Immigration (Age Assessments) Regulations 2023

Lord Sharpe of Epsom Excerpts

Monday 27th November 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations laid before the House on 14 September be approved.

Relevant document: 55th Report from the Secondary Legislation Scrutiny Committee, Session 2022-23 (special attention drawn to the instrument)

Amendment to the Motion

Moved by

Justification Decision (Scientific Age Imaging) Regulations 2023

Lord Sharpe of Epsom Excerpts

Monday 27th November 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations laid before the House on 13 September be approved.

Relevant document: 55th Report from the Secondary Legislation Scrutiny Committee, Session 2022-23 (special attention drawn to the instrument)

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

My Lords, I thank all noble Lords for attending this debate. The first of these instruments, the Justification Decision (Scientific Age Imaging) Regulations 2023, sets out the affirmative decision made by the Lord Chancellor and Secretary of State for Justice on the Home Office’s application to use ionising radiation, also known as X-rays, as a scientific method of age assessment for age-disputed individuals subject to immigration control.

The second instrument, the Immigration (Age Assessments) Regulations 2023, has been laid by the Home Office to specify scientific methods of age assessment, namely analysis of X-ray and MRI images of certain body areas. By specifying scientific methods in this instrument, a decision-maker will be required to take into account a refusal to consent to the specified methods without good reason as damaging to an age-disputed person’s credibility.

On the use of X-rays, I remind noble Lords that the Ministry of Justice, as the justifying authority, has determined the practice justified under the Justification of Practices Involving Ionising Radiation Regulations 2004.

A regret amendment has been tabled by the noble Baroness, Lady Brinton, against both statutory instruments, and therefore the debates have been grouped. The Ministry of Justice has made the justification decision independently from the Home Office, as required by the 2004 regulations. I am sure noble Lords will understand that I cannot speak to this justification decision, as it is imperative that the justification authority is functionally separate from all other persons concerned with the promotion or utilisation of the practice. However, I can speak to the process the Ministry of Justice undertook to make this decision.

I turn first to that instrument. Under the Justification of Practices Involving Ionising Radiation Regulations 2004, the Lord Chancellor has the powers as the nominated justifying authority to determine whether the individual or societal benefits of this practice outweigh the health detriments, and therefore whether it can be justified. Following a thorough statutory application, consultation and decision-making process, the justifying authority has determined that the Home Office’s proposed practice was a new class or type of practice and that this can be justified, subject to the following conditions.

The first condition is that scientific age assessment involving ionising radiation is limited to radiography of the third molar and/or of the hand and wrist only. The use of computed tomography, or CT, scans for the purposes of assessing age is not permitted. The second is that the results of radiography of the third molar and/or of the hand and wrist must be used to assess only whether there is more support of the claimed age of the age-disputed person, or the age that assigned social workers have assessed them to be following a Merton-compliant age assessment. A likelihood ratio approach must be used to compare the weight of evidence.

The Home Office has committed to ensuring that all exposures are appropriate under the relevant legislation. The Home Office is also committed to exploring the viability of non-ionising scientific methods of age assessment, with the aim of eliminating the use of ionising radiation in age assessments if and when the effectiveness of such alternative methods is validated. The justifying authority notes this commitment and encourages the Home Office to cease using X-rays when alternative methods are validated.

The Lord Chancellor wishes to thank the consultees for their detailed and wide-ranging contributions in helping him make his decision, and the Secondary Legislation Scrutiny Committee for its thorough scrutiny of this statutory instrument.

I turn now to the Home Office instrument—the Immigration (Age Assessments) Regulations 2023. These regulations are being introduced to improve our current age assessment process, which is under pressure from rising numbers of age disputes, and relate to the introduction of scientific methods of age assessment. Since 2017, there has been an upward trend in the number of unaccompanied children entering the UK. In 2019, 3,775 unaccompanied children applied for asylum. In 2022, this had risen by 39% to 5,242. There has also been a rise in the number of age disputes; between 2016 and June 2023, there were 11,275 age disputes raised and subsequently resolved following an age assessment, of which nearly half—49%, 5,551 assessments—found the individual to be an adult.

Age assessment is a complex and difficult task. Many unaccompanied young people claiming to be children arrive in the UK without official documentation. While some are undoubtedly under the age of 18, in many instances it is not clear-cut. It is an unfortunate reality that some individuals misrepresent their age to gain an unfair immigration advantage. The public would rightly expect us to strengthen our processes accordingly.

The introduction of scientific age assessments is intended to improve our age-assessment system by providing additional biological evidence to aid better informed and more thorough decisions on age. Scientific age assessment will be one piece of evidence used alongside the existing Merton-compliant age assessment process, which is a holistic, social worker-led assessment. Importantly, the UK is one of very few European countries that does not currently employ scientific methods of age assessment. These regulations pave the way to the UK being more aligned with international practices.

This instrument specifies scientific methods for age assessment purposes, which are magnetic resonance imaging of the clavicle and the bones of the knee and radiographs of the lower wisdom teeth and the bones of the hand and wrist. These images will be used to assess the skeletal and dental development, or maturation, of the bones and teeth. These methods have been recommended by the Age Estimation Science Advisory Committee.

Once scientific methods have been specified, where an age-disputed person refuses to consent, without reasonable grounds, to the use of those methods as part of the assessment of their age, a decision-maker must take into account that refusal to consent as damaging the age-disputed person’s credibility. This is referred to as “negative inference”. The damage to credibility included in this instrument is only for the purpose of deciding whether to believe any statement they made that is relevant to the assessment of their age, not for deciding the person’s credibility in their wider immigration claim.

The Home Office considers negative inference appropriate and proportionate to deter individuals who deliberately misrepresent their age in order to game the system. A refusal to consent to a specified scientific method of age assessment without reasonable grounds would not automatically preclude the individual being considered a child. That refusal would still need to be taken into account alongside other relevant evidence as part of a comprehensive, holistic age-assessment process by social workers.

Noble Lords should also note that there has to be reasonable doubt about an individual’s age for them to go through the age-assessment process and be reassured that those who are clearly children will be identified at the initial age-determination process at the border.

I should note that the Supreme Court judgment in relation to the UK’s agreement on the relocation of individuals to Rwanda bears no impact on the Immigration (Age Assessments) Regulations. Protecting genuine children, preventing abuse of the immigration system by those who knowingly misrepresent their age and improving our asylum system overall remain a priority for the Government.

I look forward to hearing the views of this House on the instrument before us today. I commend both sets of draft regulations to the House. I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will discard most of my speech because all the points I was going to make have been made articulately. We will support the noble Baroness, Lady Brinton, if she chooses to test the opinion of the House and I thank her for the thoroughness with which she introduced her amendment to the Motion. I agree with her that this SI is not yet ready to be put on the statute book.

The Minister set out the figures, which have been repeated a number of times as the debate has progressed. A number of questions were put to him about the issue of consent, the state of the European Convention on Human Rights, and answering the questions put by the Children’s Commissioner and other bodies which have expressed their extreme concern about the measures being put forward by the Government.

The noble Lord, Lord Murray, just intervened, giving examples of European countries which do some form of tested age assessment. However, this is of course a contested area in many European countries; we are not unique in this being a politically contested issue.

Noble Lords also made a point about the review mechanism that the Government propose to put in place so that, as this progresses—if indeed it does progress—the Government can keep an open mind about how effective it is and whether further changes in assessment methods need to be made. However, I want to conclude on a different point which no other noble Lord has made, and to talk slightly wider than the SIs themselves.

Last May, with my noble friend Lord Coaker, I visited the old RAF Manston airfield and the landing site, Western Jet Foil, in Dover harbour. I repeat my thanks to the noble Lord, Lord Murray, for facilitating that visit. What became apparent to me then is that all the political debate, including today’s debate, is about the vast majority of young men who are potentially claiming to be under 18, and the impact that has on them. That is the totality of the political debate. However, there is another group of young men, which was drawn to my attention, who appear to the officials to be under 18 but are claiming to be adults. They are doing that because they want to work, either legally or illegally. Many of them will have started working in their home countries when they were 14, and they will have had a few years work under their belt and are coming here to better their prospects.

What tracking is there of those young men? I have raised this issue with the noble Lord, Lord Murray, and as far as I am aware, there is no tracking of them. Whether they are more likely to abscond once they go into the adult system or whether the Home Office tracks them at all, it is a significant, not an insignificant cohort. It was drawn to my attention when I made that visit and I will be very interested to hear the noble Lord’s answer, maybe by letter, on how those young men are tracked.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for their contributions to this interesting and insightful debate. I thank the noble Baroness, Lady Brinton, for her regret amendment, which I will obviously refute, because the introduction of scientific methods of age assessment is an innovative approach for the UK. It is entirely right that the Government take action to disincentivise individuals from deliberately misrepresenting their age in order to game the system, as well as to safeguard and promote the welfare of genuine children, who have a need to access children’s services. Scientific methods provide additional evidence and create a more consistent system, and there is nothing inhumane about those objectives. I hope that noble Lords will consider each regulation on its merits, and I will do my best to answer all the questions. If I miss any, I will endeavour to write.

The question of accuracy has come up. Determining the age of a young person is an inherently difficult task. The Home Office is aware that there is no current single age-assessment method, scientific or not, that can determine an individual’s age with precision. In answer to the noble Lord, Lord German, there is a risk of harm to both the age-disputed individual and to the public interest through misclassifying children as adults, or adults as children, which the noble Lord, Lord Ponsonby, referred to—I will come back to this. That is why the UK Government are taking steps to improve the robustness of the age-assessment process. Scientific age assessment will be completed alongside the current Merton-compliant age assessment, and the age-assessment process will remain a holistic assessment. The well-being of the individual will continue to be at the forefront. I am happy to say categorically to the noble Baroness, Lady Lister, that scientific methods will not replace, but will be used alongside, Merton. The noble Lord, Lord Winston, asked me how accurate these methods are. For X-rays, I do not know—I will find out—but for teeth X-rays it is two years either side. I will come back to this in more detail in a second.

On international comparators, to which my noble friend referred, the Home Office believes that the negative credibility inference in respect of someone’s claimed age is necessary, logical and proportionate where a person refuses to undergo a scientific age assessment without good reason. It is important to note that negative consequences, such as automatic assumptions, are applied with variations by a number of ECHR signatories, including the Netherlands, Luxembourg, Poland, Slovakia and the Czech Republic. The UK is an outlier as one of the very few European countries that do not currently employ scientific methods such as X-rays as part of age assessments.

On our plans for operationalisation, the Home Office wants to specify these methods as soon as possible to pave the way for the introduction of scientific age assessments. The increasing number of age-disputed young people presents safeguarding challenges and puts additional pressure on children’s services, which should be accessed only by genuine children. This is a new and complex process that the Government need to get right. The full plans for integrating scientific age assessments into the existing processes will be set out in good time, and full guidance and assessments will be provided. For now, the Home Office has welcomed the report from the Age Estimation Science Advisory Committee and is making clear steps to proceed with the recommendations and consider others.

Consent was raised by a number of noble Lords, including the noble Baronesses, Lady Brinton and Lady Lister, the noble Lord, Lord Kerr, and the right reverend Prelate the Bishop of London. To address the concerns regarding consent, I assure all that no X-ray or MRI image can or will be taken without informed consent from the individual. The Home Office will ensure that the individual has capacity, fully understands the process and is communicated to in a child-friendly and clear way. Interpreters will be available to assist with understanding information, and documents will be translated into a language the individual understands. If the individual refuses to consent to a scientific age assessment, they will continue to proceed with the current Merton-compliant age assessment. Those who are clearly children will be identified as part of the initial age assessment and not included in the cohort for an age assessment.

It is the Home Office’s policy to refer individuals for an age assessment only when there is some doubt about their age—specifically, where that individual’s physical appearance and demeanour do not very strongly suggest that they are significantly over 18. This threshold is set purposefully high to ensure that individuals can be given the benefit of the doubt. As a result, only those whose ages are in genuine doubt would be referred for this scientific age assessment.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the Minister has repeated a statement he made in his introduction about it being only the clear-cut cases. Can he explain how, in the year to August, in just one city—Leeds—30 children arrived, having been assessed as adults by the Home Office on initial arrival, and were immediately identified by people in Leeds as children? Will those children not face the potential of ionising radiation and other medical procedures as a result of this regulation?

[Lord Sharpe of Epsom (Con)]

I am not familiar with the case that the noble Baroness refers to, so I am afraid I will have to look into it.

Individuals will be assessed for their fitness to undergo scientific age assessment, which will include consideration of both mental and physical health. The individual will not undergo scientific age assessment if they refuse to consent. Reasonable grounds for refusal will be set out in guidance and considered on a case-by-case basis. Appropriate adults, translators and others will be available to support the young person. If a young person is assessed as lacking the capacity to consent, they will not undergo any such methods and a negative credibility inference will not be taken.

Provisions under the Nationality and Borders Act 2022 allow for decision-makers to make a negative inference. As I have said, the Home Office considers negative inference to be proportionate to prevent individuals deliberately frustrating the system. There is precedent in other legislation of negative consequences being applied where an individual refuses to submit to a medical examination. For example, an individual may be asked to undergo a medical examination to determine their eligibility for employment and support allowance. If they fail to undergo such an assessment, they will be treated as ineligible. Therefore, consent can still be informed and freely given even if there is a negative consequence for a refusal to give that consent.

It is important to note that taking a negative inference from a refusal to consent does not result in an automatic assumption that the individual is an adult. Rather, the negative inference is taken into account as part of the overall decision on age. A decision-maker can still assess an individual to be a child following the holistic age-assessment process, even if they refuse to consent to scientific methods without good reason.

I will answer the questions from the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Hamwee, about monitoring and review. The Ministry of Justice will monitor and review the Home Office’s use of X-rays approved by this instrument and compliance with the conditions as per Regulation 10 of the Justification of Practices Involving Ionising Radiation Regulations 2004.

I would like to reassure the House that, as this is a new practice in the UK, the Home Office will monitor and review the policy to evaluate its success and make any changes necessary for its effective operationalisation. The Home Office will not do this in isolation but will continue to seek advice from the Age Estimation Science Advisory Committee and key stakeholders to support the process. Quarterly datasets including age disputes are already published on GOV.UK and, when scientific methods of age assessment are introduced, the Home Office will ensure that the relevant statistics are published alongside them.

The noble Baroness, Lady Brinton, questioned whether these regulations should be made before a full impact assessment and costings have been laid before Parliament. As I stated, scientific methods will be integrated into the current age-assessment process. A full impact assessment has not been produced at this point as it would not provide the rigour of economic value required at the early stage. The Home Office recognises the importance of transparency—please be assured that a full impact assessment will be prepared when appropriate, as my right honourable friend the Immigration Minister said in the other place.

I will go into the costs in a little more detail. As I have said, we could not provide the rigour of economic value that the impact assessment would require. Instead, the Home Office has produced an economic note that pertains to the narrow focus of the SI—the impact of introducing the specified methods for age-assessment purposes. We have decided not to publish this yet, as the information provided would be isolated from wider plans; it is the Home Office’s view to wait until we have an appropriate level of detail to better reassure and inform the public of our plans. As policy and operational development continue, the Home Office will take a view on when it is appropriate to produce the full impact assessment.

[Lord Kerr of Kinlochard (CB)]

I am rather surprised that the Minister has repeated the bits of the Home Office written evidence that struck me as a bit odd. The clue, surely, to the timing of an impact assessment is in the name: impact. It should be there at the start. We are not terribly interested in an impact assessment two or three years down the line. We would have liked to have one today.

[Lord Sharpe of Epsom (Con)]

I take the noble Lord’s point; obviously, I will take it back to the Home Office and make sure that it is well understood.

On the use of X-rays, I remind the House that the Ministry of Justice has determined the practice is justified under the Justification of Practices Involving Ionising Radiation Regulations 2004. The Ministry of Justice made this decision to justify the practice independently from the Home Office, as they are functionally separate on the policy of age assessment as required by the 2004 regulations.

Your Lordships will know that X-ray scans are commonly used in the UK for medical purposes by doctors and dentists. Although age assessment is for non-medical purposes, images will be taken by qualified professionals who are trained to minimise exposure to ionising radiation and any other potential risks. We expect all professionals to abide by their own professional guidelines, as well as any set out in Home Office guidance, but medical professionals are required by the relevant legislation for ionising radiation.

The Age Estimation Science Advisory Committee suggests that any risk associated with this low level of exposure to ionising radiation is minimal when compared to the benefits of swifter, more informed age assessment in terms of both safeguarding and well-being.

[Lord Winston (Lab)]

The word “benefits” applies to the subject who is being X-rayed, does it not? Can the Minister tell us what the benefits to that subject are because it does not apply otherwise?

[Lord Sharpe of Epsom (Con)]

I am coming on to some more of the noble Lord’s more detailed questions; I will endeavour to answer that question in a second.

The Ministry of Justice has undertaken a detailed consideration process to ensure that the use of X-rays is proportionate and justified. The noble Lord asked how we will ensure that the use of these scientific methods is ethical and not harmful to children. We have a statutory commitment to safeguard the welfare of children. One of the reasons for introducing scientific age assessment is to better protect against adults being treated as children in order to ensure that vulnerable children can swiftly access the support that they need. The use of ionising radiation is, for instance, highly regulated by the Justification of Practices Involving Ionising Radiation Regulations 2004, which require demonstration that the individual or societal benefits of their use outweigh any health detriments. For the methods that the Age Estimation Science Advisory Committee proposes, the ionisation risks are extremely low.

The Home Office will ensure that any methods used comply with all regulatory requirements and standards. AESAC suggests that radiation exposure is minimal when compared to the benefits of a more informed age assessment. For the purposes of the methods that the committee proposes, the ionisation risks are extremely low, as I have said. They are typically less than 0.001 of a millisievert for an extremity X-ray, such as the wrist, or 0.2 of a millisievert for a dental—I will not be able to pronounce this—X-ray. Those radiation risks relate to something like less than two hours on an international flight, I believe.

I turn to the AESAC advice and the automatic assumption. On the Secondary Legislation Scrutiny Committee’s concern that the application of negative inference is contrary to advice provided by the Age Estimation Science Advisory Committee, let me assure the House that this is not the case. In answer to the noble Baroness, Lady Hamwee, I should also say that the Government’s Chief Scientific Adviser, Patrick Vallance, and the Chief Medical Office, Chris Whitty, have supported this. The scientific advisory committee recommended that no automatic assumption or consequence should result from a refusal to consent. Taking a negative inference does not result in an automatic consequence; rather, the negative inference is taken into account as part of the overall decision.

I forgot to address the points raised by the noble Lord, Lord Winston, about various protected characteristics: environmental factors, race, diet and so on. We are conscious, of course, that methods to assess age such as bone development are affected by factors such as ethnicity, body mass, sex, puberty and so on. We are seeking scientific advice to explore this issue further and any steps we can take to mitigate these impacts. The Age Estimation Science Advisory Committee’s advice suggests that, although skeletal maturation may differ slightly depending on ethnicity, there is also some evidence to suggest that differences in nutritional status, disease and social status may have more influence on maturation timings. In addition, dental development is less affected by such socio-economic factors; that is one of the reasons why the AESAC recommends using multiple biological areas of interest, which the Home Office is proposing to do.

I want to take this opportunity to thank the Age Estimation Science Advisory Committee for its report because, as I have set out, the science and analysis is being used as per the committee’s recommendations. The Home Office will not use the scientific methods to determine an exact age or age range; rather, it will use the science to establish whether the claimed age of the age-disputed person is possible. It is key that methods used for age assessment have a known margin of error. Combining assessment of dental and skeletal development of multiple body areas is important as it increases the accuracy of the approach. The Age Estimation Science Advisory Committee advocates for a likelihood ratio method, which offers a logical and consistent summary of the evidence and permits greater confidence in the assessment of whether the claimed age is possible. The likelihood ratio is widely recognised as the appropriate way to summarise evidence, and this approach offers the best way forward for the introduction to scientific age assessments to strengthen our system.

The noble Lady Baroness, Lady Lister, asked who we have consulted. The Ministry of Justice consulted all the statutory consultees listed under the regulations, including the UK Health Security Agency and the Health and Safety Executive. The full list can be found in our decision document. In the review of the consultees, the Health and Safety Executive, the Office for Nuclear Regulation, the Environment Agency, the Scottish Environment Protection Agency, Natural Resources Wales and the Department of the Environment (Northern Ireland) have confirmed that this application falls outside their regulatory interests. However, the UK Health Security Agency, the Health and Safety Executive and the Food Standards Agency advise the following:

“The decision to use X-ray imaging appears well considered and appropriate to minimise any individual’s radiation exposure”.


All exposures to ionising radiation will fall under the remit of the Ionising Radiation (Medical Exposure) Regulations, which place many responsibilities on those carrying out exposures. There should be careful consideration to ensure that the contracted parties carrying out the exposures conform to these regulations and that the predicted doses for both dental and wrist X-rays are appropriate estimates.

I have probably spoken for long enough—I have definitely spoken for long enough. I owe the noble Lord, Lord Ponsonby, an answer to his question about children pretending to be or behaving as adults. I will come back to him on that; I do not have the detail to hand, as your Lordships can imagine. I think I have addressed the majority of the issues that were brought up. As I said earlier, I am grateful for noble Lords’ constructive and helpful suggestions and questions. I trust that noble Lords will now recognise the need for this instrument; I assure them that the Government are fully committed to working towards a better-informed and more consistent age-assessment process. This instrument is essential to that aim; I therefore commend it to the House.

[Baroness Brinton (LD)]

My Lords, I thank the Minister for his response. Unfortunately, I fear that many of the questions we asked across the House were not responded to. I heard very clearly that this has been designed as an innovative approach to discourage applicants but I also heard a lot of “We need to wait until we have more detail before we can tell you the answers to the questions that we want”.

I refer right back to the beginning of this debate. The noble Lord, Lord Murray, gave an absolute assurance at the Dispatch Box that the regulation-making power would not be exercised until the science is sufficiently accurate to support providing for an automatic assumption of adulthood. These SIs do not do that—worse, the Government say that they know they are not ready. On that basis, I wish to test the opinion of the House.

Metropolitan Police Reform

Lord Sharpe of Epsom Excerpts

Monday 27th November 2023 Lords Chamber

[Lord Lexden]

To ask His Majesty’s Government what assessment they have made of the progress of reform within the Metropolitan Police.

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

My Lords, reform of the Metropolitan Police Service is vital and the Government fully support the commissioner’s plan, A New Met for London. It is the responsibility of His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to assess force performance improvement and for the Mayor of London to hold the commissioner to account for the progress being made.

[Lord Lexden (Con)]

My Lords, I called on the Government exactly a year ago to give Sir Mark Rowley the stronger disciplinary powers for which he was asking in order to root out crime and serious abuse in the Met, which so shocks our country. Instead of taking action, the Government instituted a review. When will Sir Mark finally get the powers he seeks? Must not a thorough clean-up of the Met include calling to account the police officers who failed so grievously during Operation Midland, that infamous investigation that unforgivably hounded two great public servants, Lord Bramall and Lord Brittan? Finally, is it not astonishing that, after several years, the Independent Office for Police Conduct has only now got round to just one serious investigation arising from Operation Midland? That is into the conduct of Mr Steve Rodhouse, the man in charge of the disgraceful operation. On past form, this could drag on for years while Mr Rodhouse enjoys a full salary. Do not those who have suffered deserve better than this?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, my noble friend is right to point out that we launched a review. That review was concluded and the results were published in September. Noble Lords will be aware of the contents of the review. As regards introducing the powers that Sir Mark clearly needs and has asked for, some of that will require primary legislation; it will form part of the Criminal Justice Bill, which is due to reach Committee stage in the Commons and be debated in January. Some of it will require secondary legislation. We expect that the first tranche of changes will see amendments to the Police (Conduct) Regulations 2020, which should be implemented around April; the second tranche, which covers wider misconduct, vetting and performance measures, is expected to be introduced around June.

[Lord Browne of Ladyton (Lab)]

My Lords, resignations are now overtaking retirement as the biggest reason for officers leaving the Met. This year, every month but May has seen more resignations, and the equivalent of 100 full-time officers leaving. Given the importance of institutional memory to policing, what assessment have the Government made of the reasons for this ongoing exodus? Consequent on that assessment, what discussions has the new Home Secretary had with the Mayor of London and the Met’s commissioner about the challenges inherent in retaining Met personnel?

[Lord Sharpe of Epsom (Con)]

My Lords, the first thing to say is that officer strength at the moment is 34,899—at least it was in March 2023—which is up from 33,367 in March 2010; that is the highest number of officers the Metropolitan Police Service has had to date. As regards the conversations of the Home Secretary, the Home Secretary and the Policing Minister have met with the commissioner in the past two weeks. We fully support HMICFRS in identifying areas of poor performance and have seen the commissioner act swiftly to set out his planned improvements, which are necessary, through the plan that I just mentioned, A New Met for London. The Home Office is also a member of the HMICFRS police performance oversight group. We monitor progress and ensure that the Metropolitan Police gets the support it needs from across the policing sector to improve as quickly as possible.

[Baroness Butler-Sloss (CB)]

My Lords, having heard the Minister’s dates for secondary and not primary legislation, why on earth is it taking so long?

[Lord Sharpe of Epsom (Con)]

The noble and learned Baroness asks me a very good question; I am afraid that I do not understand the inner workings of the secondary legislation and SI process, but I will find out.

[Baroness Doocey (LD)]

My Lords, last month, the police watchdog published an urgent report warning of the serious risks posed to London’s most vulnerable children by the Met’s ongoing failures in child protection. This issue was first highlighted in a damning report by HMICFRS six years ago. It cannot be allowed to continue. Have the Government met the commissioner and the Mayor of London to demand action now—that is, not in a month’s time or a year’s time? This is serious and it must be sorted out now.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

The noble Baroness is quite right that this problem dates back. As she pointed out, in October, HMICFRS issued two accelerated causes of concern due to significant failures in how the Metropolitan Police responds to children reported missing and also to those at risk of child and sexual criminal exploitation. As I mentioned in a previous answer, the Home Secretary and the commissioner have met a couple of times over the past week, as has the Policing Minister. HMICFRS publishes quarterly reports on the progress that the Met is making with regard to child protection. In regard to the two recommendations that have recently been mentioned, HMICFRS has provided two recommendations encouraging swift and tangible progress on those issues to the Metropolitan Police with timelines for delivery by the end of this year.

[Lord Woodley (Lab)]

My Lords, the recent increase in the number of massive demonstrations in central London is a positive sign of a politically engaged population. However, they place huge extra pressure on our police, with many officers—perhaps hundreds if not thousands—being drafted in from right across the country to help. What assessment has the Minister made of the impact on police capacity, effectiveness and morale?

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a good point. I thank all the officers from around the country who have been drafted in to assist with the policing of these protests. I was very pleased to see that, at the weekend, the protest passed largely without too much trouble. As regards morale, that would be for the commissioner to share with us but, as I said, conversations are current, topical and ongoing.

[Lord Cormack (Con)]

My Lords, I revert to a point made by my noble friend Lord Lexdon in his admirable Question. Two Members of your Lordships’ House who are now sadly no longer with us, Lord Brittan and Lord Bramall, were traduced in an almost unimaginable way as a result of Operation Midland. I know that noble Lords throughout the House feel very strongly on this. Why can there not be, even at this stage, a proper investigation into Operation Midland, including precisely what went wrong and why?

[Lord Sharpe of Epsom (Con)]

My noble friend raises an interesting subject. It has been raised with me at this Dispatch Box 14 times over the past two years. I am afraid that my answer is not going to change. It will remain consistent across those 14, now 15, answers: the Government have no plans to interfere in this.

[Lord Coaker (Lab)]

My Lords, the noble Lord, Lord Lexden, made an important point about serious misconduct, as did the noble and learned Baroness, Lady Butler-Sloss. The Minister said that he was going to take it back. This is of extreme urgency. If the Metropolitan Police is to command confidence and trust, it will take two years to deal with the approximately 1,000 police officers who are suspended or on restricted duties. The public have to know that those 1,000 officers and however many are uncovered by the commissioner will be dealt with quickly and speedily according to new misconduct regulations because the current ones seriously do not work. Can the Minister tackle this as a matter of urgency?

[Lord Sharpe of Epsom (Con)]

I agree with the noble Lord that it is a matter of urgency—of course it is—but it is also urgent that we get it right and make sure that all the possible unintended consequences are dealt with well in advance of implementing what are in some cases new, pretty draconian regulations, particularly with regard to how police officers might lose their careers. It deserves careful thought rather than coming back to the Dispatch Box and unpicking mistakes that might be made because we acted in haste.

[Lord Rooker (Lab)]

Can I ask Minister about his answer to the noble and learned Baroness, Lady Butler-Sloss? My understanding is that primary legislation is drafted by parliamentary counsel and that statutory instruments are drafted by the department’s lawyers. So what is the problem inside the Home Office? It is in charge of the lawyers there; it is not parliamentary counsel. It ought to be quicker than it is at the moment.

[Lord Sharpe of Epsom (Con)]

That is perhaps the case but, of course, we still have to find parliamentary time for these things.

[Lord Bach (Lab)]

My Lords, why do we have to wait for the Criminal Justice Bill before the statutory instruments can be produced in this particular case? Could we not move to a statutory instrument straightaway so that this long delay, which seems to be all-pervasive here, can at least be shortened to an extent?

[Lord Sharpe of Epsom (Con)]

I would very much like to see it shortened. I do not know the answer to that but I will come back.

Refugees and Asylum Seekers: Safe Routes

Lord Sharpe of Epsom Excerpts

Wednesday 22nd November 2023 Lords Chamber

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

My Lords, there are no provisions in our Immigration Rules to enable someone to travel to the UK to seek asylum or temporary refuge. The UK welcomes vulnerable refugees, including children, directly from regions of conflict and instability through our global resettlement routes, the UK resettlement scheme, community sponsorship and the mandate resettlement scheme. We also have bespoke routes responding to crises in Ukraine and Afghanistan and the Hong Kong BNO visa route.

[Lord Dubs (Lab)]

My Lords, I am grateful for the Answer, but is it not the truth that virtually every safe and legal route to child refugees has been closed by the Government? Perhaps the Minister will not recall, but some years ago I was given assurances both privately by Ministers and in the House that the Government would not close down safe and legal routes. Why are they not willing to do that?

[Lord Sharpe of Epsom (Con)]

My Lords, I do not think it fair to say that there are no safe and legal routes. Since 2015, we have offered a safe and legal route for over half a million people. This includes over 28,600 refugees, including 13,800 children, via the refugee resettlement schemes with the UNHCR. We are the fifth largest recipient of UNHCR-referred refugees and, in Europe, we are second only to Sweden.

[Baroness Meacher (CB)]

My Lords, can the Minister explain exactly what accessible facilities are available in a country such as Afghanistan for someone facing persecution to seek asylum in this country?

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Baroness will be aware that the situation on the ground in Afghanistan is very complicated—I would imagine my noble friend who answered the previous Question would be able to shed more light on exactly how complicated. However, as the noble Baroness will also be aware, we have resettled a vast number—well, not vast, but a large number—of people from Afghanistan. By the end of June 2023, approximately 9,800 people had been granted settled status under the ACRS, including over 4,600 children, and we provide local authorities with substantial funding. Since ARAP opened in April 2021, we have relocated over 12,200 people to the UK, including over 6,100 children. We know there is more to do, particularly with those currently still stuck in Pakistan, but we are working at pace on that.

[The Lord Bishop of St Albans]

My Lords, in May 2021, recognising the need to speed up the applications for child asylum seekers, the Government set up two dedicated caseworking hubs to try to process these claims more quickly. What assessment, two and half years on, has been made of the success of these dedicated hubs, and what more could be done to speed up the claims of young people as they seek asylum?

[Lord Sharpe of Epsom (Con)]

My Lords, as I understand it, those hubs have worked very well. There were 5,186 asylum applications from unaccompanied asylum-seeking children in the year ending June 2023—a similar number to the year ending June 2022. There were 6,229 initial decisions relating to UASCs in the year ending June 2023, some 78% of which were grants of refugee status or humanitarian protection. The statistics bear out the fact that they are working well.

[Lord Scriven (LD)]

My Lords, evidence shows that refugees will choose official routes over smugglers, where they represent a realistic alternative. Therefore, to smash the smugglers’ deadly trade, will the Government look at piloting a refugee visa, as outlined in a report by Safe Passage?

[Lord Sharpe of Epsom (Con)]

My Lords, no, I am afraid the Government are going to be consistent in this particular regard. As I said earlier in my initial Answer, there is no provision within our Immigration Rules for somebody to be allowed to travel to the UK to seek asylum or temporary refuge, so I do not think that visa is on the table.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, since the passing of the Illegal Migration Act, how many children have come over on small boats, how many are now subject to removal provisions and how many made those crossings unaccompanied?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not have those statistics. I will write to the noble Lord.

[Lord Singh of Wimbledon (CB)]

My Lords, I have seen figures that suggest that those who come in small boats to seek asylum constitute less than 5% of net annual immigration. Can the Minister explain why the Government are obsessed with trying to exclude those fleeing persecution and seeking refugee status in this country, while ignoring the Christian teaching of welcoming refugees?

[Lord Sharpe of Epsom (Con)]

The answer is twofold. First, we have welcomed over half a million people, so that is very much a vindication of the Christian principle. Secondly, we are not obsessed with the asylum seekers themselves; we are obsessed with putting criminal gangs out of business, and I make no apology at all for that.

[Baroness Lister of Burtersett (Lab)]

My Lords, the Minister, in a rather throwaway remark, acknowledged there are still children from Afghanistan who are stuck in Pakistan. Can he give us any estimate of just how many children, who should have been able to come to the UK because they are entitled to on the routes set up, are stuck there?

[Lord Sharpe of Epsom (Con)]

I apologise if it sounded like a throwaway answer, but I do not think it was. I am afraid I cannot give you that information, and I do not think it would be wise to do so.

[Lord Trefgarne (Con)]

My Lords, may I ask the same question that I asked yesterday and to which I got no reply? Is it the case that the Falkland Islands are being considered as an alternative to Rwanda?

[Lord Sharpe of Epsom (Con)]

My Lords, I am afraid that I have to go back to my answer from yesterday. I have read the newspaper reports. I have no particular knowledge of whether the Falkland Islands are being considered or not; I will endeavour to find out.

[Baroness Hussein-Ece (LD)]

My Lords, can the Minister confirm whether the reports are true that there are at least 100 unaccompanied child refugees in hotels at present, despite this being declared unlawful by the courts?

[Lord Sharpe of Epsom (Con)]

My Lords, I do not think that it was declared unlawful by the courts. The fact is that there were some issues with regards to a particular county, and, as far as I understand it, the courts basically reaffirmed that there is a statutory duty on local authorities to look after unaccompanied asylum-seeking children. In terms of the support that is available to those councils, we have made a considerable amount of money available, and we are working very closely with the councils that are involved in order to make that happen.

[Lord Kerr of Kinlochard (CB)]

My Lords, why do the Government continue to turn down repeated French offers to facilitate our establishing a processing centre for asylum seekers in France?

[Lord Sharpe of Epsom (Con)]

My Lords, I do not know that that is true. I have not seen any evidence that we have turned down French offers. I will investigate again, and if I am wrong, I will definitely correct myself.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, referring to the Question from my noble friend concerning young people stuck, as she put it, in Pakistan, to which he said he did not have any information; he did not volunteer to try to find any. Can he do so?

[Lord Sharpe of Epsom (Con)]

My Lords, the thing with the Pakistan situation is that we are involved in negotiations with the Pakistani authorities about getting these people out. I think the priority has to be to get them out as safely as possible and as quickly as possible, rather than worrying too much, at this point, about exactly how I report the statistics to this House. I will do so, but I want to make sure those people get out safely.

[Lord Cormack (Con)]

My Lords, my noble friend has said he will follow up on the question of the noble Lord, Lord Kerr, of a moment or two ago. Would he agree with the noble Lord, Lord Kerr, that that would be by far the better solution?

[Lord Sharpe of Epsom (Con)]

I am afraid that is very much above my pay grade.

[Baroness Blower (Lab)]

Some months ago, in a debate on the situation in Sudan, I asked the relevant Minister what consideration had been given to opening a safe and legal route from Sudan, given the situation in that country. Has any further consideration has been given to the situation in Sudan, and whether we can expect to see a safe and legal route anytime soon?

[Lord Sharpe of Epsom (Con)]

My Lords, there have been a number of petitions and general requests to look at very specific safe and legal routes. As I understand it at the moment, there are no plans to adopt any for any specific countries, but I am sure they are being kept under review.

[Lord Lilley (Con)]

My Lords, does my noble friend agree that all those coming by small boats are coming from a safe country, France, and that it is absurd for us to suggest that they are all coming from an unsafe country? One of the reasons they may be wanting to leave France to come here is that France refuses asylum to three times as high a proportion as we do. Can my noble friend explain why that is?

[Lord Sharpe of Epsom (Con)]

I will certainly confirm that France is a safe country. How the French asylum system works is, I am afraid, well beyond my knowledge.

[Baroness Chakrabarti (Lab)]

Returning to the issue of children in hotels, last summer, the High Court found Home Office practice in relation to housing vulnerable unaccompanied children in hotels to be derelict. Can the Minister inform the House what the response is to that High Court decision?

[Lord Sharpe of Epsom (Con)]

I have tried to by saying how we are working with the councils that are specifically involved in those decisions. If I can get any more details together, I will definitely come back to the noble Baroness on that.

Rwanda: Asylum Arrangements Treaty

Lord Sharpe of Epsom Excerpts

Tuesday 21st November 2023 Lords Chamber

[Lord Goldsmith]

To ask His Majesty’s Government what plans they have for ratification of the proposed asylum arrangements treaty with the government of Rwanda, as announced by the Prime Minister on 15 November; and whether they intend the treaty to be subject to scrutiny by Parliament for 21 days under the provisions of the Constitutional Reform and Governance Act 2010.

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

My Lords, the Government will lay a treaty before both Houses of Parliament in due course. This will enable Parliament to consider Rwanda as safe, in conjunction with new legislation announced by the Prime Minister. We will follow standard procedure as per the CRaG Act.

[Lord Goldsmith (Lab)]

I am grateful for that Answer and for the confirmation that this time, the treaty will be put through the CRaG process. That will mean that Parliament will be able to scrutinise the agreement and consider the relevant policy considerations, and indeed the financial implications, unlike the memorandum of understanding, which the International Agreements Committee of this House previously said was deeply concerning because that scrutiny was not available. Can the Minister also tell us when the CRaG notice will be given so that that process can start, and when the relevant Minister will come to the committee to give evidence?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not have that detail because the Bill has yet to be presented to Parliament. However, as I understand it, the timeframe is 21 days after laying, when both Houses are sitting, for the treaty process to take effect.

[Viscount Hailsham (Con)]

My Lords, does my noble friend agree that, for the purposes of assessing the safety of a country, a theoretical commitment to treaty obligations is not sufficient? What counts is the performance of those obligations, which requires a period of assessment.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My noble friend asked me a very similar question yesterday and I will give a very similar answer, which is that I am unable to predict what is likely to be in the legislation that is yet to be presented to Parliament.

[Lord Lansley (Con)]

My Lords, will my noble friend confirm that, if a committee of this House—the International Agreements Committee or indeed the relevant committee in the other place—under CRaG, were to make a report for debate, the Government would not proceed to ratification of the treaty unless and until that debate had taken place?

[Lord Sharpe of Epsom (Con)]

Again, the noble Lord is asking me to speculate on something that has not yet happened, and I am afraid I do not see the point of that.

[Lord German (LD)]

My Lords, are the Government intent on making any payment to the Government of Rwanda for converting their MoU into a treaty, and have the Government provided any support to the Rwandan Government in the last 12 months for the training of their officials in the immigration department?

[Lord Sharpe of Epsom (Con)]

Again, as I said yesterday, in answer to the second part of the noble Lord’s question, the answer is yes. As regards the costs, I have no knowledge of that.

[Lord Blunkett (Lab)]

My Lords, this proposal is both an expensive distraction and a delusion. Is it not true that even the far-right Prime Minister of Italy has proposals that would mean processing offshore but with Italian immigration officers, and those adjudged to be legitimate asylum seekers would then be returned to Italy? If we cannot manage something the far right in Italy can, what sort of people are we?

[Lord Sharpe of Epsom (Con)]

I am not sure I would characterise the Prime Minister of Italy as far right, to be perfectly honest.

[Noble Lords]

Oh!

[Lord Sharpe of Epsom (Con)]

This is a personal opinion, my Lords. Having said that, of course, I am also not going to speculate about what other countries may be doing. I notice that a number of other countries are exploring possibilities very similar to those we are looking at.

[Lord Trefgarne (Con)]

My Lords, have not the Falkland Islands been considered as an alternative to Rwanda, and what progress has been made with that proposal?

[Lord Sharpe of Epsom (Con)]

My Lords, I read that story in the papers, and I have no idea.

[Lord Clarke of Nottingham (Con)]

My Lords, did not the Supreme Court make a finding of fact that Rwanda had broken similar agreements in the past with the Government of Israel and that the state of the Government in Rwanda did not give rise to any confidence that they would comply with the agreement we have made? How does a treaty affect that at all? Are the Government capable of taking any steps that make the Government of Rwanda look more capable, and are the Government searching for another safe country that can be trusted, which seems to me the only way in which this policy can possibly be continued with any hope of success?

[Lord Sharpe of Epsom (Con)]

My Lords, that gives me an opportunity to reflect again on what the court said:

“changes and capacity-building needed to eliminate the risk”—

of refoulement—

“may be delivered in future, but they were not shown to be in place when the lawfulness of the policy had to be considered in these proceedings”.

The fact was that those proceedings considered one day —14 June 2022. Much has changed since then, so I think we should wait to see what the legislation says.

[Lord Coaker (Lab)]

My Lords, yesterday, the Minister could not answer a number of questions regarding the proposed treaty ratification process—its consents legislation —despite his usual courtesies. Was he aware that the same day he was speaking, the noble Lord, Lord Pannick, was pictured carrying the returns (removal to Rwanda) Bill into Downing Street with the date of 19 November on it? I think we could do with knowing whether the Minister was aware of the contents of that Bill. Can he confirm that the Bill will have a proper, full ratification process, not contain suggestions such as the Falkland Islands, which we have heard about, as a fallback position, and also respect international law—or does he need to consult the noble Lord, Lord Pannick, before he answers?

[Lord Sharpe of Epsom (Con)]

I would also note that the noble Lord, Lord Pannick, asked me an incredibly unhelpful question on another subject yesterday, so that is a win double. Actually, I was not aware of any of the contents of whatever may or may not have been in the folder of the noble Lord, Lord Pannick.

[Lord Green of Deddington (CB)]

My Lords, is the Minister aware that entirely legal immigration, encouraged by his Government, is roughly eight or 10 times the number of illegal migrants, to which this Question is addressed?

[Lord Sharpe of Epsom (Con)]

Yes, I am aware of that.

[Baroness Lister of Burtersett (Lab)]

The Minister did not answer the question of the noble Lord, Lord Clarke. According to the Telegraph, Lord Sumption warned that a new treaty would not prove the country was safe, as Rwanda does not have the institutional strength to observe its own treaty obligations. What changes have happened to give the Government the belief that it has the strength to fulfil its treaty obligations?

[Lord Sharpe of Epsom (Con)]

Again, the noble Baroness is speculating as to what may or may not be in the legislation, which no one has yet seen—apart, perhaps, from the noble Lord, Lord Pannick. However, I would also note that there are 135,000 refugees in Rwanda as we speak.

[Lord Popat (Con)]

My Lords, I declare my interest as the Prime Minister’s trade envoy to Rwanda. I was appointed in 2014 by the then Prime Minister, who I am delighted to see on our Front Bench today—my noble friend Lord Cameron. In dealing with Rwanda for the past nine years, I have found the Government to be very honest, transparent and forthcoming. I am sure my noble friend will agree that whatever agreement we reach with the Rwandan Government, they will show due respect for it, but, most important, for the asylum seekers.

[Lord Sharpe of Epsom (Con)]

I thank my noble friend very much indeed for that question, and I agree with the sentiments behind it. The Rwandans have behaved with great dignity in the face of some provocation.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, in answering the question from the noble Lord, Lord Lansley, the Minister did not give the answer that I think we were hoping for. I know that it is not the Minister’s department, but when the noble Lord, Lord Grimstone—he is probably here—was in the Department for International Trade, “the Grimstone rule” was agreed. It said that, where a committee asked for a debate, it would be given. I hope that the Minister’s department will act as honourably as the noble Lord, Lord Grimstone, did when he was a Minister and that that debate will be given.

[Lord Sharpe of Epsom (Con)]

I will certainly make sure that the noble Baroness’s comments are reflected back to the department.

[Lord Scriven (LD)]

My Lords, it may have escaped the Minister’s attention that a schedule to the then Illegal Migration Bill had Rwanda down as a safe country. It also listed another 20 or so countries that the Government deemed safe through that legislation. What assessment have the Government made of those countries in the light of the Supreme Court’s judgment?

[Lord Sharpe of Epsom (Con)]

My Lords, the Supreme Court’s judgment was specific to Rwanda, so we should leave it at discussing Rwanda for now.

[Baroness Altmann (Con)]

My Lords, given that so many other countries have issues similar to our own, can my noble friend the Minister update the House on any conversations about an international agreement, perhaps under UK leadership, to deal with this issue on a wider basis?

[Lord Sharpe of Epsom (Con)]

As we discussed at the Dispatch Box yesterday, those sorts of discussions are clearly going to have to take place at some point. Again, that question would perhaps be more appropriately directed at my noble friend the Foreign Secretary.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, can the Minister indicate whether the provisions in the new Rwanda treaty will adhere to the ECHR, which underpins our Good Friday agreement in Northern Ireland?

[Lord Sharpe of Epsom (Con)]

My Lords, as I say, I cannot comment on the specifics at the moment. However, I reiterate the Prime Minister’s commitment to stopping the boats and removing barriers if necessary. The detail and implications of doing so will be considered carefully; of course, that will take the GFA into account.

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, that concludes Oral Questions for today. We now come to some formal business, so if any noble Lord would like to leave, now is the time to do it.

Investigatory Powers (Amendment) Bill [HL]

Lord Sharpe of Epsom Excerpts

2nd reading
Monday 20th November 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the Bill be now read a second time.

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

My Lords, the number one priority of any Government is to keep our citizens and our country safe. The Investigatory Powers (Amendment) Bill seeks to make a set of targeted amendments to the Investigatory Powers Act 2016, which I shall refer to throughout as the IPA.

The measures in this Bill will support the security and intelligence services to keep pace with a range of evolving threats against a backdrop of accelerating technological advancements. Such advancements provide new opportunities for terrorists, hostile state actors, child abusers and criminal gangs. They also mean that data is generated in more places, in more formats and by more different entities than before. The security and intelligence services need to identify nuggets of threat in increasing quantities of data.

Importantly, the Bill will also ensure that we maintain and strengthen the world-leading safeguards that underpin the use of the powers in the IPA. The measures in the Bill are narrow and relatively modest in scope, which reflects the strength of the existing legislation, but they are none the less critical to the task of protecting national security and countering other serious threats.

It may be helpful to briefly remind the House of the parent legislation that this Bill seeks to amend. The IPA provides a clear legal framework for the security and intelligence services, law enforcement and other public authorities to obtain and utilise communications, and data about communications. These powers and the resulting capabilities are essential in supporting these public authorities in carrying out their statutory functions, including detecting and preventing terrorism, state threats and serious crime.

But since 2016 the nature of the threats we face has evolved, and we need to ensure that the UK’s investigatory powers framework remains fit for purpose. The use of these powers is underpinned by the IPA’s robust and world-leading safeguards—including the double lock for most of the powers, whereby a judicial commissioner must approve the decision by the Secretary of State to issue a warrant under the IPA. All use of the powers must be assessed as necessary and proportionate, with strong independent oversight by the Investigatory Powers Commissioner. The right to seek redress is available to anyone via the Investigatory Powers Tribunal.

I emphasise that this Bill is about delivering focused and targeted changes to the existing regime and not about creating new powers beyond those to which Parliament has previously given its agreement during passage of the IPA.

This Bill follows the publication of a statutory report on the implementation of the IPA in February this year by the previous Home Secretary, and a subsequent independent review by the noble Lord, Lord Anderson of Ipswich, which was published in June this year. These reports set out the operational case for change and have informed the contents of the Bill. I thank the noble Lord, Lord Anderson, for his considered review of the IPA; he was instrumental in its initial design as the author of A Question of Trust during his tenure as the Independent Reviewer of Terrorism Legislation.

Building on the areas of focus identified in the Home Office review, the noble Lord’s report focused on: the effectiveness of the bulk personal dataset regime; criteria for obtaining internet connection records; the suitability of certain definitions within the Act; and the resilience and agility of warrantry processes and the oversight regime. His review helpfully highlighted several areas in which the IPA could be improved, and we are pleased to say that this Bill aligns nigh on entirely with his recommendations.

Your Lordships may note that there is one area of the Bill that the review by the noble Lord, Lord Anderson, did not touch on: the changes to the notices regimes. This was subject to a separate public consultation, and the Government are grateful to those who responded for helping to shape this element of the Bill.

I will turn now to the main elements of the Bill. Part 1 deals with bulk personal datasets, more commonly known as BPDs, and makes changes to the way in which the intelligence services may use them. Building on the findings of the review by the noble Lord, Lord Anderson, the Bill provides a narrow group of provisions to: create a set of new safeguards for the retention and examination of BPDs where there is low or no reasonable expectation of privacy; allow for the extension of the duration of a BPD warrant under Part 7 of the Act from 6 to 12 months; and make clear that agency heads can delegate certain existing functions in relation to BPD warrants. Under the current regime, all BPDs—including those that are publicly or commercially available—must be subject to the double-lock warrantry process and strict examination safeguards.

While these safeguards are in many cases entirely appropriate, that is not always so, particularly where a dataset is publicly available and widely used. This has a detrimental effect on the agility of the agencies, particularly where these datasets could be used to develop new capabilities. It also inhibits their ability to work flexibly with allies and partners in academia or the private sector.

Creating a new regime for datasets that have low or no expectation of privacy will increase operational agility while ensuring that proportionate safeguards are in place, including prior judicial approval. This change will be an important step in preventing our agencies falling behind our adversaries.

The Bill also seeks to insert a new statutory oversight regime for examination by the intelligence services of third-party BPDs. Under the new measures, an intelligence service may examine a dataset on a third-party’s systems without taking control of the set itself. However, if the dataset is not publicly or commercially available to other users, the new warrantry process and requirements will apply. The regime will be subject to safeguards such as the double lock already in other parts of the IPA.

Part 2 will make changes to the role and remit of the Investigatory Powers Commissioner and their supporting functions. The Bill will enhance the world-leading oversight regime in the Act, including the role of the IPC. The changes will ensure that the regime is resilient and that the IPC can effectively carry out their functions. This will maintain and enhance the robust, transparent safeguards in the regime.

In addition to putting oversight of third-party BPDs on a statutory basis, the proposed amendments to the oversight regime aim to increase resilience and ensure that it remains fit for purpose. As highlighted in the then Home Secretary’s review, the IPA does not provide an easy mechanism to manage change. This has caused issues regarding the resilience and flexibility of the IPC and the wider IPA oversight regime, such as during the Covid-19 pandemic. The Bill therefore seeks to place the ability to appoint deputy investigatory powers commissioners and temporary judicial commissioners on to a statutory footing, to provide resilience where there is a shortage of judicial commissioners.

The Bill will also formalise some of the IPC’s non-statutory oversight functions—for example, their oversight of compliance by the Ministry of Defence of the use and conduct of surveillance and covert human intelligence sources outside the UK. The measures also provide greater legislative clarity in respect of the error-reporting obligations imposed on public authorities. The IPC has been consulted on all these measures and has endorsed the approach to ensuring that the oversight regime remains fit for purpose.

Part 3 makes changes to Part 3 of the IPA, which relates to powers for public authorities listed in Schedule 4 to the IPA to acquire communications data. CD is the data around the communication rather than the content of that communication. Section 11 of the IPA made it an offence for a relevant person within a relevant public authority to “knowingly or recklessly” obtain CD from a telecoms operator or a postal operator without lawful authority. The Bill will set out examples of the acquisition routes that amount to lawful authority. This will provide greater clarity to public authorities that they are not committing a Section 11 offence when acquiring CD from a telecommunications operator under those routes.

The Bill will additionally make targeted amendments to ensure that public sector organisations are not unintentionally prevented or discouraged from sharing data in order to meet their statutory duties and obligations when administering public services or systems. Part 3 also makes a clarificatory amendment to the definition of CD in Section 261 of the IPA, to make it clear that subscriber data or data use to identify an entity will be CD.

Part 3 also makes changes to allow bodies with regulatory functions to acquire communications data. The use of regulatory powers under the IPA is limited to organisations such as Ofcom and the Information Commissioner’s Office for their regulation of telecoms operators. The Bill seeks to amend the IPA to expand the definition of regulatory powers to include public authorities with wider, lawfully established and recognised regulatory or supervisory responsibilities. The effect of this change will be such that authorities will be able to acquire CD using their own statutory powers and not rely on IPA powers. However, where the CD is being acquired with a view to using it for a criminal prosecution, authorities must use their IPA powers to acquire that CD.

Targeted changes will also be made to support the use of internet connection records by the NCA and intelligence agencies. The Bill will add a further condition which allows the service in use and time period to be specified within the application without the requirement that they are unequivocally known. This will enhance the ability of the NCA and the intelligence services to identify serious criminals, including paedophiles and people traffickers, helping to protect victims and counter threats to the UK’s national security.

Part 4 will ensure the efficacy of the existing notices regimes in the face of technological changes and the complex commercial structures associated with the modern digital economy. These measures have been carefully calibrated to address these issues in a proportionate way. Furthermore, the notices regimes have existed since the 1980s, and these reforms are just the latest iteration of that regime. This is not about introducing any new powers. The Bill will create a notification requirement which will allow the Secretary of State to place specific companies under an obligation to inform the Secretary of State of proposed changes to their telecommunications services or systems that could have an impact on lawful access. I wish to be clear that this is not a blanket obligation on the tech sector. It will be placed on companies on a case-by-case basis and with full consideration of the necessity and proportionality justifications of doing so each time.

Furthermore, the notification requirement does not give the Secretary of State any powers to intervene in the rollout of a product or a service or to veto such a rollout. It is intended to ensure that there is time for appropriate consideration of the operational impact and potentially for discussion with the company in question about possible mitigations. This notification requirement has replicated the existing notices standards wherever possible and is itself already part of the wider notices regime, where the Government are able to require companies under notice to inform us of relevant changes which affect their ability to provide assistance under any warrant, authorisation or notice.

The Bill also amends the effect of a notice during the review period. A notice must go through the full double-lock process before it may be issued to a company. On receipt of that notice, a company may request a review of that notice. Currently, the notice has no legal effect during the review period. The Bill amends this to require the company to maintain the status quo during the review period. This will mean that the company does not have to take any steps to comply with elements of the notice, other than to maintain its existing services at the point it is given the notice. The result will be that the company cannot take any action that will negatively affect the level of lawful access for our operational partners during the review period. This is without prejudice to the final outcome of the review and ensures that this outcome cannot be pre-judged.

The Bill also makes a clarificatory amendment to the definition of a telecommunications operator. This makes clear that large companies with complex corporate structures which together provide or control telecommunications services and systems fall within the remit of the IPA. It also clarifies that a notice may be given to one entity in relation to the capability of another entity. It does not seek to bring new companies into the scope of the IPA. Furthermore, the Bill creates a new safeguard for the renewal of notices. This will require a notice to be put through the full double-lock process after two years, if it has not been varied, renewed or revoked in that time.

Finally, Part 5 includes several minor changes to the IPA to ensure sufficient clarity and resilience within the regime. This includes increasing the resiliency of the triple lock, which is the additional safeguard for targeted interception and equipment interference warrants relating to members of relevant legislatures, such as this Parliament. Clauses in Part 5 will allow for the Prime Minister—in the event that they are unavailable—to delegate their responsibility for providing the triple lock to named Secretaries of State. This change is purely about ensuring resilience in the authorisation process and does nothing to alter the existing power or introduce any new power.

I conclude by highlighting the opportunity that the Bill affords us and the impact it will have on the safety and security of the UK and its citizens. Without making changes now, the ability of our agencies to tackle evolving threats—including terrorism, state threats, and serious crime—will be increasingly constrained. In the face of greater global instability and technological advancements, now is not the time for inaction. I welcome the further scrutiny that noble Lords will provide. From looking at the list of speakers, I am in no doubt that they will start with a typically insightful debate today. I beg to move.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken. There have been many expert and valuable contributions to today’s debate. I particularly thank the noble Lords, Lord Coaker, Lord Ponsonby and Lord Fox, for their broad and very constructive support for the Bill. Obviously, I very much thank—again—the noble Lord, Lord Anderson, for his work. I also thank the noble Lords, Lord Murphy and Lord Evans, and particularly the noble Lord, Lord Carlile, who I thought was very eloquent, for their contributions. I thank the noble Baroness, Lady Bennett, for provoking the noble Baroness, Lady Manningham-Buller—a thing I am always very reluctant to do.

The support was more qualified from the right reverend Prelate the Bishop of St Albans, but I hope to assuage his concerns in my remarks and will certainly endeavour to deal with some of the concerns of the noble Lord, Lord Strasburger, who asked whether we were trying to avoid detailed scrutiny. The answer is: absolutely not. The Bill was ready, having followed the detailed and expert scrutiny of the noble Lord, Lord Anderson—as noted by the noble Lord, Lord Carlile—and, of course, we could not pre-empt what might be in the King’s Speech. In the case of this Bill, parliamentary time currently allows. We have engaged extremely extensively and, frankly, the country needs it. That is a very compelling set of circumstances behind introducing the Bill now.

I feel I ought to take issue with the fact that the noble Lord, Lord Strasburger, said that the country, or all countries, “need a Snowden” occasionally. As I understand it, it has been alleged that people died because of the activities of Snowden, so I am not sure that that is a generally fair point.

I will deal with the questions raised in as much detail as I can in the time available and will start with bulk personal datasets and, in particular, privacy. I thought the noble Lord, Lord Carlile, gave an excellent speech on this subject, but obviously there are concerns so let me do my best to assuage them. The Bill creates a new regime for the retention and examination of bulk personal datasets where there is a low or no reasonable expectation of privacy. The nature of these datasets means that individuals to whom the data relates would have low or no reasonable expectation of privacy in relation to the datasets so, for example, an individual may have consented to the data being made public or the data has already been manifestly made public by the individual. That includes categories of datasets such as public and official records, news articles, content derived from online video-sharing platforms, and publicly available information about public bodies.

For example, a dataset that is likely to meet the test of having no or only a low expectation of privacy is the Companies House register, a government register of company information that is open to the public to search online and download. I have noted the recommendation of Big Brother Watch and I read it in some detail. I think it is based on a misunderstanding but perhaps it is worth going back into the reason why we are making these changes now. The way the existing regime was designed did not foresee the exponential increase in the use of, complexity of and changing nature of data. The scale and different kinds of data that are now available is unrecognisable in comparison to the picture in 2016. It did not foresee the extent to which cloud and commercially available tools would make analysis of datasets possible, the extent to which publicly available data would increase in value for the intelligence agencies compared to sensitive data which used to be obtained through traditional covert powers, and the extent to which intelligence agencies would need vast quantities of publicly available data to train machine learning models.

The intelligence agencies have been inhibited from maximising opportunities when compared with the private sector and academia, as well as our adversaries, as a result of the gold-plating of some of the Part 7 regime. It is important to note that the datasets would not necessarily be authorised under the new regime in Part 7A solely by virtue of their being publicly or commercially available, and that is particularly important when considering datasets which have been hacked and/or leaked.

On the subject of safeguards, there are of course safeguards in place to prevent misuse of the powers in the Bill. The safeguards that will apply to bulk personal datasets with low or no expectation of privacy will be calibrated to reflect the intrusion that is likely to arise from their retention and examination, ensuring that the rights of the individuals to whom the data relates is adequately protected while also enabling the intelligence services to make more effective use of these datasets. This will include requiring prior judicial authorisation on whether a category of datasets or an individual dataset can be considered to meet the test for authorisation under the new Part 7A regime; that is, that they meet the test for low or no expectation of privacy.

In answer to the noble Lord, Lord Fox, the Bill creates an obligation on the head of an intelligence service to stop any activity that relies on any data discovered in a BPD where the low or no reasonable expectation of privacy assessment no longer applies. The safeguards are being recalibrated to ensure that the regime better reflects the threats and opportunities of the modern world, but they remain robust, with the important protection of judicial approval at their heart.

Internet connection records were referred to by the noble Lords, Lord Coaker and Lord Strasburger, among others. They asked why there are no specified time limits for the period that internet connection records can be sought under the new condition. The driver for this change is to enable the intelligence services and the National Crime Agency alone—I will come back to the National Crime Agency—to carry out target detection to identify previously unknown high-harm offenders. The current requirement for unequivocal knowledge of the time a service is accessed, which service is accessed, or the identity of a person, before an internet connection record can be sought is preventing this from happening. So, it is important we do not create similar conditions under this proposal which will continue to restrict this critical investigative work.

These investigations will be targeted and case-specific, so it is not possible to include a time limit which could work across the range of investigations being undertaken. However, I can reassure noble Lords that requests will be time-bound based on the specifics of the case and they will be driven by intelligence, not used as speculative fishing exercises. Furthermore, the new condition is also limited in terms of the purposes it can be utilised for. It can, and I stress this, be used only for national security and serious crime purposes. It is important to note that there are several other safeguards in place, including a requirement for the request to be both necessary and proportionate. A request that sought records over a very long period of time is highly likely to be neither necessary nor proportionate, and all ICR requests are subject to independent ex post facto oversight. All ICR requests are valid for only one month and an application must be renewed at the end of that period.

The noble Lord, Lord Coaker, asked why this is being extended to the NCA. I recognise that the noble Lord, Lord Anderson, initially proposed that the new condition should extend only to the intelligence services, although I understand that he now sees value in it being extended to the NCA because the NCA plays a vital role in protecting children from sexual exploitation and abuse, so it is essential that it has all the tools at its disposal to counter that particular threat.

The noble Lord, Lord Fox, asked about roaming data, and in particular subjects of interest using a foreign SIM card. On that example, in the circumstances where a subject of interest was using a SIM card obtained in a third country and was therefore using international roaming while in the UK, under the proposed amendments an exception for this data will be made, allowing UK telecoms operators to retain it under a retention notice which has been double locked. This will then allow operational partners with the appropriate authorisation to access the retained data when necessary for the purpose of prevention and detection of crime and, again, protecting national security.

On the subject of the notices reforms and the tech companies, which I think most noble Lords referred to, some tech companies have expressed concerns in public fora in advance of the Bill’s publication that these measures may place onerous or burdensome obligations on an operator, could undermine security or could allow the Secretary of State to prevent technical or relevant changes. I assure all noble Lords that these concerns are misplaced. The Bill does not introduce significant changes to the existing powers, ban end-to-end encryption or introduce a veto power for the Secretary of State regarding the rollout of new technologies and security measures by companies, contrary to what some tech companies have incorrectly speculated. Rather, we are making a series of adjustments to ensure that the notices regime continues to be effective in the face of modern technologies and the structures of companies in the modern digital economy.

None of the measures in the Bill seeks to reduce the competitiveness of UK tech firms, or indeed to discourage innovation. Careful consideration has been given with regard to these measures, striking a balance to ensure that the law enables us to mitigate the risks posed by changing technology, while still promoting technological innovation and the legitimate interest in increased privacy of the majority of our citizens.

These measures do not create any new acquisition powers but will maintain the efficacy of long-standing powers. We therefore do not anticipate that they will put disproportionate burdens on businesses. Rather, they formalise processes that are already in place.

The Government support technological innovation and advances and have always been clear that we support strong end-to-end encryption, as long as it does not come at a cost to public safety. Together with our international partners, we believe that tech companies have a moral duty to ensure that they are not blindfolding themselves and law enforcement to abhorrent crimes such as child abuse and terrorism on their platforms. These amendments will not introduce significant changes to the existing powers, ban end-to-end encryption or introduce a veto power for the Secretary of State regarding the rollout of new technologies and security measures.

On a question asked of me by the noble Lord, Lord Fox, with regard to notices and the pre-clearance requirement, these amendments do not introduce a requirement for pre-clearance for the Secretary of State regarding the rollout of new technologies and security measures by companies. Fundamentally, the changes to the notice regime are about ensuring that the decisions on public safety are made by Ministers and are subject to judicial oversight as Parliament intended and as the public would expect, to keep them safe.

On the triple lock, noble Lords—in particular the noble Lords, Lord Coaker and Lord Murphy—asked for clarification as to whether the Prime Minister could delegate an authorisation requiring the triple lock to anyone they wanted to. I can reassure noble Lords that that is not the case. The Bill proposes that the Prime Minister will designate in advance a group of Secretaries of State who could authorise the warrant on his or her behalf. The alternative approver would need to be a Secretary of State and not the same Secretary of State who authorised the warrant at the earlier stage of the triple lock. I hope that provides the necessary reassurance on the restrictions that will be in place under this clause. Restricting the decision on suitable deputies is for the Prime Minister to decide, but it is clear that there needs to be sufficient resilience in the system to ensure that there are enough alternative approvers with the necessary experience.

The noble Lord, Lord Coaker, also asked me about ISC oversight and parliamentary oversight. He will be aware that the Intelligence and Security Committee examines the policies, expenditure, administration and operations of the UK intelligence community, and sets its own agenda and work programme. Obviously, it will maintain that oversight function for the measures in the Bill, but I can tell the noble Lord that the Security Minister will spend some time with him on the subject of the Bill next week, which I hope will assuage any concerns.

I need to go into the subject of safeguards in more detail in light of the speeches given by the noble Lord, Lord Strasburger, the noble Baroness, Lady Bennett, and the right reverend Prelate the Bishop of St Albans. I assure noble Lords that the measures contained in the Bill, and in the IPA, are underpinned by a robust and world-leading safeguards regime. They are not failing.

Numerous safeguards exist to prevent the misuse of investigatory powers, ensuring that they are used in accordance with the law and in the public interest. The Bill contains measures that will introduce new safeguards and improve the resilience of the Investigatory Powers Commissioner. We are improving oversight and increasing safeguards to ensure that powers in the IPA are not misused.

Strong safeguards are already in place to ensure that investigatory powers are used in a necessary and proportionate way. That includes independent oversight by the Investigatory Powers Commissioner’s Office and a right of redress through the Investigatory Powers Tribunal.

The powers can be used only for the statutory purposes set out in the Act, including in connection with the most serious crimes and national security. We are also taking the opportunity to strengthen safeguards in other parts of the regime—for example, by creating a new statutory oversight regime for the intelligence agencies’ access to datasets held by third parties rather than retained by the agencies themselves.

On the subject of retention, the noble Lord, Lord Strasburger, talked about data being held indefinitely. However, retention of data is subject to stringent safeguards under the IPA. It can be retained only provided it is necessary and proportionate, and it is not authorised indefinitely. This is regularly reviewed, and records of holdings are subject to inspection by the Investigatory Powers Commissioner’s Office.

The noble Lord, Lord Strasburger, also referenced the recent TechEn judgment. The investigations carried out by the Investigatory Powers Commissioner and his team in response to TechEn are evidence that the oversight, transparency and safeguarding arrangements provided for in the IPA are working as they should. In the Liberty judgment of 2019, the High Court found that

“The safeguards contained within that Act are capable of preventing abuse”.


While the TechEn case outlined widespread corporate failings between the Home Office and MI5, these issues are historic and the Home Office has taken steps internally to increase collaboration with MI5 and ensure that there is appropriate resourcing in place within the relevant Home Office teams responsible for investigatory powers.

I also wish to be clear that there has been no finding by the tribunal that MI5 misused the data in question nor any suggestion of this at any time during this process. As the then Home Secretary, Sajid Javid, noted in 2019,

“none of the risks identified relate in any way to the conduct and integrity of the staff of MI5”.—[Official Report, Commons, 9/5/19; col. 30WS.].

Finally, I reference the endorsement that the tribunal has provided on the robustness of the oversight regime and safeguards contained within the IPA, including the adequacy of the measures available to the Investigatory Powers Commissioner. TechEn does not, therefore, suggest that the system is fundamentally flawed but shows that it works as intended when non-compliance occurs.

Many noble Lords have made important points about balance in this debate, particularly regarding privacy. I particularly note the noble Baroness, Lady Manningham-Buller, whose comments were spot on. It is fair to express concern about the impact that the Bill will have. Privacy is at the heart of the IPA, and this will remain the case under this Bill. The IPA contains robust, transparent and world-leading safeguards centred around considerations of intrusion into privacy. This includes a requirement for investigatory powers to be used in a necessary and proportionate way, with independent oversight by the Investigatory Powers Commissioner and redress through the Investigatory Powers Tribunal. The Bill builds upon these already world-leading safeguards, further strengthening the oversight regime, as I have just outlined. I also note that in 2018, the then UN special rapporteur on the right to privacy noted that the introduction of the IPA allowed the UK to claim a global leadership role in the protection of civil liberties. I note that this was not referenced by the noble Lord, Lord Strasburger, but I am sure that he would like to read that notification.

The noble Lord, Lord Carlile, made some very good points about codification of the various laws in this space. I defer to his extensive knowledge. I will also ensure that his thoughtful remarks are noted in the appropriate parts of government. Obviously there is very little that I can comment on regarding this now, however.

I have endeavoured to address the contributions made by noble Lords today. I apologise if I have missed any questions that were asked of me. I will scour the record and write if that is the case. I express my commitment to further engagement with noble Lords. I look forward to further discussions as the Bill continues its passage, as we seek to ensure it achieves the crucial objective of making our country and our citizens safer. For now, I commend this Bill to the House.

Bill read a second time.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

That the Bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the Bill in the following order:

Clauses 1 to 13, The Schedule, Clauses 14 to 31, Title.

Motion agreed.

Illegal Immigration

Lord Sharpe of Epsom Excerpts

Monday 20th November 2023 Lords Chamber

[Lord German (LD)]

My Lords, this Statement is welcome; of course, we could have had it last week, but that was not to be the case. However, that has allowed us the whole weekend to understand slightly more the Government’s intentions—at least some of the Government’s intentions, some of which are being challenged. It means that we have to examine this Statement very carefully. The Statement says that the Government of course “respect the Supreme Court”, but we are being asked to suspend belief—to convert black into white on the say-so of the Government.

Are the Government intending to implement legislation that simply allows them to make an opposing declaration to that of the Supreme Court on the safety of Rwanda for refugees? To what extent is that respecting the Supreme Court’s decision? Do the Government agree with the Supreme Court that, in order to see their Rwanda policy in operation, they would need to disregard the ECHR and the United Nations system of international treaties, including the refugee convention, the United Nations convention against torture, and the International Covenant on Civil and Political Rights, and also change not just the Human Rights Act but also domestic asylum legislation from 1993 and 2002?

Further, the Supreme Court judgment states about the Rwanda system that

“necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring”.

Therefore, in the past 12 months, have the UK Government provided any effective training to Rwandan officials?

Thirdly, this Statement says that arrivals are down, decisions are up, returns are up—we are getting on with the job. Believe that if you wish. Small boat arrivals are down on last year, but if you remove Albanians—clearly, we must accept the policy that returns those who are not genuine asylum seekers to their safe home country—total numbers are up from 2022. Going by the recent annual grant rates, 75% of those who crossed this year would be granted asylum. Of course, because clauses of the Illegal Migration Act have not yet been brought into force, the Government will have to hear this backlog of cases. The current backlog of cases is 122,585, taking legacy and flow numbers together. In addition, government figures show that small boat arrivals represent only 37% of people claiming asylum, up to June 2023.

What actions are being taken to ensure that those from high grant rate countries have a safe way to travel to the United Kingdom to claim asylum: for example, an Iranian female political protester, a Russian anti-war activist, a young man at risk of forced conscription from Eritrea, and so on?

Finally, I note that the Statement says:

“we are not going to put forward proposals simply to manufacture an unnecessary row”

for short-term political gain. Good luck with getting people to agree to that.

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

My Lords, it goes without saying that Wednesday’s outcome was not what the Government wanted to see, but we have spent the last few months planning for all eventualities and we remain completely committed to stopping the boats.

The core part of our policy—to relocate those who entered illegally and have no right to be here to another country—remains lawful. We have also made progress on other fronts of our plan to tackle the small boats—which I will come back to in a minute—but crossings are down, the backlog is being cut, and it is interesting to note that countries across Europe have seen what we are doing and are interested in following suit.

The Supreme Court recognised that changes may be delivered in future which would address the issues it raised. The Prime Minister has spoken to President Kagame of Rwanda and both countries reaffirmed their unwavering commitment to deliver on our landmark partnership. We will work with Rwanda to address the Supreme Court’s concerns by setting out strong assurances in a new treaty binding in international law. However, we are also going a step further. As has been noted, the Prime Minister has announced that we will take the extraordinary step of introducing emergency legislation to enable Parliament to confirm that, with our new treaty, Rwanda is safe.

As to the questions from the noble Lord, Lord Coaker, on the various newspaper-based speculation about what people, including the new Home Secretary, may have said, I will not speculate but I note that he did not recognise the phrase that I think the noble Lord, Lord Coaker, described as colourful, and therefore I wish to take him at his word. What the current Immigration Minister thinks on this, I do not know.

When people know that if they come here illegally, they will not get to stay, they will stop coming altogether and we will stop the boats. Illegal immigration destroys lives and costs British taxpayers billions of pounds a year. We need to end it, so we will do whatever it takes.

However, as the new Home Secretary has pointed out, the Rwanda plan has only ever been one tool in our toolbox, and we have other schemes to drive down these numbers. We are tackling illegal immigration at every stage of the journey of a would-be illegal migrant, and our plan is working. Last year, the Prime Minister signed the largest ever small boats deal with France—I believe that 22,000 crossing attempts have been prevented because of the close co-ordination between British and French officials, and that is in 2023 alone.

Cutting-edge surveillance technology is in play, and we have beefed up security infrastructure, such as more CCTV at key border crossing points along the channel. We have ensured that there are more French officials and officers patrolling French beaches, and, as I said, they are working closely with their UK counterparts. So that is less money that British taxpayers have to spend on hotels, less profit for the criminal gangs and fewer people to process—fewer people also, I should add, putting their lives at risk. That sends a clear message to those who want to cross that we will stop them.

The noble Lord referred to the fact that we now have a returns agreement with Albania, and seemed rather dismissive of it, but the fact is that so far during 2023 we have returned more than 4,600 people in just 10 months. He should be applauding that. We are targeting the movement of goods, such as dinghies and engines, that are used to facilitate the crossings in order to undermine a key component of the smugglers’ business model. Apart from Albania, we have expedited returns arrangements with countries including France, Turkey and Italy. We have increased the number of illegal-working raids by almost 70%. We have cut the asylum legacy backlog by more than 59,000 cases. We have freed up hundreds of hotel beds with the use of alternative sites. We have announced the closure of the first 50 asylum hotels and we have passed the Illegal Migration Act 2023, which is the most ambitious immigration legislation in decades. It makes it clear that the only route to asylum in the UK is via one of the safe and legal routes that are in place.

Noble Lords asked about treaties and why this was not considered at the start. The fact is that a memorandum of understanding is a common mechanism for establishing an arrangement or partnership between countries. The Supreme Court was clear that Rwanda entered into the partnership and signed the MoU in good faith, and both countries remain committed to the partnership. We always knew that the partnership would face challenges, but we have been clear that we will do whatever it takes to deliver it.

On the Supreme Court’s decision and conclusion, the Prime Minister has said that we respect the Supreme Court’s decision. The rule of law is fundamental to our democracy, but it is also of fundamental importance that we stop the boats. I have of course taken note of the comments of Lord Sumption, but at the moment the only fact that is changing is that that MoU is being, shall we say, converted into a treaty. I do not know the details of that piece of legislation, but I have little doubt that we will be discussing it all at considerable length.

Something else that the Supreme Court said which I think is worth pointing out is that

“changes and capacity-building needed to eliminate the risk”—

it was talking, of course, of refoulement—

“may be delivered in future, but they were not shown to be in place when the lawfulness of the policy had to be considered in these proceedings”.

I make the point that the lawfulness of the policy that needed to be tested dated back to June 2022, more than a year ago. So, in answer to the noble Lord, Coaker, about what we have done since, the answer is that we have taken considerable measures since the Court of Appeal’s judgment in terms of getting skills and people into Rwanda to help them with their processes.

The noble Lord asked me about commencing parts of the Illegal Migration Act. We are moving ahead with operationalising other measures in the Illegal Migration Act, which will make it easier to remove people with no right to be here—for example, those who have travelled from fundamentally safe countries. On the cohort to which he referred who arrived under the new terms, I believe that they are still expected to be returned to Rwanda, but, obviously, at some point that will be tested in this House and the other House, so, as yet, there is no point in speculating as to how that might happen.

The ECHR has also come up. It is clear that this was a judgment from our domestic courts, not the ECHR. We always said that our plan will deliver the changes necessary to take away the incentive for people to risk their lives through illegal crossings, while complying with our international obligations. But, as the Prime Minister said, if people continue to put obstacles in the way of this policy, we will remove those barriers. As I said, we have already started the process on the treaty to address the Supreme Court’s concerns. The Prime Minister’s announcement of emergency legislation was clear, but I do not know what the content of that legislation will be.

Lastly, I pay tribute to my noble friend Lord Murray of Blidworth for his hard work, professionalism and absolute dedication to stopping the boats. He is a friend, he was an excellent colleague and I am going to miss him.

[Lord Carlile of Berriew (CB)]

My Lords, first, I too praise the noble Lord, Lord Murray of Blidworth, at least for his determination with this Bill and the courtesy that he showed to the whole House at all times. However, why do the Minister and the Government not see that the proposal of a treaty with Rwanda would produce a document that would be yet another historically worthless piece of paper? Rwanda, on the facts and merits, has been found to be unsafe and, once somebody was sent to Rwanda, there would be no realistic possibility of enforcing their rights, whatever they were, through the Rwandan courts.

Secondly, does the Minister not agree that the ignominious squabbling among senior and former members of the Government is demeaning a serious subject on which we all have merited concerns, apart from a few who seem to regard it as trivial? Is it not now time for the Government to set about a doubled programme which would produce value, in cost terms, of dealing with the people in the backlog, wherever they are, as quickly as possible, by increasing the number of officials and putting the relevant courts and tribunals around the country so that they can deal with these cases on a day-by-day basis? Does he not agree that most of these cases could be dealt with within a few days if they were properly managed?

Finally, does the Minister agree that the Government should put all people who are de facto refugees back into the refugee system so that they can be dealt with according to the law and not by some artificial construct?

[Lord Sharpe of Epsom (Con)]

The noble Lord has asked me a number of questions. There is another one in there inviting me to speculate about something. Again, I will not do that. I do not know what will be going into the treaty or how it will look, so there is very little point in me commenting on that.

I do not regard the subject as trivial. It is of fundamental importance to the country and to Parliament. I respect the fact that we can debate it and look forward to many more debates on it. As regards the arguments that are allegedly going on behind the scenes, I am afraid I have not seen any evidence of that. How they are being leaked and whether they are happening, I do not know—but of course passions do run high on this subject.

The noble Lord asked another question. I have totally forgotten what it is, but I am sure that somebody else will remind me and I can then answer it.

[Lord Carlile of Berriew (CB)]

Putting them back in the refugee system.

[Lord Sharpe of Epsom (Con)]

I cannot comment on that at the moment, but, again, I am sure we will come back to it in due course.

[Viscount Hailsham (Con)]

Does my noble friend agree that whether Rwanda is or is not a safe country is a matter of fact and that to displace such a finding of fact by the Supreme Court using a statute is very hard to reconcile with the rule of law? Perhaps I may make this suggestion. If we must have this Bill, we could have a delayed implementation date, to be triggered only by an affirmative resolution of both Houses of Parliament, with that debate to be preceded by a report of a Joint Committee of both Houses advising on whether Rwanda is a safe country.

[Lord Sharpe of Epsom (Con)]

My Lords, I agree with my noble friend, regarding the Supreme Court’s decision, that as of 14 June 2022 it did indeed regard it as a fact that there was a risk of refoulement. However, that is a fairly narrow interpretation of the rest of the system that is currently set up in Rwanda. Again, I will not speculate on how things may change. I also note that the Supreme Court specifically acknowledged that there were cases where it could see the situation changing in the fullness of time. I expect that this is the area we are looking to explore.

As regards my noble friend’s suggestion of an affirmative SI, I am happy to take that back and enter that into the conversation that is taking place.

[Baroness Chakrabarti (Lab)]

My Lords, it is of course quite right that when the facts change or, to put it better, are emphatically revealed by the Supreme Court, wise people change their minds. They do not attempt to legislate to change the facts. Will the Minister acknowledge that, contrary to various statements that have been made in this House by Benches opposite, the Supreme Court acknowledged the special role and expertise of the United Nations High Commissioner for Refugees in evaluating the facts—that is, the safety of countries?

As for treaties, does the Minister agree that, whatever new treaty comes, there is a treaty in this area. It is a very well-established treaty called the refugee convention. It is so well established that aspects of it are arguably now part of customary international law. I know that the Minister cares about the rule of law. If the Government are going to disapply or abrogate the European Convention on Human Rights, will he encourage his colleagues to counsel what effects there might be on the behaviour of the Russian Federation and others—and those currently in jeopardy, including Ukrainian prisoners who are relying on interim orders for their lives and protection from the Strasbourg court?

[Lord Sharpe of Epsom (Con)]

Of course, I agree with the noble Baroness. The Supreme Court did acknowledge that the UN has a role to play in this; indeed, it was heavily referenced in the Supreme Court’s judgment. I also accept that a treaty already exists regarding refugees; that is incontestable. As regards what might happen regarding the ECHR, I have already said that that was not part of any of the discussions around this particular decision. This was a domestic court’s decision. I think it is a few steps away to discuss the ECHR, and the noble Baroness is well aware of my views on the subject.

[The Lord Bishop of St Albans]

My Lords, we on these Benches are quite clear that we cannot have open borders, that we must stop people risking their lives, and that we need to stop the people smugglers. But we are also clear that we cannot export our moral responsibilities towards those seeking sanctuary on to the shores of another country, be it Rwanda or anywhere else. This is such a long-term, complex, worldwide problem that we need a long-term strategy for tackling this refugee crisis, in concert with our global partners, so while the Government are proposing some immediate new laws, what are they doing to address the scale of the problem, to provide long-term certainty? Will the Minister commit to developing and publishing a long-term strategy so that we can all try to engage with this in a much more measured way?

[Lord Sharpe of Epsom (Con)]

I thank the right reverend Prelate for those comments. I agree with his point that it is obviously also morally wrong for criminal gangs to profit from this evil trade, and to ship people across the Channel at incredible risk to themselves. In fact, I think we are very close to the anniversary of that particularly unpleasant tragedy that happened in the Channel last year. As regards this problem of illegal migration becoming long-term, the right reverend Prelate is of course right. There are many drivers of this, and it therefore seems likely to me that the world will have to get together to address the various things that are driving these movements of people—what makes people so desperate to leave their homes—and try to do something about it. So far, it seems to have eluded the world, but I sincerely hope the right reverend Prelate is right, and that we can do something about it sooner rather than later.

[Baroness Ludford (LD)]

My Lords, I am not sure that the Minister fully answered the questions of the noble Lord, Lord Carlile, and the noble Viscount, Lord Hailsham. Will he now explain how a treaty or indeed legislation declaring Rwanda safe will solve the problem, given that the Supreme Court said that it was not the lack of

“good faith of the government of Rwanda”

that was the problem, but

“its practical ability to fulfil its assurances … in the light of the present deficiencies of the Rwandan asylum system”?

Presumably, they can make whatever binding commitments they like in a treaty, but the issue is the practical ability to deliver. Also, given that the Home Secretary says that the Government take their

“obligations to the courts very seriously”,

how can they change the law to “do whatever it takes”? What does “whatever it takes” actually mean?

[Lord Sharpe of Epsom (Con)]

I would not try to explain that. I do not know what will be in the new legislation. I do not know how it is worded; I do not know what the intention is for it, so I cannot answer any of those questions, for obvious reasons. I do not know whether it will solve the problem; I sincerely hope it does, for obvious reasons. One thing I would expect to be in a treaty—I am just speculating—is that it will be enforceable in some way. Whether that is through the Rwandan courts or through other international means, I really do not know. But we are going some way to try to address the Supreme Court’s concerns.

[Lord Cormack (Con)]

My Lords, does my noble friend accept that we need a solution that is accepted across the political parties, particularly as there will be a general election within the next 14 months? Is there not an overriding case for saying that if ever a Bill needed pre-legislative scrutiny by a Committee of both Houses, it is this Bill?

[Lord Sharpe of Epsom (Con)]

The noble Lord probably makes a good point, but my understanding from reading the likely timetable is that parliamentary time would not allow.

[Lord Hannay of Chiswick (CB)]

My Lords, does the Minister recognise that his noble colleague told me several times—times beyond count, really—that I was totally wrong when I said that the Government’s attempts to send people to Rwanda were contrary to the refugee convention? So will he be very kind and tell me that now it has been upheld unanimously by the Supreme Court that view was correct? He will know that the Prime Minister has described the European Court of Human Rights as a foreign court. Does the Prime Minister regard the International Court of Justice, whose compulsory jurisdiction we accept and on which court we have no judge, as a foreign court?

[Lord Sharpe of Epsom (Con)]

I was not present in the debate when the noble Lord said he was right, so I am not going to say whether or not my noble friend was right because I do not know what he said. As regards the Prime Minister’s views on the International Court of Justice, I am afraid I do not know as I have not asked him.

[Lord Dubs (Lab)]

My Lords, the Minister more or less said that the Government had no intention of leaving the European Convention on Human Rights—he is shaking his head. In which case, are the Government aware that if they tamper with the ECHR, they are also tampering with the Good Friday agreement, which is linked to it? Is the Minister furthermore aware that there is still the Human Rights Act that the Government are talking about getting rid of? There is the 1951 refugee convention. There is the convention against torture and the International Covenant on Civil and Political Rights. There is a range of conventions, treaties and agreements. Are the Government saying that they are all liable to be changed as a result of the Supreme Court decision?

[Lord Sharpe of Epsom (Con)]

I did not say what the noble Lord asserts about the ECHR. I said that I do not know. The fact is that this decision was a domestic decision, not a European one. I am well aware that the ECHR is a cornerstone of the Good Friday agreement, and of course we recognise the significance of that. However, I reiterate that the Prime Minister has committed to stopping the boats and to removing barriers if necessary. The detail and any implications of doing so would obviously be carefully considered at the time.

[Lord Hamilton of Epsom (Con)]

Has my noble friend had any luck in securing the conviction of so-called human rights lawyers who tell illegal migrants to throw away their passport and pretend that they come from a war zone when they do not or tell them to say that they are subject to child trafficking or modern slavery? Surely these people should be convicted and should not be part of the legal system in any way whatever.

[Lord Sharpe of Epsom (Con)]

If my noble friend is right in his assertions, yes, they should be convicted, but I do not what has happened with prosecutions and convictions in that space. I will endeavour to find out.

[Lord Kerr of Kinlochard (CB)]

Does the Minister recall that the International Agreements Committee criticised the form taken for the previous agreement with Rwanda—a memorandum of understanding—and thought it should have been a treaty, partly because it was so weighty and partly to provide this House and the other place with an opportunity to scrutinise it properly. I think this new agreement will be scrutinised properly in this House so I am very glad that it is taking the form of a treaty, which will enable us to do that. The Statement said that it will be amended

“to make it clear that those sent”—

to Rwanda

“cannot be sent to any country other than the UK”.

That is what the Home Secretary said in the other place. How is that consistent with our Illegal Migration Act, which says that those who come illegally, in its terms, to this country can never be admitted to this country, will be sent to Rwanda and will be processed there by Rwanda for asylum in Rwanda?

The Minister said that other countries are seeing what we are doing and following suit. With respect, that is not the case. We are the only country that is saying, “If you come by a route that we do not like, we refuse to look at your claim”. We are telling people they may claim asylum in Rwanda but they can never come back here. No other country is doing that. Other countries are considering outsourcing the process and having the processing done abroad, but then the people could go on claiming asylum in the country they intended to go to. How does the Minister reconcile the statement that these people will never be sent to any country other than the UK with the Act, which we spent so long debating here and which I thoroughly disagreed with, that says they can never be sent back to the UK?

[Lord Sharpe of Epsom (Con)]

First, I agree with the noble Lord about the International Agreements Committee and the previous comments made there. The fact is that the International Agreements Committee is now getting its wish. Legally enforceable treaties should be the vehicle of choice; obviously, it will be scrutinised in both Houses of Parliament. As regards the apparent anomaly between what the Home Secretary has said and what the noble Lord has just pointed out, to respond to that would be to speculate as to what will be in the forthcoming legislation when I simply do not know. I will make sure that point is well made, and I hope to come back to the noble Lord with a strong answer very soon.

[Baroness Hamwee (LD)]

My Lords, the Supreme Court quite rightly emphasised the importance of the experience of the UNHCR, which had been disregarded. Are the Government now consulting with it and with other relevant NGOs?

[Lord Sharpe of Epsom (Con)]

My Lords, the UNHCR was not disregarded by the Court of Appeal; that was really the subject of the Supreme Court’s decision. It very much took the court at its word. As I already said, the Government have made a lot of effort to pre-empt the Supreme Court’s decision by doing some of the things that were suggested by the Court of Appeal. Having said all that, we of course maintain close co-operation with all our international partners whether they be states, NGOs or whatever.

[Lord Browne of Ladyton (Lab)]

My Lords, on 15 November, last Wednesday, the Home Secretary told Parliament in the other place that the Government have

“for the last few months”—[Official Report, Commons, 15/11/23; col. 649.]

been working in Rwanda, building capacity—of decision-makers, I presume—and trying to amend the agreement with Rwanda. Since the Appeal Court decision in June this year, the Government have known that our courts thought there was a real risk of claims being wrongly determined in Rwanda, resulting in asylum seekers being wrongly returned to their country of origin. Can the Minister help me? Where in our deliberations on the then Illegal Migration Bill was either the House of Commons or our House told that this training was going on because the Government thought that real risk needed to be engaged with, or that the treaty that had been entered into was being renegotiated? If we were not told, why not?

[Lord Sharpe of Epsom (Con)]

I was not present in all the debates regarding the Illegal Migration Act so I cannot honestly answer that question: I do not know whether we were told. I do not know whether the subject came up, whether it was a subject for discussion or any of those things. I am not sure it was relevant to the debates—maybe it was, maybe not; I do not know. I will endeavour to find out and come back to the noble Lord.

[Lord Horam (Con)]

My Lords, has the Minister seen the suggestion of Lord Sumption that the Rwanda scheme would be more acceptable if more of the assessment were done by British officials rather than Rwandan officials? Will he undertake to look into that in any review of the situation?

[Lord Sharpe of Epsom (Con)]

My noble friend makes a good point. I will absolutely take that back. We have been capacity building in Rwanda—the noble Lord just referred to it—and I know that a lot of that work is ongoing.

[Lord Paddick (Non-Afl)]

My Lords, press reports at the weekend stated that, between 2020 and 2022, 100% of asylum claims by people from Afghanistan and Syria were rejected by the Rwandan authorities while almost 100% of asylum claims by people from Afghanistan and Syria were accepted by the UK authorities. How can the Government maintain that Rwanda has been treating asylum seekers fairly in the light of these statistics?

[Lord Sharpe of Epsom (Con)]

My Lords, it does not matter whether the Government assert that we have been treating them fairly; the fact is that the Supreme Court has ruled otherwise. As I said, we are capacity building; we are working with the Rwandans. We are working on a new treaty. I am sure that the noble Lord’s concerns will be addressed in the fullness of time.

Abortion Clinics: Safe Access Zones

Lord Sharpe of Epsom Excerpts

Monday 20th November 2023 Lords Chamber

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

My Lords, the Government will issue non-statutory guidance to ensure that law enforcement agencies have a clear and consistent understanding around enforcement, and that abortion service providers and protesters are clear as to what is expected under the new law. The Government will launch a public consultation on the contents of the guidance at the earliest possible opportunity, and following consultation we anticipate commencing Section 9 in the spring of 2024.

[Baroness Deech (CB)]

My Lords, there is a great deal of foot-dragging in this. Both Houses supported the Public Order Act six months ago, which was to protect women accessing legal healthcare for their necessary rights. Yet in these months the most cruel demonstrations are going on outside clinics—for example, people wearing bodycams and holding out posters saying that babies are being murdered there. I do not see that a consultation is necessary; I urge the Minister not to delay the will of Parliament any longer but to get on with it and protect women from these very cruel demonstrations.

[Noble Lords]

Hear, hear!

[Lord Sharpe of Epsom (Con)]

My Lords, I quite agree with the noble Baroness—it is totally unacceptable for anybody to be harassed or intimidated simply for exercising their legal right to abortion services. Personally, I find that very depressing to see. However, in terms of the public consultation, this is new legislation on an emotive topic, and there are strong views on all sides of the debate. Determining the appropriate balance will not always be straightforward. Therefore, to make sure that the legislation can be implemented effectively—that is the point—the Government have decided to launch a public consultation on the non-statutory guidance for safe access zones.

[Baroness Thornton (Lab)]

My Lords, we need to take account of the fact that the previous Home Secretary voted against safe access zones and has a history of opposing abortion rights. The noble Lord needs to give us an example of where—when the will of Parliament is so clear, as it is in this case—it has been necessary to have this kind of public consultation. We are very familiar with pre-legislative scrutiny and consultation in this House, but why are we seeing months-long delays? Can the noble Lord please give us a timeline?

[Lord Sharpe of Epsom (Con)]

I say to the noble Baroness that I already have: it will be commenced by the spring of 2024, and I am very happy to commit to making sure that that happens. The guidance is not straightforward because of the broad nature of the prohibited behaviours. For example, it is a criminal offence to intentionally or recklessly influence, which means that members of the public, the police and prosecutors will benefit from being aware of what could be criminalised within the zones. I totally take the noble Baroness’s point: I want to see this happen as soon as possible too.

[Viscount Hailsham (Con)]

Does my noble friend agree that these women will be in a very fragile state of mind, and it is highly undesirable that they should be subjected to coercive behaviour by the opponents of abortion?

[Lord Sharpe of Epsom (Con)]

I completely agree.

[Baroness Barker (LD)]

Can the Minister confirm whether the Home Office plans to be in touch with local councils, abortion care providers and the police in coming weeks to discuss how these zones are best implemented?

[Lord Sharpe of Epsom (Con)]

As I say, there will be a public consultation, and I hope that all those whom the noble Baroness mentioned will engage with the consultation process.

[Lord Carlile of Berriew (CB)]

Will the noble Lord guarantee that Section 9 will be in force and implemented before the next general election?

[Lord Sharpe of Epsom (Con)]

That would invite me to speculate as to when the next general election might be.

[Baroness Finn (Con)]

Can my noble friend tell the House what advice will be given to police in the interim period to deal with those causing harassment and intimidation at the gates of abortion clinics?

[Lord Sharpe of Epsom (Con)]

My noble friend will be aware that a number of powers already exist, particularly around public space protection orders, which have been issued in a number of cases. Some guidance is already being deployed to local authorities, which have the powers to impose those public space protection orders where harmful behaviours are having, or are likely to have, a detrimental effect on the quality of life of those in the locality. There is plenty that the police can do already, but, as I say, the commencement will be by spring 2024.

[Lord Anderson of Swansea (Lab)]

My Lords, when will the consultation period end?

[Lord Sharpe of Epsom (Con)]

I am afraid that it has not started yet; it will start imminently—and I mean imminently. The draft is ready; it is just a question of bureaucratic dotting of “i”s and crossing of “t”s. As soon as that is done, I will come back to the House to update your Lordships on the precise timelines of the consultation.

[Lord Hogan-Howe (CB)]

My Lords, I am assured by the Minister’s own commitment to this legislation; he has made a clear statement. However, the concern that I have—having argued and voted for this legislation—is that the victims are still worried. They are already terrified sometimes when having this treatment and are further intimidated by some of the protests. Does the Minister agree that the consultation, important as it is, should not take so long? It is not very complex to implement; we have implemented greater criminal changes far more quickly.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

First, I associate myself with the noble Lord’s remarks about the victims; I completely agree with everything that he said on that subject. I have tried to explain why the consultation will take the time that it will. I would like it to be concluded as speedily as possible, and I promise to come back to the House and update on that timeline.

[Baroness Burt of Solihull (LD)]

My Lords, anti-abortion protesters and groups were spreading their misinformation and distressing images when I was at university, which is more years ago than I care to admit. Their horrific images stay with me to this day. They are still trying to intimidate women outside abortion clinics all these years later—so what is there to consult on? Does the Minister agree that the Government should stop the intimidation and the additional suffering that those women are going through once and for all?

[Lord Sharpe of Epsom (Con)]

I agree, but I also say that the protesters should stop their intimidation now and leave those women well alone, as the noble Baroness suggests. I have tried to explain the context of the consultation and the reasons for it. There is nothing more to say on that at the moment.

[Lord Cormack (Con)]

My Lords, although no one could defend intimidation or harassment, there are those who quietly pray. This came up when we debated the subject earlier in the year, and considerable concern was expressed in a number of quarters of the House. Can my noble friend assure me that the consultation that will follow will take account of those who merely stand quietly and pray silently?

[Lord Sharpe of Epsom (Con)]

My noble friend should probably consult some of the providers to find out the precise types of behaviour happening outside their clinics. Plenty of examples are available online. The most recent I saw was on 4 November from BPAS. However, training will have to reflect Article 9 of the ECHR; as the House knows, that is around the freedom of expression and manifestation of religion and belief. I also say that those rights are heavily qualified.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, having spent many an hour debating the clause, I think it requires careful consideration. I want to talk about context. First, people have been arrested for praying outside abortion clinics. However wacky we might consider it, that is a free-speech matter. Secondly, as the police do not seem to be able to know what intimidation is—whether outside a Labour MP’s office or on the streets in terms of anti-Semitism—I hope the consultation will be as helpful as possible so that they arrest the right people and do not end up policing easy targets instead.

[Lord Sharpe of Epsom (Con)]

The noble Baroness invites me to speculate on operational policing. As we discussed many times from this Dispatch Box recently, I cannot and will not do that. What I can say is that, in my understanding, some of the context around previous arrests is that they are more to do with breach of PSPOs than with the behaviour that she describes. In that case, I think it was repeated breach of a PSPO, so I am not sure that she is completely correct in her assertion, but I take her point.

[Lord Pannick (CB)]

My Lords, the Minister spoke earlier about the need for the guidance to address an appropriate balance. He spoke a few moments ago about the relevance of freedom of religion and freedom of expression. Was not the whole point of the parliamentary debates earlier this year to specify in legislation where the balance lay? Surely it is therefore time to get on with implementing it.

[Lord Sharpe of Epsom (Con)]

Again, I have tried to explain the context. I do not think those two things are entirely mutually exclusive. The fact is that some of the language in the law is relatively unusual. Therefore, the consultation is necessary to make sure that people are aware of what it is.

[Lord Watts (Lab)]

Does the Minister agree that people who wish to pray can do that at home or in church? They do not have to do it outside an abortion clinic. Does he further agree that plenty of people around the world have found solutions to this problem? Why do we not implement the same legislation that other countries have to protect these women?

[Lord Sharpe of Epsom (Con)]

We have legislation which we are discussing now, and I am not going to go against the will of Parliament and suggest alternative forms of legislation. The noble Lord is quite right: people are perfectly at liberty to pray wherever they wish. Intimidating behaviour, however, crosses the line.

Policing of Marches and Demonstrations

Lord Sharpe of Epsom Excerpts

Monday 13th November 2023 Lords Chamber

[Baroness Deech]

To ask His Majesty’s Government what assessment they have made of the policing of recent marches and demonstrations.

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

My Lords, the police are operationally independent: it is their decision how they choose to police a protest and they are accountable for that. The Metropolitan Police used a range of powers to minimise disruption and disorder. On Saturday police made 145 arrests, most of which were linked to the counterdemonstration; however, the police continue to investigate other offences. The police have the Government’s full backing to use all the powers at their disposal to ensure that the perpetrators face the full force of the law. As is right, the Government will continue to hold the police to account. I think it is also right to acknowledge that Remembrance Weekend events passed without disruption.

[Baroness Deech (CB)]

My Lords, freedom to speak and to march and police discretion are all pillars of our constitution, but I have never before in my lifetime seen mobs marching through the streets alongside some who call for violent jihad and the death of Jews and waving swastika signs. Once the Saturday march was under way, why were the police posing with a child dressed as a terrorist while protesters rampaged threateningly outside a synagogue? Many of us call on the police to apply the law to those who are guilty of offences under Section 5 of the Public Order Act aggravated by religious and racial hatred, public nuisance and glorifying terrorism. It is a worldwide problem. Anti-Semitism is on parade. Jews cannot fix it on their own; we need people with us. Does the Minister agree that we need a cry of solidarity?

[Lord Sharpe of Epsom (Con)]

I wholeheartedly agree, and I was very emphatic on that point at the Dispatch Box last week. We saw vile examples of anti-Semitism by a minority at the pro-Palestine march. The fears that our Jewish community has experienced over the weekend and the days leading up to it are shocking and disgusting, as I said last week. There is no place for hate on Britain’s streets, and the police have confirmed that investigations are ongoing.

[Baroness Uddin (Non-Afl)]

My Lords, as someone who marched with hundreds of thousands of very peaceful protesters last Saturday, I witnessed not one single incitement to hatred of anyone. It was a march for peace until the EDL came on to the scene, and we all saw what happened. Will the Minister assure all those who marched for peace that they will not be chequered by the way they are being depicted as jihadis? The simple fact is that they were not.

[Lord Sharpe of Epsom (Con)]

My Lords, a quick surf of the internet this morning would suggest that the noble Baroness is wrong. I suggest that trying to conflate the activities of the violent thugs who tried to invade the Cenotaph and those of the marchers, some of whom were indeed peaceful, is also wrong. The fact is that 15 officers were injured at the Cenotaph, two of whom required hospital treatment, and my best wishes go to those officers. I think the police behaved entirely appropriately in dealing with the violence, and I seriously hope that they also deal with those marchers who were doing precisely the things that the noble Baroness has alleged they were not.

[Earl Russell (LD)]

My Lords, in light of the unplanned departure of the previous Home Secretary and the extraordinary and deeply concerning violent events witnessed on the streets of London this weekend, can the Minister confirm whether the new Home Secretary will use more restrained language, to ease tensions on our streets, and refrain from interfering in the operational independence of the Metropolitan Police?

[Lord Sharpe of Epsom (Con)]

On the second part of the question, the previous Home Secretary did not interfere with the operational independence of the Metropolitan Police. On the first part, I have not yet spoken to the new Home Secretary, but I wish him very well in his new role.

[Lord Walney (CB)]

My noble friend is right that there has been an explosion of anti-Semitism in the capital and across the UK since 7 October. These marches are at the very least a factor in aggravating that. If the police, in exercising their judgment, feel that there is not sufficient trigger at the moment to say that there is a threat of serious public disorder, which is the current bar, is there not a case for re-examining the bar for asking for these marches to be banned, so that the cumulative effect on many members of the Jewish community can properly be taken into account?

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very good point. The Home Secretary has reserve powers and some legislative tools that enable intervention and direction, but those powers may be used only in line with statutory tests and public law principles and in very exceptional circumstances. The Metropolitan Police has not asked for that sort of intervention. He is quite right that the Government have been in regular contact with the police over the use of their powers to manage protests. Where we identify gaps in the legislation, we will seek to address them. As was widely reported this morning, that is still under review.

[The Lord Bishop of St Albans]

My Lords, any violence and threat is to be deplored, wherever it comes from. I congratulate the police, who did a superb job in very difficult circumstances. Of course there will be groups of people pushing the boundaries and acting unacceptably. The danger of the media is that it gives the impression that the only game in town is the marches and demos, but many on these Benches and other Members of this House have been meeting leading Israelis and Palestinians in our local communities and finding that there are people desperately trying to reach out to others and thinking about how we can take this forward. What are His Majesty’s Government doing at the moment to mobilise some of our leading Israelis and Palestinians to try to enable talks about how we might find a more positive narrative as we go forward?

[Lord Sharpe of Epsom (Con)]

The right reverend Prelate makes an extremely good point. I commend his activities and those of his colleagues and other faith leaders in trying to find civilised solutions to this problem. I am afraid I do not know what His Majesty’s Government are doing to try to encourage the sort of interactions he mentioned, but it deserves to be mentioned, on proportionality, that the organisers of the pro-Palestinian marches have a responsibility. Peter Tatchell, whom many in the House will know, was blocked from marching with the pro-Palestinians for carrying a sign that said:

“End Israel’s occupation! End Hamas’s sexist, homophobic, anti-human rights dictatorship!”


That is pretty disgraceful. Everybody needs to exercise proportionality in this.

[Lord Paddick (Non-Afl)]

My Lords, I declare an interest as set out in the register. Anti-Semitism is unacceptable in any setting, but does the Minister agree that arresting people in the middle of a mass protest can result in serious disorder and injury to police officers, as can the police attempting to prevent people who are determined to protest from doing so, as we saw with the right-wing demonstrators on Saturday?

[Lord Sharpe of Epsom (Con)]

My Lords, on this I am very happy to defer to the noble Lord’s extensive experience of policing protests of this type. It is self-evident that if you wade into a crowd, there is a chance that you will inflame tensions. The police are operationally independent and I will not judge what they did, but their approach makes some sense to me in that context.

[Lord Coaker (Lab)]

My Lords, as the right reverend Prelate did, I thank the Metropolitan Police and all the officers who were on the streets of London ensuring that Armistice Day events were not disrupted, facing disgraceful far-right violence and assaults while working to pursue appalling, vile anti-Semitism—as the noble Baroness, Lady Deech, pointed out to us—and other hate crimes. Does the Minister agree that it would have been helpful in the run-up to these events to have had a Home Secretary who calmed tensions rather than using language that inflamed some of the protests and policing that we saw? Above all, despite the Minister’s points to this House, will the new Home Secretary ensure that never again do we have a situation in which a Home Secretary of this country seems to question the operational independence of the police? Is it not one of the fundamental parts of our democracy that the police can police without fear or favour?

[Lord Sharpe of Epsom (Con)]

I agree with the noble Lord. It is, as he knows, governed by a pretty rigorous protocol. I went into the details of that protocol last week, and I can do it again if anybody wants to hear it—I suspect they do not.

The previous Home Secretary is no longer in post, so debating what she did or did not say seems moot. As regards the new Home Secretary, I have not spoken to him and I do not know what he is thinking.

[Lord Austin of Dudley (Non-Afl)]

My Lords, it is no surprise that we are seeing Nazi-level propaganda and incitement of terrorism on the streets of London when some of the organisations behind these marches have had connections with a Hamas leader who lives in the UK. What is being done to investigate the links between those organisations and proscribed terrorist groups?

[Lord Sharpe of Epsom (Con)]

I cannot answer that question, but I certainly hope the police are investigating.

[Lord Cormack (Con)]

My Lords, I revert to the point made by the right reverend Prelate the Bishop of St Albans. It would be a marvellous beginning for the new Home Secretary if he were to call in leaders of the Jewish community—who have the admiration and respect of us all—together with those responsible Palestinians who have a legitimate cause for concern at the destruction and deaths in Gaza. If he were to do that, using moderate language—which I am sure he would—it would help to ease tension and to bring together people who have a common cause.

[Lord Sharpe of Epsom (Con)]

I am happy to reflect my noble friend’s opinion to the new Home Secretary when I speak to him.

[Lord Hain (Lab)]

My Lords, I agree with the noble Baroness, Lady Deech, that the examples she gave are completely unacceptable and should be met with a firm response. The degree of anti-Semitism in the country at the moment is deeply shocking, as is the degree of racism and Islamophobia. That is something we should commonly confront, but I urge the Government to be very careful about curbing protests and the right to march through London. In 1936, when anti-fascists confronted Mosley’s mob swaggering through Jewish communities, many of the actions of those anti-fascists could have been regarded as disorderly, but they stopped them and they stopped that wave of anti-Semitism. Similarly, many of the actions I helped organise through the Anti-Nazi League in the late 1970s saved local Jewish communities and black communities from assault. Be very careful about curbing the right to march peacefully.

[Lord Sharpe of Epsom (Con)]

I entirely agree with the noble Lord.

[Lord Wallace of Saltaire (LD)]

My Lords, we are told that two of those arrested in Paris for painting anti-Semitic slogans on French synagogues have said to the police that they were acting under orders from Russian sources. Are the Government looking to see whether there is any element of foreign interference in some of these protests? It is in the Russian interest to stir up disorder in this country, and this is a very easy way to do it.

[Lord Sharpe of Epsom (Con)]

My Lords, I have absolutely no idea.

[Baroness Hoey (Non-Afl)]

One of the saddest pictures we saw over the weekend was of the two poppy sellers—an elderly couple in Victoria station—having to be gradually moved and shifted because of large numbers of loud and very angry protesters around them. What annoyed me, and I think vast numbers of members of the public, was that the police standing there did nothing to help those poppy sellers. They seemed to be more interested in supporting and helping the demonstrators. Did the Metropolitan Police Commissioner give an outright order to rank and file police that they had to go very easy with protesters but stamp down on anything else that seemed to be out of order?

[Lord Sharpe of Epsom (Con)]

My Lords, I do not know what direct orders the Metropolitan Police Commissioner gave. As I said earlier, the response to the Cenotaph, where violence was being deployed, was swift and appropriate—not that it is my call to judge the police’s actions; that is for the courts. I do not know whether he gave those sorts of orders. I was at Victoria station by chance on Saturday afternoon, and I have never felt more uncomfortable in this country because of the tension. It was palpable in the air. It was disgraceful.

[Lord Mann (Non-Afl)]

My Lords, I have visited Jewish communities across the United Kingdom over the last few weeks. Everywhere the message is the same: Jewish people and Jewish families are scared. Does the Minister agree with me that the increased police presence we have seen in Jewish communities, be it in Leeds, Manchester, London or elsewhere, has been essential in ensuring that people have been kept safe? Can we be certain that this increased presence will continue for as long as it is needed?

[Lord Sharpe of Epsom (Con)]

I certainly hope so. Police forces up and down the country have stepped up their neighbourhood patrols to support local Jewish and Muslim communities, including visiting schools, synagogues and mosques. We have seen a rise in the anti-Semitism that the noble Lord describes; that is appalling. I certainly hope that the police’s response will stay in place for as long as it is needed.

[Lord Harris of Haringey (Lab)]

My Lords, I refer to my policing interests in the register. There were clearly images of people on those marches over the weekend doing appalling things. I hope the Metropolitan Police and other police forces are using those images to track down the individuals concerned and then to take action against them. No doubt the Minister will be able to confirm that this is the case. Can he also draw attention to the huge march against anti-Semitism that took place in Paris? Does he think it would be appropriate if something similar happened in this country?

[Lord Sharpe of Epsom (Con)]

The police have said that they are investigating those images so, yes, I think I can confirm to the noble Lord that this is happening. I would certainly like to see a march against anti-Semitism, and I would join it.

Metropolitan Police: Operational Independence

Lord Sharpe of Epsom Excerpts

Thursday 9th November 2023 Lords Chamber

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

My Lords, with the leave of the House, I shall now repeat in the form of a Statement an Answer given in another place:

“Mr Speaker, since Hamas’s sickening terrorist attack in Israel, we have seen thousands of people demonstrating on our streets in the UK. Thanks to the tireless work of the police, the majority of those events have passed without incident. Sadly, however, we have seen examples of suspected criminality, including arrests for assaults on officers, racially aggravated public order offences and support for a terrorist organisation. As the Prime Minister and the Home Secretary have said, it would be disrespectful and demonstrably wrong for protests to take place on Armistice Day and Remembrance Sunday.

It is right that the police are operationally independent of government. This is a fundamental principle of British policing. The Metropolitan Police asked protesters to postpone, but the request was refused. The Prime Minister has sought reassurances from the Metropolitan Police Commissioner that remembrance events should be protected. It is for the Metropolitan Police Service to decide whether to apply to the Home Secretary to ban any march. An application has not been received. However, the Home Secretary will of course fully consider any application if one is made.

The police have comprehensive powers to deal with individuals who vandalise or damage our cultural monuments. It is a criminal offence for a person without lawful excuse intentionally or recklessly to destroy or damage any property belonging to another. The police have a duty to protect the public by detecting and preventing crime, including offences of this nature. The police also have powers to deal with activities that spread hate or deliberately raise tensions through harassment or abusive behaviour. This includes the power to impose conditions on protests where they reasonably believe the protest may result in serious disorder, serious damage to property or serious disruption to the life of a community, or where the purpose of the protest is to intimidate others. The police can impose any condition they deem necessary to prevent these harms occurring, including setting the location, route and duration of the protest. The use of these powers is an operational matter for the Metropolitan Police Service. It has deployed significant resources to recent protests, and we have seen it take action to prevent vandalism as part of its response to protests in this area.

This weekend should be about remembering those who made the ultimate sacrifice in defence of our country. The Home Secretary, Policing Minister and I will always back the police to take action to prevent serious disruption and to take a zero-tolerance approach towards criminality.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Home Secretary’s article in today’s Times newspaper brands the Metropolitan Police as biased over pro-Palestinian protests, and she reportedly refused to tone down her article at the request of the Prime Minister’s office. It is extremely unusual for the Prime Minister’s official spokesman to say that the article was not cleared by their office and air their dirty washing in public. Does the Minister believe that the Metropolitan Police is biased? Does he believe that the Home Secretary’s article breaks the policing protocol? Does it constitute improper political interference? Does the Minister agree with me that the police must be given proper support to facilitate remembrance events, to continue to provide protection and reassurance to communities facing the threats of hate and extremism, and to maintain order at peaceful protests? Stoking division and undermining the police will not achieve these ends.

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Lord has raised operational independence—in effect, therefore, the policing protocol—and I shall go into that in some detail. The police are operationally independent, but the concept of operational independence is not defined by statute. However, it remains a fundamental principle of British policing. The Policing Protocol Order 2023 sets out how the various actors in the system—the Home Secretary, PCCs, mayors with PCC functions and chief constables—should exercise their roles and responsibilities. It seeks to clarify the operational independence of chief constables, noting that operational decisions on the deployment of police officers are matters for chief constables. The order also makes it clear that:

“The Home Secretary is ultimately accountable to Parliament and charged with ensuring the maintenance of the King’s Peace within all force areas, safeguarding the public and protecting our national borders and security”.


There are no plans to change the policing protocol; that is incredibly clear. I of course agree with the noble Lord that protecting our communities and keeping them safe should be the primary responsibility of the police, and it is incumbent on all of us to give them the support they need. However, we must also acknowledge that operational independence does not provide a blanket exemption from criticism about broader policing issues.

[Lord German (LD)]

My Lords, the words of the Home Secretary have consequences for our policing and our police services and for the safety that people feel in our country. Will the Minister therefore confirm that the Metropolitan Police has followed the law and the evidence and has made a judgment which sits, and rightly so, within the operational independence of the police services? Will the Home Secretary concentrate on running the Home Department rather than running her leadership campaign? If she cannot, she should be replaced.

[Lord Sharpe of Epsom (Con)]

My Lords, I have already spoken about the operational independence of the police, which I think we all regard as sacrosanct. The Answer that I repeated included the line:

“it would be disrespectful and demonstrably wrong for protests to take place on Armistice Day and Remembrance Sunday”.

Actually, I do not think that my right honourable friend the Prime Minister used the word “demonstrably”, but what he did say was “disrespectful”. However, he went on to say:

“part of that freedom is the right to peacefully protest. And the test of that freedom is whether our commitment to it can survive the discomfort and frustration of those who seek to use it, even if we disagree with them. We will meet that test and remain true to our principles”.

I happen to think that is exactly right and describes the country I am proud to be a citizen of.

[Lord Sandhurst (Con)]

My Lords, as we have heard, Peel’s fifth principle requires the police to demonstrate complete independence of policy. Of that, it is equally plain that my noble friend the Minister is well aware. Will he therefore remind the Home Secretary of this principle, since her public criticisms of the Metropolitan Police make it impossible for the commissioner to retain his operational independence or at least the appearance of operational independence, which is vital to public confidence? The Home Secretary seems either to be ignorant or to be flouting it.

[Lord Sharpe of Epsom (Con)]

My Lords, I have already referred to the policing protocol, which governs all the actors’ principal responsibilities. We should focus on taking steps to reassure the various communities that are coming under pressure; —the police are definitely doing that. Police forces up and down the country have stepped up neighbourhood patrols to support local Jewish and Muslim communities, including visiting schools, synagogues and mosques. Sadly, we have seen a significant increase in hate crime reported since Hamas’s terrorist attack in Israel, and the Metropolitan Police has made a number of arrests to date linked with that. That shows that the Metropolitan Police is more than capable of exercising its responsibilities and is doing a good job.

Perhaps I may say from a personal point of view that the virulent anti-Semitism that we have seen makes me feel physically sick. My Jewish friends are afraid, and in this country that is disgusting.

[Lord Harris of Haringey (Lab)]

My Lords, I refer to my policing interests in the register. The tone of what the Home Secretary has said implies that she thinks that she should have received a request from the Commissioner of the Metropolitan Police. Does she therefore think, given that the threshold is set sensibly at a high level to protect freedom of protest, that the definition and the threshold should be changed, and if so, to what? What advice did she receive on the consequences of trying to prevent a march, in terms of policing resources, compared with a more targeted approach to deal with troublemakers in a march?

[Lord Sharpe of Epsom (Con)]

The noble Lord invites me to speculate on what the Home Secretary thinks, which obviously I am not capable of doing. I refer him back to the comments that I have just repeated, made by the Prime Minister, and the fact that I have restated the policing protocol, which governs all these responsibilities very clearly.

[Lord Hogan-Howe (CB)]

My Lords, first, I apologise that I did not hear the Minister’s Statement—I was unaware that it had begun until I came into the Chamber.

To some extent, I will repeat what I said in last night’s speech. It is disappointing that all this debate is taking place in public. These are difficult decisions for politicians, as I have acknowledged in the past, and for police officers, to decide where they draw the line about either preventing protests or allowing a protest that might cause offence. It is not at all easy, particularly with such an emotional issue as the Cenotaph and Remembrance Day. There is an awful lot of passion involved on all sides.

However, as the noble Lord, Lord Harris, said, the process is that the police should decide whether they can police this march and whether they can apply conditions which would make the march less of a problem. Only if that will not work could they then consider having a ban, providing that it meets the high threshold of serious violence. What concerns me is that the making of these fine distinctions and wise judgments is taking place in public. It seems that rocks have been hurled across the press, when I would hope that these conversations could be had privately, for better effect and for the reassurance of the public.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I commend the noble Lords, Lord Hogan-Howe and Lord Paddick, for their comments last night in the humble Address debate, when they outlined the challenges of operational policing in these contexts. I agree that, in a perfect world, these conversations should be held in private. However, this is a very difficult international situation, and passions are running high.

[Lord Jackson of Peterborough (Con)]

My Lords, I draw the House’s attention to my own policing interests. Would the Minister recapitulate his comments earlier that operational independence is not an absolute, either in legislation or in practice, and that the Home Secretary is quite entitled, under Section 40 of the Police Act 1996, to direct senior police officers in the public interest, and that that will always be subject to judicial oversight?

[Lord Sharpe of Epsom (Con)]

I would say to my noble friend that the powers conferred on the Home Secretary by Section 40 of the Police Act 1996 are quite specific and rarely used. The Home Secretary has statutory powers to give directions to local policing bodies, but they are limited to circumstances where she would consider that remediation is required because the force, or part of it, is failing to fulfil its functions effectively, and the police force and HMICFRS have been given the opportunity to make informed representations and proposals. As far as I am aware, that power has been used only on a couple of occasions, which were very specific. In 2012, the then Home Secretary required all forces to collaborate on the provision of air support and, in 2019, those powers were used to require Warwickshire and West Mercia police to take a little longer to unentangle themselves from their previous collaboration.