing. That clearly is not the case.

I do not intend to test the opinion of the House on this. I say only that the issue is not going to going away. If we continue, as I suspect we will, with the inconsistencies of approach that have been identified by Barnardo’s and the Children’s Society and referred to during this debate—that is, if the Government do not address them, which is what this amendment in effect invites them to do—this matter will not go away. I am quite sure that it will be the subject of further discussion and debate if the present highly unsatisfactory situation continues in respect of child criminal exploitation. I beg leave to withdraw the amendment.

Amendment 104A withdrawn.

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[Baroness Jolly (LD)]

My Lords, as we said in Committee, we are in principle supportive of this amendment. However, we would want in an ideal world a balancing amendment to ensure the possibility of recall and by-election should a police and crime commissioner be found guilty of misconduct, along the lines of the Recall of MPs Act 2015. I agree with the noble Lord, Lord Bach, about the discrimination of early offences. Currently, because police and crime commissioners are democratically elected, they can be replaced only by means of another election, and as things stand there is no mechanism to force such a by-election. It is hoped that a disgraced PCC would resign but this should not be at the sole discussion of the PCC concerned. Therefore, we are reluctant to support the amendment without another along the lines of the one described earlier. My noble friend Lord Paddick says that he thinks it is unfortunate that the noble Lord, Lord Bach, did not take the hint that he gave him in Committee.

[Lord Rosser (Lab)]

My Lords, I will be brief. I recall that the Minister said in Committee on this amendment

“I fear that my ice thins a little here”.

One can only say that I think it has got even warmer since then. The Government said in Committee:

“Having said all that, I have heard everything that has been said around the Chamber this evening, across party, and I will make sure that those arguments are reflected back to the Home Office.”


What happened when those arguments were then reflected back to the Home Office, to whom in the Home Office were they reflected back to, and what was the response?

The rules on previous convictions, which the Government said in Committee were necessary to ensure

“the highest levels of integrity on the part of the person holding office and to protect the public’s trust in policing”

do not seem to have been very effective or relevant in North Yorkshire on two occasions already where two different PCCs have already departed the scene in interesting circumstances.

I conclude, in indicating our support for this amendment and thanking noble Lords for all the arguments and points made, that in Committee the Government referred to part 2 of the review of police and crime commissioners. They said that it is “currently under way” and that

“this review will also assess the benefits and demerits of a trigger mechanism for the recall of PCCs; it is being debated.”—[Official Report, 22/11/21; cols. 649-50.]

Will this part of the review of PCCs also now look at the issue of the current bar, in its present form, on a potential candidate being able to stand for the position of police and crime commissioner, which is the issue we are debating tonight? If the Government cannot even say that this will now be included in part 2 of the review, what is the reason for that stance?

I very much hope, like my noble friend Lord Bach, that the Government will accept this amendment, or at the very least agree to reflect on it further prior to Third Reading so that it can be brought back again if the Government’s reflections are not very satisfactory.

[Lord Sharpe of Epsom (Con)]

My Lords, first, I thank the noble Lord, Lord Bach, for giving us a further opportunity to discuss the disqualification criteria for those wishing to be elected as police and crime commissioners and for joining the meeting yesterday when we discussed this issue online. I thank all noble Lords who have participated in this debate and, to the point made by the noble Lord, Lord Rosser, I do fear my ice is rather thinner.

However, this latest amendment would allow anyone convicted of an imprisonable offence before the age of 21 to stand as a police and crime commissioner. I commend the noble Lord for seeking some middle ground to address this issue, but the amendment would still dilute the current high standard of integrity we expect of PCCs—namely, preventing anyone convicted of an imprisonable offence to stand for or hold the office of PCC.

As I said on this matter in Committee, the rules governing who can stand as a PCC are the strictest of all elected roles in England and Wales. We believe that this is necessary to ensure the highest levels of integrity of the person holding office and thus protect the public’s trust in policing. Any dilution of that high standard, as proposed by the noble Lord, could still undermine public confidence in a PCC.

Under the noble Lord’s amendment, it would be open to a person convicted of and imprisoned for a very serious violent offence at the age of 20, for example, to stand for election as a police and crime commissioner. That is inappropriate, given the nature of the role the PCC plays in holding the chief constable and the force to account. I suggest that were a PCC to hold office with a previous conviction for an imprisonable offence, both the PCC and the chief constable may find it untenable to maintain a professional and respectful relationship.

The current standard was set with cross-party agreement and the support of senior police officers. If the current standard is lowered, the Government maintain that it would be a very serious risk to public confidence and the integrity of the PCC model at a time when we should be doing all we can to protect and increase public confidence in the police.

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[Lord Sharpe of Epsom (Con)]

With regard to public confidence, I go back to what I said earlier: this was originally designed with cross-party support and with the assistance and advice of police chiefs.

[Lord Rosser (Lab)]

My Lords, before the noble Lord sits down, may I have a response to my question? Bearing in mind that in Committee the Government were prepared to tell us that part 2 of the review will

“also assess the benefits and demerits of a trigger mechanism for the recall of PCCs; it is being debated,”—[Official Report, 22/11/21; col. 649.]

may I ask for an assurance that part 2 of the review will also look at the issue raised by my noble friend Lord Bach in this amendment about the bar on being able to seek office as a PCC? May I have that assurance?

[Lord Sharpe of Epsom (Con)]

I am sorry I forgot to answer the noble Lord’s specific question. The problem is that I do not have the terms of reference to hand so I cannot give him the assurance he seeks, but I will write to him.

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[Lord Paddick (LD)]

My Lords, as other noble Lords have just said, serious and organised food crime can have very serious consequences. To free up scarce police resources by giving the National Food Crime Unit the powers that it needs seems sensible. According to the noble Lord, Lord Rooker, the National Police Chiefs’ Council supports this change, so I am looking forward to hearing from the Minister what I am missing, because I cannot immediately see any reason why this amendment should not be accepted.

[Lord Rosser (Lab)]

As has been said, this amendment raises the issue of food-related crime and the powers and resources available to tackle it. I will make just one or two comments that may seem almost irrelevant, in view of the very strong case that my noble friend Lord Rooker has already made, as we anticipated he would.

As my noble friend said, the National Food Crime Unit, which is part of the Food Standards Agency, works to tackle serious organised cases of food-related crime. My noble friend Lord Rooker powerfully and persuasively made the case that there are blocks on the powers that the unit can access and that it is often reliant on the police, who are overstretched across competing priorities, to be able to use certain powers or apply for warrants, for example. The amendment that my noble friend has moved would allow the unit to access powers directly, under the Police and Criminal Evidence Act, rather than waiting for police support to become available.

I will spell out exactly the Oral Question that my noble friend asked in February last year:

“My Lords, does the Minister accept that the National Food Crime Unit is operating against organised crime with its hands tied? Investigations are being hampered. Does the Minister agree that investigation powers should be strengthened to include powers to collect the necessary evidence to a higher standard? In other words, will the Government agree that the Police and Criminal Evidence Act powers should be granted to the National Food Crime Unit? The National Police Chiefs’ Council agrees to this to remove the burden from local police forces, which actually agree that food crime is not a high priority.”


As my noble friend said, the Minister replied:

“The noble Lord entirely has a point. I completely agree with him that the National Food Crime Unit has a formidable task ahead of it and that its investigatory powers could be enhanced and its impact improved. That is the view of the Government, industry and the police, and that is why we are committed to the dialogue”.—[Official Report, 22/2/21; col. 614.]


That is what the Government said in reply.

We welcome this commitment and would have given appropriate support to a resulting legislative process, which is why we are supportive of what my noble friend Lord Rooker seeks to achieve with this amendment. The Government have thus previously recognised that this is a problem, but what action has been taken so far since that clear recognition, which was repeated last February? Will the Government now accept the amendment my noble friend has moved? If not, why not?

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to the noble Lord, Lord Rooker, for raising this important matter. I acknowledge that there is considerable experience of the Food Standards Agency in your Lordships’ House. We support, in principle, the proposal to increase the investigative powers available to the National Food Crime Unit. The fraud cases of which we have been made aware by the chair of the Food Standards Agency, Professor Susan Jebb—as referred to by the noble Lord—are truly shocking.

Food crime is a very serious issue, with fraud in our food supply chains costing billions of pounds each year. The National Food Crime Unit, which was established to investigate these crimes, should be empowered to tackle them, to improve the response to these cases and to reduce the burden on its colleagues in law enforcement. As such, we are still committed to working with the Food Standards Agency and DHSC, its sponsoring department, on extending certain Police and Criminal Evidence Act powers to the National Food Crime Unit. However, in doing so, we need to work through the implications of this. It may assist the noble Lord if I briefly set out some of the issues we think we would need to explore further.

First, the exercise of any PACE powers by the National Food Crime Unit must be necessary, proportionate and legitimate. As such, it is important that there are suitable governance, accountability, oversight, investigations and complaints arrangements in place, as there are for the police. The National Food Crime Unit is not a statutory body, nor does it have a separate legal identity. Oversight, governance and the complaints processes sit with the Food Standards Agency board, which commissions independent reviews and facilitates a complaints process which ultimately reports to the Parliamentary and Health Service Ombudsman. There is therefore no formal independent oversight.

There is also a lack of clarity on the necessary protocols when PACE powers would be exercised, including in relation to post-incident procedures on seizure, retention and evaluation of evidence, and the treatment of arrested persons without police presence. These are all issues which, I have no doubt, can be resolved but I am sure noble Lords would agree on the necessity of ensuring that the appropriate accountability and governance arrangements are in place, given that we are dealing with intrusive powers of the state. As such, we do not believe that it would be appropriate to extend the search and seizure powers in PACE to the National Food Crime Unit without further consultation on the issues I have described. I do not think the noble Lord, Lord Paddick, misses very much, but that is the answer to his question.

I reassure the noble Lord, Lord Rooker, that we are committed to taking this work forward with the Food Standards Agency. I do not have a specific answer to the question of the noble Lord, Lord Rosser, on where the dialogue is at the moment. On that basis, I hope that the noble Lord will be content to withdraw his amendment.

Police, Crime, Sentencing and Courts Bill

Lord Rosser Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Paddick (LD)]

My Lords, Clause 63 amends Section 61 of the Criminal Justice and Public Order Act 1994. Section 61 addresses the situation that the noble and learned Lord, Lord Garnier, alluded to on Wednesday—at Hansard col. 1313—when he told us that, 25 years ago, as a Member of Parliament, he was rung by a very distressed farmer in his constituency, whose land was being trespassed on. I make that 1996, but perhaps it was before the 1994 Act was effective.

As my noble friend Lady Brinton has said, Section 61 of the 1994 Act provides a power to remove trespassers on land. I will quote subsection (1):

“If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and … that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or …that those persons have between them six or more vehicles on the land, he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.”


Subsection (4) states:

“If a person knowing that a direction under subsection (1) … has been given which applies to him … fails to leave the land as soon as reasonably practicable, or … having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given, he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.”


That is the law now, unamended by this Bill.

As many noble Lords said on Wednesday, what is the problem that Part 4 is trying to solve, when there are clearly adequate powers already in existence? Clause 63 simply brings Section 61 of the 1994 Act into line with the rest of Part 4 of the Bill. For the reasons so thoroughly and persuasively argued on Wednesday, this clause, like the rest of Part 4, should not stand part of the Bill.

Section 68 of the 1994 Act, as amended by the Anti-social Behaviour Act 2003, is the offence of aggravated trespass, where

“A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect … of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity … of obstructing that activity, or … of disrupting that activity.”


I am getting the sense of hunt saboteurs, HS2 protestors or, perhaps, those protesting against genetically modified crops, rather than Gypsy, Roma and Travellers. Section 68 appears to me to refer to deliberate interference with lawful activity by means of trespass, rather than coincidental interference; for example, ploughing a field that travellers are trespassing on. Unlike the noble and learned Lord, Lord Garnier, I am not a lawyer, but perhaps the Minister can clarify the difference between Section 68 and what we have been talking about up until now.

As far as Amendment 150 is concerned, as the noble and learned Lord, Lord Garnier, explained, it attempts to correct an error in existing legislation. I agree with the noble and learned Lord that the activity being disrupted should be and needs to be unlawful, rather than the trespasser simply asserting that he believes that it should not be happening. I am not sure that the accused should have to prove that they were not trespassing. As the noble Baroness, Lady Chakrabarti, has said, that seems to be going perhaps a bit too far. We support the amendment in principle, in as far as the activity on the land that is being disrupted needs to be unlawful, rather than just being asserted as being unlawful.

As we leave this part of the Bill, I want to again acknowledge the long and tireless campaign by the noble Baroness, Lady Whitaker, to defend Gypsy, Roma and Traveller communities. I fear that, at Report, we may need to adopt a different approach than simply removing all the clauses in Part 4 from the Bill, in the light of what the Minister said on Wednesday, at Hansard col. 1330, when she quoted from the Conservative Party manifesto:

“We will give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments, in order to protect our communities. We will make intentional trespass a criminal offence.”


That is very interesting wording. New powers do not necessarily mean more draconian powers. I respectfully suggest that on Report this House should bring forward new powers that provide the necessary protections for all our communities, including Gypsy, Roma and Traveller communities. For example—I quote from the manifesto—it could be argued that making

“intentional trespass a criminal offence”

entirely supports Amendment 135 in the name of the noble Lord, Lord Rosser, providing that, where Travellers have no suitable legal pitch on a relevant caravan site situated in the local authority’s area, the trespass should not be regarded as intentional.

It is absolutely right that we, and many others in this Committee, express our outright opposition to Part 4 as drafted but, when we return to these issues on Report, it will be with more sophisticated amendments to take account of the wording in the Conservative Party manifesto—and the convention of not blocking, at least not entirely, commitments made by the governing party in their manifesto—that protect all communities, including Gypsy, Roma and Traveller communities.

[Lord Rosser (Lab)]

My Lords, I will be relatively brief. We had a lengthy debate on the previous day in Committee about Part 4 on unauthorised encampments, and expressed our strong concerns about what is proposed in Part 4. I will just reiterate a couple of points. Certainly, our understanding is that the police seem to think the existing law adequate; indeed, so do local government officers who have direct involvement with the Gypsy, Traveller and Roma community.

The noble and learned Lord, Lord Garnier, put forward Amendment 150 on the basis that it is putting right a wrong. The obvious concern is that, in so doing, it creates new wrongs or new unfairness, not least in relation to the Gypsy, Traveller and Roma community. The noble Lord, Lord Paddick, probably quite rightly said that much of the debate might suggest that this amendment was aimed at others, perhaps those involved in protests over GM crops or HS2. Certainly, it involves a change as far as the onus of proof of the accused is concerned. The noble and learned Lord said that he is not going to press the amendment to a vote in Committee. I hope I am not misrepresenting what he said, but I think he said he would wait for the Minister’s response before deciding how and if to progress the matter further. We have our concerns about Amendment 150 and what exactly it might mean, but at this stage we stand in the same position as him: we will wait to hear what the Minister says on behalf of the Government in response to Amendment 150. At the moment we have fairly strong reservations about its implications, but we will listen to what the Government have to say.

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

My Lords, I thank all noble Lords who have spoken in this debate. I particularly thank the noble Baroness, Lady Bakewell of Hardington Mandeville, for her apologies, which in fact I got the other night. It was very courteous of her to give them.

Before I turn to whether Clause 63 should stand part of the Bill, let me deal with Amendment 150 in the name of my noble and learned friend Lord Garnier, which relates to the offence of aggravated trespass, as he outlined. The effect of this amendment would be to introduce a statutory defence to the offence at Section 68 of the Criminal Justice and Public Order Act 1994, as he explained. It would require the defendant to show that they were not trespassing, or that the activity which they intended by their trespass to obstruct or disrupt or cause intimidation in respect of was unlawful.

--- Later in debate ---

I end by recalling that the late Duke of Edinburgh, a few years before he died, was driving, I think, a Land Rover out of Sandringham on to a public highway, there colliding with another vehicle, driven by a woman who—I am pretty sure I recollect correctly—broke her wrist. He wrote her, of course, a letter of apology and so forth. Should the Duke on that account—undoubtedly careless driving and undoubtedly a serious injury within the meaning of this legislation—have been liable to a prison sentence? I respectfully say no.

[Lord Rosser (Lab)]

I will, once again, I hope, be relatively brief. We welcome Clause 65 and the Government’s actions to increase sentences for those who cause death by dangerous or careless driving under the influence of drink or drugs. Here, at least, is one part of the Bill where we can support its intentions.

We also support the aim of the amendments in this group, which seek to improve road safety and keep dangerous drivers off our roads. I pay tribute to all those, including many noble Lords, who have campaigned to improve road safety and reduce deaths and serious injury. We particularly add our support to Amendment 152, which would widen those protections and increase sentences for causing serious injury while under the influence of drugs or alcohol. Having said that, of course, there can be a slim difference between serious injury with a life saved and serious injury with a life lost.

Clause 66 inserts an offence to fill a gap in the law of causing serious injury by careless or inconsiderate driving. I note some of the comments that have been made in respect of causing serious injury by careless or inconsiderate driving, but certainly we support the basic intentions of what is proposed.

The issue of car dooring has been raised for some years by cycling groups, and we have called on the Government to develop a comprehensive new national cycling safety campaign, aimed at not just cyclists but motorists. During the lockdown, cycling increased by, I think, as much as 200% at weekends, with significant increases during the week. We will not be able to build on that progress—I am sure we all regard an increase in cycling as progress—unless we take action to make our roads safe enough to cycle on. What plans do the Government have to look at road safety issues impacting cyclists, as well as other drivers?

I look forward to the Minister’s reply to this debate and to the amendments which we have been discussing.

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A driver, in a situation where the local authority is enforcing the rules, could find themselves disqualified from driving under the totting-up procedure. That happening in a civil court is clearly something that would have to be thought through, because it would change pretty fundamentally the relationship between many drivers and their local authority. It is typical of the topics that the Government need to address as part of an overall review of road traffic offences, their enforcement and the calibration of penalties for those offences in the modern world. I look forward to the Minister’s response.

[Lord Rosser (Lab)]

My Lords, like the noble Baroness, Lady Randerson, I do not intend to stand here and announce our 100% support for what is proposed. We are interested in the issues raised and certainly look forward to the Government’s reply. To state the obvious, I say that local councils are key partners and innovators in improving road safety and encouraging the use of different modes of transport. What is proposed is quite a major step forward from that.

I will add one point, to which the answer may well be that the solution is obvious. Simply, if we end up with new powers or duties in this area being granted to local authorities, they must be accompanied by funding. The reply may be, “Well, of course they’ll get the money, because they’ll get it from any fines they might impose”, but it may not be quite as straightforward as that. Making such a move might put a bigger burden and workload on local authorities than might be envisaged. If people are thinking of going down this road, they should make sure that, from whatever source it may be coming, the funding is available.

As I recollect, the Government have plans, for which local authorities have been waiting a little while, to increase local authority powers to manage local roads, under the Traffic Management Act 2004. If I am right, will the Minister give us an update on where we stand on that and what kind of issues the Government are considering as part of any such plans? As part of that, have the Government looked at the issue of speeding enforcement—as suggested in these amendments—at local authority level when looking at any planned increases to local authority powers in this area? As I said at the beginning, we are interested in the issues raised by these amendments and look forward to hearing the Government’s response.

[Lord Paddick (LD)]

I apologise to the Committee: I was not going to say anything, but I could not resist. There is clearly an issue with people receiving endorsements on driving licences and potentially being disqualified from driving not being dealt with in the criminal courts and through the appeal process that they provide. On the issue around lack of enforcement, does the Minister have any information about the potential use of speed cameras in 20 miles per hour zones to increase enforcement and to what extent speed cameras are self-financing, in terms of the money they generate versus the cost of running them?

Police, Crime, Sentencing and Courts Bill

Lord Rosser Excerpts

Lords Hansard - part two & Committee stage
Monday 8th November 2021 Lords Chamber

I urge the Government to think again. Lower limits are supported by the RAC, Brake, and the Alcohol Health Alliance UK. In an attempt to appeal to the Government, I emphasise that this is a highly popular policy. The British Social Attitudes survey showed that 77% of the public are in favour of lowering the alcohol limits. That majority holds across all social and demographic groups, in both rural and urban areas, among young and old, and across all political allegiances. What have the Government got to be frightened of in adopting this policy?

[Lord Rosser (Lab)]

My Lords, I am sure that the House will be grateful to my noble friend Lord Brooke of Alverthorpe and his co-signatories for raising these issues again. This is a vitally important debate. We know that prior to the last election, a Transport Minister said that the Government had no plans to change the drink-drive limit. They did not believe that a case had been made and instead would focus on enforcing the current law. However, in January 2021, the Parliamentary Advisory Council for Transport Safety reported that the UK’s current system to prevent drink-driving was no longer adequate. It recommended a major review across the board on drink-driving, including lowering the legal limit.

Rather importantly, on the issue of enforcement, the PACTS report found that:

“Levels of police enforcement had decreased by 63% since 2009 and there are indications that drivers believe they are less likely to be caught.”


We know that drink-driving is one of the biggest causes of road deaths, at 13%, and that in the last decade 240 people have been killed each year where a driver was over the limit and that 17% of drink-drive offences are committed by a reoffender. We also know that levels of police enforcement have decreased quite substantially.

It is relevant to ask the Government what they are doing in this regard. Having said, prior to the last election, that they would instead focus on enforcing the current law, clearly that is not what has happened. Indeed, the situation appears in that regard to have got worse. Are the Government actively looking at international comparisons that have been referred to today, and the fact that we are higher when it comes to the legal limit than virtually every other country? Have they been looking at, for example, random breath tests? What do they make of the evidence? My noble friend Lord Brooke of Alverthorpe, has been open about Scotland having introduced a reduced drink-driving limit in 2014 which brought them into line with most other countries in Europe. My understanding is that it has been accepted by the public and, interestingly, it has not significantly impacted pubs and restaurants, which was one of the arguments against going down the same road as Scotland. It does not appear to have overloaded the police or the courts, which was another argument, and it seems that Northern Ireland may go even further, at least with a zero limit for novice and professional drivers.

I will listen with interest to what the Government have to say about why we should be so far adrift on international comparisons, and to what the Government have to say regarding the situation in Scotland. I appreciate that my noble friend Lord Brooke of Alverthorpe has given a very accurate statement of the situation, but those arguments which were advanced at the time for not bringing us in line with Scotland, in relation to impacts on pubs and restaurants and the police and courts, for example, have not materialised, as far as I know. I wait to be corrected if I am wrong.

The PACTS report recommended, among other things, mandatory breath-testing powers for the police, a reduction in enforcement levels to be reversed, a lower breath-test limit for England and Wales and for the Government to pay more attention to drink-driving, alcohol harm and night-time economy policies. When he was commenting on the report, the executive director of PACTS said that:

“After 10 years of declining levels of enforcement and social media campaigns aimed at young men, it is time for a new, more comprehensive approach to reducing the toll of drink drive deaths and injuries. Drink driving is often cited as a road safety success story, yet it remains a major killer and progress has ground to a halt since 2010. Not only is better enforcement important but also the problems of mental health and alcohol dependency need to be recognised.”


What has come across in our debate this evening is a recognition that we seem to have stopped making progress; and we are still much higher compared with most other countries involved in the international comparisons. Some of the things that were said about Scotland—that it would be a difficulty if we came down to their level—have not materialised in Scotland. Drink-drive deaths are still at an unacceptable level. We seem to have stopped making progress.

I hope that in the Minister’s response we are going to hear what plans the Government have to bring down the level of drink-driving. It is not good enough that somebody puts forward a proposal to lower the limit and the Government do not agree with it. If the Government do not agree with it, what do they intend to do to improve the situation? Arguments have been advanced tonight as to why bringing down the limit would improve the situation. You can certainly say with random testing that, if the limit is lower, the chances are the random testing is likely to have a more dramatic effect than if the limit is at the present higher level—where we seem to have reached a situation in which a number of those who drink and drive seem fairly convinced they will not be caught or get into difficulties as a result.

I hope we will hear from the Minister tonight what the Government are doing. I hope it will not just be a case of the Government saying, “We don’t agree with an amendment to bring it down to 50, we don’t agree with an amendment about random breath testing”, because if that is their response, it is purely negative. It is saying “We are not prepared to go down the road of the ideas that have been advanced, but we do not have any fresh ideas ourselves—we do not have a programme for reducing drink-driving”—and that, surely, is what we all want to do in view of the level of deaths. I hope we will get a positive response from the Government and a recognition that we need to do something, not rejection out of hand of every idea that has been put forward in our debate this evening.

[Noble Lords]

Hear, hear!

--- Later in debate ---

[Lord Rosser (Lab)]

This issue was also raised by my colleague, Ben Bradshaw MP, in the Commons. As has been said, exceptional hardship is the plea a person can use when charged with road traffic offences to avoid losing their licence if not being able to drive would cause them exceptional hardship. Obviously, as we have heard, the concerns about the system are that exceptional hardship is being agreed to too frequently for repeat offenders and in spurious cases.

What has quite clearly been asked of the Government —that is, what is being sought—is a tightening-up of the definition of exceptional hardship. I ask the Government to say in their response, first, whether, in their view, there is an issue with exceptional hardship being agreed to rather too frequently. Do the figures show that the number of times exceptional hardship is being agreed to is going up year by year? As I understand it, between 2011 and 2020, there were more than 83,500 cases where drivers did not receive a driving ban by pleading exceptional hardship. Do the Government have a feel for whether it is the case that instances of exceptional hardship being agreed to are increasing? Are they aware of any areas, perhaps in relation to courts, where there is what they regard as best practice, where the system is working well?

I remember once being told that “exceptional hardship” was something that people suffered, for example, at times of war. When it comes to the loss of a licence, perhaps we are talking more about a form of inconvenience than necessarily about hardship. Even in the more extreme case where somebody was able to persuade you that they would lose their job, presumably it is relevant to ask, “Well, that may be the case, but if it is for a short period of time, will the employer be prepared to live with it and give out other duties that do not involve driving?” Perhaps, if they are going to lose their job, it would suggest that the employer is not necessarily highly enamoured of their performance. But, even in a case where you might lose your job, it must surely be assessed against “exceptional hardship”: what would the individual’s prospects be at that time of getting another, completely different job that did not involve driving, if a ban would cause them to lose their job that involved driving?

I know that there are other instances where people come out with examples of it being almost impossible to get to work but where it turns out that, if they were prepared to get up an hour and a half earlier in the morning, they might be able to get there by public transport—but somehow it is regarded as an “exceptional hardship” to have to get up so much earlier to get there by public transport and it taking longer to get home. So I am aware of the way these arguments get used and put forward, and we need to be careful to draw a clear distinction between what is “exceptional hardship”, with a proper definition of “hardship”, and what may be closer to “exceptional inconvenience”.

I simply repeat what I asked earlier: do the Government have a feel for this one? Do they have any information on the extent to which “exceptional hardship” is being used and accepted more as an argument? Do they have any examples of where the wording is being applied in perhaps a more realistic manner, and are they looking to take action in this area? What is being asked for in this amendment is that we should tighten up the definition of what constitutes exceptional hardship. I await the Government’s response with interest.

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

My Lords, I thank all noble Lords, and particularly the noble Baroness, Lady Randerson, for her explanation of this amendment, which seeks to define the term “exceptional hardship” that applies in the context of a court’s decision on whether to impose a driving ban.

I reassure the Committee that the Government take road safety extremely seriously. Drivers who reach 12 points should automatically be disqualified from driving, to protect themselves and others. However, sentencing, including the imposition and length of a driving disqualification, is properly a matter for our independent courts, based on the facts of each case—we have heard of a number of interesting and diverse cases this evening. Courts have the discretion not to disqualify, or to impose a reduced disqualification, if they are satisfied that there are mitigating circumstances justifying a claim of “exceptional hardship”.

This amendment to introduce a definition of “exceptional hardship” is unnecessary, detrimental to judicial discretion and of questionable utility in assisting a court in applying the “exceptional hardship” test. It would introduce a narrow definition that would not be able to account for all circumstances that were presented to the courts and would remove the courts’ freedom to use their experience to reach decisions accordingly.

It might assist the Committee if I read out the sentencing guidance that is already in practice—from my mobile phone. It says:

“When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following … It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn … Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence … Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive … If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account … Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable.”


It concludes by saying:

“Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.”


I hope the Committee found that guidance helpful.

--- Later in debate ---

[Lord Russell of Liverpool (CB)]

My Lords, I support both amendments, including that of the noble Lord, Lord Berkeley, of which I am a co-signatory. As discussed earlier, most UK road traffic legislation predates the modern era and lags some way behind. I am ancient enough to remember that in the 1950s, when travelling around probably at high speed with my mother in her two-seater red MG, RAC officers would stand to attention and salute as we went past, after seeing the RAC badge. That does not seem to happen any more. I can also remember the designer of the Mini, Sir Alec Issigonis of blessed memory. He had two rules when driving a car. First, he did not allow a wireless—as they were then called—in his car, because he thought that was a distraction. Secondly, if anybody was a passenger in his car, including Lady Issigonis, silence was required. He felt that any discourse was a distraction from driving. It is rather different now with the array of technology in one’s car, including technology allowing the car to talk back. Perhaps some people find that preferable to having their other half talk to them, but that is another matter.

I live in SW6, where the roads are like the wild south-west. I go around a lot by bicycle, and every day I see the most extraordinary and flagrant driving and bicycling. At a local Tesco Metro there is a security guard, who I know is there when his state-of-the-art electric bicycle is locked up outside. I spoke to him and looked at his bicycle, as it is a great deal more powerful than mine. I asked him, “How fast does it go?” and he said, “About 50 miles an hour.” I said, “Do you realise that’s illegal?” He said, “Oh yeah. I had it down the road the other day, and a couple of police officers came up admiring the bicycle, asked me how fast it would go, and were very impressed.” That is a strange state of affairs.

The noble Baroness, Lady Randerson, mentioned e-scooters, which I see all over the place. They are incredibly dangerous. The noble and learned Lord, Lord Hope, talked earlier about Edinburgh, where the bicycle lanes have been designed in such a way that they are now full of leaves. There is no equipment to clean them, so people are in mortal danger if they ride a bicycle in a bicycle lane. That is not good.

That is only part of the problem. As the Minister may recall, during the debate on some earlier aspects of the Bill, we talked in particular about a report from September by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. It so happens that that same institution produced a report in July last year called Roads Policing: Not Optional. It looked at the state of road policing and the enforcement of the types of laws and regulations across England and Wales about which we are talking. If you are responsible for enforcement, it is not a happy read. It says:

“we found that the importance of roads policing has been in decline”

for many years. In some instances, it found police forces where the officers in charge of road policing were not familiar with the relevant road traffic laws which they were meant to enforce. It asked several questions about the state of enforcement of these laws:

“How effective are the national and local strategic approaches to roads policing? Roads policing in some forces is inadequate … How well are capability and capacity matched to demand? Often capability and capacity doesn’t meet demand … How well do the police engage with the public and partners? A lack of co-ordination hinders effective engagement with the public and partners … How well are police officers trained to deal with roads policing matters? Roads policing training should be standardised and accredited.”


It then made a series of 13 eminently sensible recommendations.

If we are to have a wholesale review of road traffic offences, it has to be done hand in hand with enforcement. There is no point in having laws and regulations if we are incapable of enforcing them consistently. You may say that the time is not now but, at some point in the future, we are going to have to do something before more and more people are killed and there are more and more complex remote vehicles, e-scooters and all the rest of it. Why not just acknowledge that and bite the bullet now, rather than kick the can down the road, which we have been doing for so many years?

[Lord Rosser (Lab)]

My Lords, I will be brief because I think that the arguments in favour of these two amendments have been made very powerfully. They are both intended to require the Secretary of State to carry out a review of road traffic offences and penalties. As has been pointed out, there have been so many changes with our roads and new vehicles in recent years as to justify in itself the need for the review which these two amendments seek. As I understand it, the Government promised a full review of road traffic offences and penalties back in 2014. So far as I know, this has not yet happened. In expressing our support for these amendments and for what they seek to achieve, I simply ask what has happened to the promised review so far as the Government are concerned.

[Lord Sharpe of Epsom (Con)]

I thank all noble Lords who have participated in this relatively short debate. As we have heard, Amendments 159 and 165 would require the Government to conduct a full review of road traffic offences. I shall make a number of brief points in response.

First, we do not consider it appropriate to include a requirement in legislation for the Government to undertake a review, especially in the case of Amendment 165 from the noble Lord, Lord Berkeley. The Government are concerned that this amendment sets out, without consultation or regard to practicalities, the terms of reference and timing of such a review. We are also concerned that the amendment does not fully grasp the range and complexity of the review which the Government would be required to undertake. Nor, might I suggest, does it consider who is best placed to conduct such a review—the Government, an independent body such as the Law Commission, or an expert panel.

Secondly, I point out the announcement of a review of driving offences and penalties in May 2014 by the then Secretary of State for Justice. The Government did conduct a review; I hope that goes some way towards answering the question from the noble Lord, Lord Rosser. As part of that internal review, we considered a range of concerns that had been raised by campaigners, victims and parliamentarians. In the debate on an earlier group of amendments, my noble friend Lord Wolfson committed to writing to the noble Baroness, Lady Jones of Moulsecoomb, and some of those concerned participants.

The review focused on the most serious offences that can result in death or serious injury, and the results are what we see now in Clauses 65 and 66 of the Bill. As we have already debated, the Bill includes provisions that will increase the maximum penalty for causing death by dangerous driving from 14 years’ imprisonment to life—again, I refer to the points made by the noble Baroness, Lady Jones of Moulsecoomb. Provisions in the Bill will also increase the maximum penalty for causing death by careless driving while under the influence of drink or drugs from 14 years to life imprisonment and create a new offence of causing serious injury by careless driving. These provisions have been long awaited, and they have widespread support. Those reforms also fit within the existing framework of road traffic offences. They are therefore consistent and proportionate responses and should be allowed to take effect before any further reform is considered.

I take note of the list that the noble Baroness, Lady Randerson, gave of other things she thinks should be considered, but, without going into detail on all of it, I will make just a couple of points. First, I mentioned in the group of amendments on pedicabs that there is a consultation on cycling which began in 2018 and is due to report towards the end of this year or the beginning of next year. I hope that will help to answer some of those questions about the changing nature of cycling. On e-scooters, they are of course illegal unless they are hired and, if the rider is not insured, they can be impounded. I take the points made by the noble Lord, Lord Russell, about enforcement very seriously—these rules are not being enforced, and they perfectly well should be. I also say to the noble Lord that I am extremely jealous of his mother’s red MG—my mother had a Ford Popular, and we used to have to hide on the back seat.

My last point is simply this: while we do not think it is necessary to legislate to require such a review, or to set out its terms of reference in such a restrictive way, the Government are not ruling out a wider review of road traffic offences in the future. As the noble Baroness, Lady Randerson, said, there will be a whole bunch of considerations when we have the advent of technologies such as autonomous vehicles—not just road traffic considerations but things such as who insures them, how you insure them, and whether you are insuring the car, the driver, the software or the hardware. There are a whole variety of different implications. We will, of course, keep the law under review both in terms of specific offences and where it is necessary to reform the structure of the legislation. But having had this opportunity to debate this issue, I invite the noble Baroness, Lady Randerson, to withdraw her amendment.

Police, Crime, Sentencing and Courts Bill

Lord Rosser Excerpts

Lords Hansard - part one & Committee stage
Wednesday 3rd November 2021 Lords Chamber

That is why these amendments are so important. That is why there needs to be a statutory duty of candour. If not, the culture of cover-up, back covering and misogyny will persist in the police service. I am told that a statutory duty of candour was introduced for the National Health Service and its effect was transformational, so why not for the police service? We have been slightly less ambitious in our amendment than the noble Lord, Lord Rosser, in allowing the Home Secretary 12 months to consult on this issue and bring forward legislation, but this needs to be addressed urgently. I beg to move.

[Lord Rosser (Lab)]

My Lords, I thank the noble Lord, Lord Paddick, for introducing this group and referring to his personal experiences on the issue we are debating. The amendment in my name would likewise establish a statutory duty of candour on the police workforce and is similar in effect to that he moved. It would create a statutory duty on law enforcement to act at all times in the public interest and with transparency, candour and frankness, and to assist in court proceedings, official inquiries and investigations where its activities, including omissions, may be relevant. I will be brief because the Committee is already familiar with this issue and I do not intend to repeat everything that has just been said by the noble Lord.

In his 2017 report on the pain and suffering of the Hillsborough families, Bishop James Jones proposed a duty of candour to address

“the unacceptable behaviour of police officers—serving or retired—who fail to cooperate fully with investigations into alleged criminal offences or misconduct.”

As has already been said, in June this year, the Daniel Morgan Independent Panel recommended

“the creation of a statutory duty of candour to be owed by all law enforcement agencies to those whom they serve”.

The chair of the panel, the noble Baroness, Lady O’Loan, said in this House that

“the creation of the duty of candour in matters such as this is vital for the integrity and effectiveness of policing”.—[Official Report, 22/6/21; col. 134.]

The report of the independent panel was frankly withering on the events that had influenced its recommendation. My thoughts, and I am sure those of all in the House, are with the Morgan family and the Hillsborough families, who have shown such courage and been denied justice for some three decades.

When the Daniel Morgan Independent Panel report was published, the shadow Home Secretary called on the Government to publish a detailed timetable for when the report’s recommendations would be implemented, and called for urgent action on the long-overdue establishment of a duty of candour. In answer to questions in June from Members on all Benches of this House, the Minister responded that the Government were considering the duty of candour as part of their response to Bishop James Jones’s report and wanted to engage with the families before publishing a response. In the House of Commons, the Home Secretary said of the duty of candour that

“work is taking place across Government on how those wider issues will be addressed, but, at the same time, there is absolutely no justification for delay.”—[Official Report, Commons, 15/6/21; col. 130.]

We now have before us a flagship home affairs and justice Bill from this Government in which they have found space to prioritise offences against statues and being noisy while protesting. Where is the prioritisation of the reforms needed in light of these failures of justice? What engagement has occurred with the Hillsborough families and the family of Daniel Morgan since June? Can the Minister confirm tonight that the Government will accept the recommendation for the duty of candour? How developed are the Government’s plans to bring forward reform, and when can Parliament expect to see legislation?

It is for the Government to ensure and prove to both the families and the public that these appalling failures of justice can never happen again. Frankly, it is time for the Government to cease dithering; it is time for the Government to act.

Criminal Justice System: Equal Treatment of Deaths and Injuries

Lord Rosser Excerpts

Thursday 24th June 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am aware of that case, and I send my condolences to the family of Ryan Saltern. Failure to stop offences are often referred to as hit and runs, but that is not really an accurate reflection of the offence. The offence is designed to deal with the behaviour relating to the failure to stop; it is not an alternative route to punish an offender for a more serious but not proven offence. As I said, where there is evidence that the driver caused harm, there are other offences they can be charged with, and the failure to stop will then be an aggravating feature in the sentencing for that offence.

[Lord Rosser (Lab) [V]]

One way of addressing the incidence and consequences of unacceptable driving is to change the culture among road users. Last year’s consultation on the interim review of the Highway Code focused specifically on improving safety for vulnerable users—particularly cyclists, pedestrians and horse riders—and asked respondents for their views on introducing a hierarchy of road users. If introduced, this would ensure that those road users who can do the greatest harm have the greatest responsibility to reduce the danger or threat they may pose to others. Do the Government support a hierarchy and the prioritisation of road users in this way? When will the Government publish their response to the consultation, which closed eight months ago?

[Lord Wolfson of Tredegar (Con)]

My Lords, some of the points the noble Lord has raised are really for my colleagues in the Department for Transport, and I will pass those on. But he is absolutely right that culture is an important part of this debate; we can all think of examples around the world where there is a different culture in the way that road space is used. Of course, one has to remember that everybody who uses the road is subject to the Highway Code. That includes both the drivers of juggernauts and, if I may say so, cyclists, who sometimes appear to think that they are subject to the pavement code.

Domestic Abuse Bill

Lord Rosser Excerpts

Wednesday 21st April 2021 Lords Chamber

[Lord Paddick (LD)]

My Lords, I start by joining other noble Lords in paying tribute to my noble friend Lady Hamwee, who has been a passionate campaigner on these issues. I was going to say that she had stepped down from the Front Bench, but she has stepped up to bigger and better things in the House, and I personally will miss her greatly.

Lords Amendment 41 would have provided a route for victims of domestic abuse who are subject to immigration control to be given the opportunity to apply for leave to remain—not given leave to remain but given the opportunity to apply—by allowing them to stay in the UK pending the outcome of their application and to be supported financially during this time. Many of these victims are reliant on their abusive partner for support, making escape from domestic abuse almost impossible. Initially, the Government said the reason they objected was that they thought people might falsely claim to be victims of domestic abuse in order to seek leave to remain in the UK. Again, we have to ask: what is more important, protecting vulnerable victims of domestic abuse or immigration control? The Commons reason is simply

“Because the Amendment would involve a charge on public funds”.


The right reverend Prelate the Bishop of Gloucester has presented an alternative amendment, a very modest amendment, that seeks to address all the concerns the Government have previously expressed. There is a £1.5 million 12-month pilot supporting such victims of domestic abuse, and the amendment simply ensures that, during the pilot period, victims are not turned down because of a lack of funds. It then sets a timetable for the introduction of a permanent solution once the results of the pilot have been evaluated. The amendment comprehensively sets out the evidence necessary to show that someone is a genuine victim of domestic abuse. This alternative amendment is the very least the Government should do for these particularly vulnerable victims of domestic abuse, and we would support the right reverend Prelate were she to divide the House.

Lords Amendment 43 would have ensured that all victims of domestic abuse received equal protection and support irrespective of their status, including their immigration status. The Commons reason for disagreeing was that it would

“involve a charge on public funds”.

Indeed it might—but it would also have been a significant step towards the UK finally being able to ratify the Istanbul convention. The noble Baroness, Lady Helic, has proposed an alternative amendment that would at least ensure that local authorities consider the needs of all victims, including migrant women, when they make strategic decisions about tackling domestic abuse. This cannot be the landmark Bill the Government intend it to be unless it puts the final pieces into place to enable the UK to ratify the Istanbul convention. I recall an expression my mother was fond of: “Don’t spoil the ship for a ha’porth of tar.”

I was hoping that this Bill could be, like the Modern Slavery Act, a magnificent piece of legislation of which all sides of the House could be justifiably proud. We have already vastly improved the Bill in this House; it would be a shame if we now left it less than watertight.

[Lord Rosser (Lab) [V]]

As we have heard, Lords Amendments 41 and 43 were both disagreed by the Commons because they would involve a charge on public funds. The Commons did not offer any further reason. The right reverend Prelate the Bishop of Gloucester and the noble Baroness, Lady Helic, have now tabled Amendments F1 and F2. The amendment from the noble Baroness, Lady Helic, provides that local authorities “must have regard” to Article 4(3) of the Istanbul convention when they are preparing their strategy for accommodation-based services under the Bill. Article 4(3) of the convention provides that protection for victims must be secured without discrimination based on any ground such as race, religion or migrant status. We support the aim of this amendment, which also serves to remind the Government of their commitment to ratify the vital Istanbul convention, for which they have not yet set a timeframe. Perhaps we will hear something definite on this point in the Government’s response to this amendment.

Domestic Abuse Bill

Lord Rosser Excerpts

3rd reading
Wednesday 24th March 2021 Lords Chamber

[Lord Rosser (Lab) [V]]

My Lords, along with my noble friends Lord Kennedy of Southwark, Lady Wilcox of Newport and Lord Ponsonby of Shulbrede, I will take this opportunity to thank the noble Baroness, Lady Williams of Trafford, the noble Lords, Lord Wolfson of Tredegar and Lord Parkinson of Whitley Bay, and the Bill team for the patience and willingness to listen that they have shown throughout the passage of this Bill—not just in the Chamber but in the very many meetings that have been held with noble Lords on issues raised in amendments, and in the debates that have taken place. There have been a significant number of instances when Ministers have acknowledged the arguments that have been made in support of amendments and accepted them, put down appropriate government amendments or given undertakings of progress towards the objectives being sought that did not require amendments to the Bill. Ministers deserve full credit for that, and for their willingness to consider the arguments presented.

We have also really appreciated the helpful and informative briefings we have received from outside organisations committed to addressing the issues covered by this Bill. Along with my Front-Bench colleagues, I thank Grace Wright in our office for all the extensive and invaluable work she has done, liaising with so many others involved with the Bill both in Parliament and outside, and keeping us fully briefed on the Bill and its amendments as it has progressed through this House.

There have been a significant number of occasions when this House has agreed amendments to the Bill against the advice of the Government. It remains to be seen what will happen when those amendments are considered by the Commons in what I fear will be a somewhat truncated debate in the other place. What has been interesting is the number of amendments that the Government have accepted, or that have been carried in this House, which have been led not by Front-Benchers but by Back-Benchers, Cross-Benchers and the Bishops’ Benches. That reflects the wide cross-party, Cross-Bench and Bishops’-Bench backing that there has been for so many of the issues debated during the passage of this Bill. It is a Bill that has had very little to do with party politics.

The Bill now goes back to the Commons, where I hope it will not just be the Lords amendments that have government support that will be fully considered. While much progress has been made, there is still scope for further improvement in, and addition to, the content of a Bill that is rightly regarded as a once-in-a-generation opportunity to address head-on the major issue of the unacceptable level of domestic abuse in our society.

We have talked about the Istanbul convention at some length during our debates. The stated purpose of the convention is preventing and combating violence against women and domestic violence. Turkey has just made a decision to annul its ratification of the convention and Poland appears set to follow. This is a major backward step. America under President Biden and European leaders have condemned Turkey’s action. Sadly, we cannot add our voice to theirs, because we have still not ratified the convention. Let us hope that by the time this Bill has had further consideration, completed all its parliamentary stages and become an Act, we will be in a position to ratify the convention in full, and no longer be outsiders.