National Security Bill

Lord Sharpe of Epsom Excerpts

2nd reading
Tuesday 6th December 2022 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 first responsibility of any Government is to ensure the safety of their citizens, both at home and abroad. For this Government, it is not just a responsibility but an absolute priority. The introduction of the Bill is a result of the manifesto commitment to ensure that our law enforcement and intelligence agencies have the powers they need to combat the evolving nature of state threats. That is why we are adopting a robust and front-footed posture. The Bill will confront and tackle state-threat activity that may seek to undermine the democratic principles of the United Kingdom and the security of its people.

I know noble Lords will all join me in paying tribute to those in our law enforcement and intelligence agencies, who go above and beyond to keep us all safe every day. They are the very best of us and they have my enduring gratitude, respect and admiration. For all that they do, we must hold up our end of the bargain and ensure that they have the necessary tools and powers to do their vital work, which is precisely what we will do through the measures in the Bill.

It is worth looking back for a moment to understand the context in which we are discussing these matters. Russia’s recent illegal invasion of Ukraine has shown the essential need to bolster our national security and ensure that we have the ability to counter state threats. The House will also recall the events in Salisbury in 2018, which are a clear reminder that we need laws that seek to deter serious harm from being inflicted on our soil. As that outrageous episode underlined, the dangers we face are real. We must continue to develop our robust and effective apparatus and act now to further harden our resilience. This is why the National Security Bill introduces enhanced powers for our intelligence and law enforcement agencies to do even more to counter state threats and strengthen the security of the United Kingdom.

States are becoming increasingly assertive and sophisticated in how they advance their objectives and undermine the safety and interests of the UK. It is therefore essential that we are able to deter, detect and disrupt state actors that seek to harm the UK by covertly targeting our national interests, sensitive information, trade secrets and democratic way of life. The National Security Bill will protect these interests and uphold our democratic principles, consolidating the safety of our citizens through essential new measures designed to address an ever-evolving threat. We are determined to advance the safety, security and prosperity of the UK, and the Bill is designed to achieve precisely that.

I will now speak to the key measures set out in the Bill. The Bill will modernise the law against espionage, replacing the 1911 to 1939 Official Secrets Acts. New offences of foreign interference have been carefully designed to tackle the threat from any foreign power that chooses to act with malign intent. It is important to stress that these offences are actor-agnostic, and any state or individual seeking to harm the UK will be met with the full force of these newly established powers and tools, regardless of their origin.

These offences, and the others introduced in Part 1, will enable the disruption of illegitimate influence by foreign states intent on advancing their own interests or seeking to damage the UK. It will be an offence for foreign powers improperly to interfere with our democracy and civil society through covert influence, disinformation and attacks against our electoral process.

The Bill also has police powers designed to address the specific threat of foreign power activity. There are specific powers of arrest and detention which reflect the threats posed by such actors. There are also additional police powers to support investigations into foreign power threat activity, focusing on obtaining information on financial activity. These powers will ensure that the police have the tools they need to fully investigate state threat activity and bring those acting for foreign powers against UK interests to justice.

Furthermore, the amendment to the Serious Crime Act 2007 will provide essential protection to those who discharge authorised national security functions on behalf of His Majesty’s Government. The amendment will enable more effective co-operation with our international partners. It is about addressing operational challenges and removing the personal risk that trusted and dedicated individuals face for carrying out their proper, official duties on behalf of our intelligence community and Armed Forces. I welcome the comments of Sir Alex Younger, the former head of our Secret Intelligence Service, who correctly highlighted that it is morally wrong that the risk of liability should sit with individual officers acting on behalf of our agencies. Any risk should rightly sit with the Government and this amendment supports that aim.

Preventing and disrupting state threats is one of the Government’s prime concerns. In a very small number of cases, it will still not be possible to bring a prosecution forward. We must therefore ensure that a backstop is in place to prevent state actors conducting harmful activities in the UK. We will introduce new state threat prevention and investigation measures, enabling restrictions to be imposed, when necessary, where there is a reasonable belief of involvement in foreign power threat activity.

It is important to clarify that this will be a tool of last resort, to be used only where it is believed that there is involvement in foreign power threat activity, there is a necessity to impose measures and a criminal prosecution is not available. These measures will also remain proportionate to the specific threat posed by an individual and be subject to rigorous checks and balances, including by the courts, to guarantee their appropriate use.

The Bill will also introduce measures to prevent the exploitation of the UK’s civil legal aid system by convicted terrorists. It will protect the UK’s civil damages system by ensuring that terrorists’ own misconduct is taken into account in an award from public funds. Courts will also be provided with the ability to order that civil damages awarded to a person are frozen or forfeited where those funds might be used to support terrorism. These provisions will allow the Government to take steps to ensure that a claimant’s damages cannot be used in this way.

With regard to legal aid, access to publicly funded services is a benefit of being part of a democratic society. This Government remain wholly committed to providing legal aid funding for those unable to resolve their issues alone, but there must be a line. Individuals who commit acts of terrorism are rejecting the values of state and society and it is right that the benefit of legal aid—a benefit of our democratic society —is removed from them. These measures will help instil a rigorous process that provides greater transparency around how public funds are distributed.

The Bill will also introduce a foreign influence registration scheme, requiring certain foreign activities and influence arrangements to be registered. The scheme’s aims are twofold: to strengthen the resilience of the UK political system against covert foreign influence and to provide greater assurance around the activities of certain foreign powers or entities.

I must make clear that we will continue to welcome open and transparent engagement from foreign Governments and entities. The scheme itself will play a critical role in encouraging such transparency and, crucially, will deter foreign powers that wish to pursue their aims covertly. The implementation of this scheme delivers a key recommendation of the Intelligence and Security Committee’s 2020 report on Russia and has been assisted by consultation with our friends in the United States and Australia, which have implemented similar schemes.

The National Security Bill is a dynamic piece of legislation that reforms our approach to hostile state actors and the threats that they pose. The introduction of our foreign influence registration scheme will ensure safety in our systems and transparency in our political processes. I look forward to engaging with all noble Lords on the Bill. I welcome discussion both today and as this essential piece of legislation progresses through this House. As I hope I have demonstrated in this speech, the Government are steadfast in their determination to protect our people, our values and our democracy. With that critical objective in mind, I beg to move.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to all who have contributed to what has been a very constructive and instructive debate. I welcome the broad support that has been shared across the House. I particularly thank the noble Lord, Lord Evans of Weardale, for his supportive comments on the foreign influence registration scheme. I also thank the noble Lord, Lord Carlile of Berriew, the noble Baroness, Lady Manningham-Buller, and others in this House who engaged us in such a constructive and supportive manner, in both this debate and the engagement sessions we have run over recent weeks.

I turn to some of the specific points that have been raised. I ought to crave your Lordships’ indulgence because this will not be a short speech; it will be a sincere effort to address all the key points in full, and not a cynical attempt to bore all noble Lords to tears. Starting with interaction between this Bill and the Online Safety Bill, which was referenced by the noble Lords, Lord Stevenson of Balmacara and Lord Ponsonby, the Government are obviously aware that we have overtaken that Bill in its passage, and we will ensure that the links between the Bills have the desired effect.

A central element of a number of offences in the Bill, alongside the foreign power condition, is the test of the safety and interests of the UK. This test is one way that legitimate activity is excluded from the scope of relevant offences. In considering any prosecution in relation to the offences to which the provisions regarding prejudice to the safety and interests of the UK apply, the court will consider the nature of the risk to the safety or interests of the UK. Case law already makes clear that

“the safety or interests of the United Kingdom”

should be interpreted as the objects of state policy determined by the Crown on the advice of Ministers. This is notably different from protecting the particular interests of those in office.

The noble Lord, Lord Wallace of Saltaire, questioned the scope of the foreign power condition in the Bill. The foreign power condition provides a single and consistent means by which a link to a foreign power can be made for the purposes of the offences of obtaining or disclosing protected information, trade secrets offences, sabotage, foreign interference and the state threats aggravating factor. The foreign power condition can be met in two scenarios: first, where a person is acting for or on behalf of a foreign power and, secondly, where a person intends that their conduct will benefit a foreign power. I reassure the House that this will not capture people who do not know, and could not possibly know, that they were acting for a foreign power. Rather, Clause 29 requires that a person knows, or ought reasonably to know, that their conduct is being carried out for or on behalf of a foreign power, or they must intend to benefit a foreign power. Of course, where our authorities consider a person to be carrying out harmful activity with a state link, this can be drawn to a person’s attention, providing a strong deterrent effect against a person continuing with that activity.

The Bill follows the Law Commission’s recommendation to replace the existing link of an “enemy”, as set out in the Official Secrets Act 1911, with a definition of a “foreign power”. We agree that incidental or tangential links to financial or other assistance from a foreign power will not suffice to meet the foreign power condition in relation to harmful conduct. Those who receive funding from foreign powers to carry out legitimate activities would not meet the foreign power condition if they were entirely separate to that funding to undertake activity covered by one of the offences in the Bill. The other place passed an amendment on Report to put it beyond doubt that any financial or other assistance must be clearly linked to the illegitimate conduct in question.

The noble Lord raised the matter of the Home Secretary. All I will say is that she has provided a detailed account of the steps she took in her letter to the HASC. I will not make further comment as this matter has been dealt with in detail at other times.

Oversight was discussed at length in the other place, as it has been today, and in the helpful engagement sessions I have held with colleagues. Although we already have oversight mechanisms in place for Part 2 of the Bill, the Government have committed to consider whether any additional oversight is required for state threats legislation. We have been considering whether it is possible to extend oversight beyond Part 2 in a way which does not duplicate or unhelpfully interfere with the responsibilities and functions of the existing mechanisms governing both the UK intelligence agencies and the police. Should we decide to extend oversight of the Bill beyond Part 2, it is important that we do not create any confusion or uncertainty. We are currently exploring the different options for appointing an individual to oversee Part 2, along with our work to consider whether there is merit in expanding oversight beyond it. It is crucial that whoever is appointed has relevant experience and skills and can provide an objective assessment of the offences and powers to ensure appropriate and transparent scrutiny.

Many have raised concerns regarding the Serious Crime Act amendment in Clause 28 of the Bill. I know there will be general understanding of why I cannot go into detail on operational issues in this place; however, let me reassure the House that the Government have been working with the UK intelligence community—or UKIC—which has now provided an operational briefing to the Intelligence and Security Committee outlining examples of why this measure is needed. The committee has acknowledged the need for the SCA to be amended and appreciates our reasoning for seeking changes, though it is not yet in full agreement on the way the problem is being addressed. I thank the committee for its engagement on this matter and welcome a collaborative dialogue going forward. I want to be clear that the Government have heard noble Lords’ concerns and will look carefully at what can be done to tackle these issues. I am grateful to all noble Lords who spoke on this clause and thank them for their thoughts. I look forward to further discussions to find the right way forward.

Let me turn to why the SCA amendment is necessary. Collaboration with international partners is a vital element of the national security work carried out by the Armed Forces and UKIC. To support this crucial work, a number of safeguards and processes are in place to ensure that this collaboration is necessary, proportionate and prevents potential wrongdoing. For example, the Government remain committed to the Fulford principles and overseas security and justice assistance guidance, which exist to ensure that our officers do not knowingly support unlawful activity. Further, UKIC’s regulatory compliance is monitored by the Investigatory Powers Commissioner’s office via regular inspections and routinely scrutinised by the Intelligence and Security Committee.

The UK has one of the most rigorous intelligence oversight regimes in world. There are several internal safeguards and processes in place which manage the way that UKIC and the Armed Forces work with and exchange information with international partners to prevent potential wrongdoing. Operational decisions are carefully recorded and made with the benefit of regular advice from specialist legal advisers to ensure compliance with domestic and international law. Intelligence officers receive mandatory training on the legal frameworks and policies which govern UKIC and Armed Forces activity. These policies include the Fulford principles, the compliance with which is assessed by the Investigatory Powers Commissioner annually and reported to the Prime Minister. UKIC’s regulatory compliance is also monitored by the Investigatory Powers Commissioner’s office via regular inspections and routinely scrutinised by the Intelligence and Security Committee.

The Serious Crime Act offences mean that individuals who have complied with all those safeguards—working under authorisation and in the interests of UK national security—may fear personal criminal liability. It is not right or fair to expect this risk to sit with trusted individuals who are acting in good faith and on behalf of our intelligence services or Armed Forces for authorised purposes. Instead, responsibility should sit with those organisations at an institutional level, where it is subject to executive, judicial and parliamentary oversight.

I want to be absolutely clear: Clause 28 is not a broad, general immunity from criminal offences and not about allowing the Government to carry out torture or commit murder. Rather, the Government are making an amendment to provide a targeted protection which better facilitates co-operation with our key overseas partners. At present, despite being satisfied that all other domestic and international law obligations are met, essential intelligence sharing with partners has been delayed or prevented in order to protect individual officers from potential liability for SCA offences. This is a having a chilling effect across UKIC and the Armed Forces, reducing the confidence of officers who make vital national security decisions every day. As a country, that means that we are less safe, because reciprocal access to intelligence facilitated by joint working is crucial to responding to the threats we face, such as terrorism.

This amendment is not about letting UKIC and the Armed Forces do whatever they want. It is about ensuring that we are protecting those working for us from prosecution and giving them the confidence that the Government have their backs. When things go wrong, it is entirely right that there is scrutiny of and accountability for the organisation’s activities, and I commend the important work of the ISC and IPCO in this space. Meanwhile, any individual found to be working beyond the proper functions of the security and intelligence agencies or the Armed Forces will remain personally liable for those actions. That is right and fair.

I have full confidence, however, in those to whom we are providing protection, including our intelligence agencies. They are expert, professional and highly trained individuals, whose judgment and skill we respect and have faith in. Not taking the opportunity to provide those individuals with assurances that they are protected would be an abdication of our responsibility to support them in keeping our country safe.

The noble Lord, Lord West of Spithead, asked why the SCA is necessary, given Section 7 of the Intelligence Services Act, which authorises the “reasonable” defence. The noble Lord, Lord Carlile of Berriew, also raised a point on those matters, so I shall try to deal with them now. While we consider that properly authorised activity to protect national security should be interpreted as being reasonable for the purposes of the existing defence to the Serious Crime Act offences, the application of the reasonable defence to UKIC and Armed Forces activity is untested. The Government believe that UKIC and the Armed Forces should have a targeted protection that provides far greater clarity and certainty to those tasked carrying out important national security work. Section 7 ISA authorisations are not available in all the circumstances in which the SCA risks arise. Those authorisations primarily apply to overseas activities, meaning that Section 7 could not generally be used to protect officers when carrying out activities in the UK. Section 7 authorisations may be sought only by SIS and GCHQ, and not by MI5 or the MoD.

The foreign influence registration scheme, or FIRS, is being created to tackle covert influence in the UK. It will strengthen the integrity of our systems and enhance the transparency of our political processes, delivering a key recommendation of the Intelligence and Security Committee’s 2020 Russia report. As I am sure noble Lords will agree, it can be only right that the UK public and our democratic institutions are appropriately protected from political interference from abroad and better informed as to the scale and extent of foreign influence in our affairs. Russia’s recent attempts to undermine European stability has brought the need for action into sharp focus. That is why the scheme will require the registration of all political influence activities where they are to be carried out in the UK at the direction of a foreign power or entity. It is important to note that the scheme will not impose restrictions on the legitimate activities of people or business. Indeed, it is there to encourage openness and transparency. To be clear: we continue to welcome open and transparent engagement with foreign Governments and entities, and we will ensure that the administrative burden of the registration requirement is kept to a minimum.

The noble Lord, Lord Wallace of Saltaire, raised two key concerns. First, he suggested that the political tier of FIRS would have a disproportionate impact on academia. That would be the case only when those bodies undertook political influence or activity. Further, no countries are now specified on the enhanced tier, so there is no activity to be registered as it now stands. If the Government list a country, we will consider what activity should be registrable, ensuring that any such registration would be proportionate.

[Lord Wallace of Saltaire (LD)]

My Lords, before Committee, could we be told how this new proposal will interact with the National Security and Investment Act, which already acts on universities? Universities are concerned that there will be a double effect, increasing the problems they face and the amount of time they will have to spend on them.

[Lord Sharpe of Epsom (Con)]

I shall get back to the noble Lord on that point.

To conclude on that issue, these decisions will be subject to parliamentary approval.

Secondly, I assure noble Lords that all the policy in the Bill is subject to collective agreement and has the support of the full Government. It is also important to note that the Government undertook a consultation on the Bill, including FIRS, in the summer of 2021, and ran targeted engagement with industry this summer.

With regard to the specified person measure included in the foreign influence registration scheme, it is important to clarify its necessity. It will offer us three key benefits. First, it will provide the Government with a greater understanding of the scale and extent of activity being carried out on behalf of specified foreign powers and entities. Secondly, it will increase the risk to those who seek to engage in covert activities for specified foreign powers, either directly or through entities. By requiring the registration of relevant arrangements and activities, the risk of engaging in state-threats activity against the UK is increased. Finally, the specified person measures provide a potential option for earlier disruption when there is evidence of a covert arrangement between an individual and a specified foreign power or entity but not disclosable evidence of a more serious state- threats offence. Crucially, this provides an opportunity to prevent harmful activities at the earliest possible stage.

On Clause 3, the noble Lord, Lord Marks of Henley-on-Thames, gave the example of an individual working with Mossad in the UK to recover artefacts looted by the Nazis. In his example, we would expect that the UK would have been made aware of such activity and it is possible that the UK would have made an arrangement with Israel. As such, the activity would have a defence in Clause 3(7)(c)(i).

A number of noble Lords raised the Official Secrets Act 1989, including the noble Lord, Lord West, and the noble Baroness, Lady Ludford. As the House knows, the Government are not planning to reform this Act. It is worth noting that the Law Commission, in evidence to the Bill Committee, clearly explained that it did not envisage that any one statute would implement all its recommendations at once, even if the Government were minded to accept them all. It also did not recommend that a public interest defence be created in relation to the espionage offences in the Bill. We continue to consider the Law Commission’s recommendations on the Official Secrets Act 1989.

On the specific issue of a public interest defence, or PID, to overcome a PID, the Government would need not only to show that the disclosure was damaging but that any harm from a disclosure outweighs the public interest in the disclosure. This would likely mean that in a prosecution, even one where a person clearly had malicious intent, the damage of the original disclosure could be severely compounded. This could lead to even egregious breaches of the Act not being prosecuted due to the sensitive nature of the evidence that the Government would have to reveal to defeat the PID. The Government recognise that there may be situations where an individual has a legitimate need to raise a concern—for example, in situations where there may have been wrongdoing and where they think there is a public interest in disclosing that information—but disclosing information protected by the Official Secrets Act 1989 and then relying on a PID is not the safest or most appropriate way for an individual to raise these concerns and have them rectified. Nor would this address the underlying wrongdoing.

The offences in the National Security Bill target harmful activity by states, not leaks or whistleblowing activity. There are safeguards that prevent the Bill capturing whistleblowers and negate the need or utility of PID. For example, to commit an offence of disclosing protected information, the conduct must be done for or on behalf of, or with the intention to benefit, a foreign power and with a purpose prejudicial to the safety or interests of the UK. A genuine whistleblower would not meet this bar. Including a PID in any of the offences in Part 1 strongly implies that acts of espionage could be in the public interest. Clearly, acts of espionage against the UK can never be in the public interest.

There are also already several existing internal and external routes in government through which individuals, including government subcontractors or contractors, can raise a concern about information relevant to the Official Secrets Act 1989 safely. The number of routes has increased since 1989. The Government consider that these routes provide safe and effective options for disclosure, although the appropriate route would of course depend on the disclosure in question. These routes include, among others, government departments’ internal policies and processes; a staff counsellor for the national security community; organisational ethics counsellors; the chair of the Intelligence and Security Committee; the Investigatory Powers Commissioner’s Office; the Attorney-General’s Office; the Director of Public Prosecutions; and the Commissioner of the Metropolitan Police in instances where an individual suspect’s criminal activity is taking place or has taken place. To sum up, the introduction of a PID would carry significant risks to our national security and do nothing to create a safe or effective route to raise a concern, compared to the many legitimate routes the Government are actively maintaining and improving.

Turning to the report published by the Joint Committee on Human Rights, raised by the noble Baroness, Lady Ludford, the Government are clear that the offences and powers introduced by the Bill are proportionate and necessary. Through the use of appropriate safeguards and conditions, and reflecting on the need to protect national security and public safety, the offences have been crafted to catch only legitimate activity, ensuring that they remain proportionate. The Government disagree with the overall position of the committee and maintain that the measures in the Bill are appropriately drawn. Our ECHR memorandum, updated on the introduction of the Bill into this House, outlines the government assessment of how our measures comply with human rights law. I look forward to engaging with the committee as the Bill progresses through this House and the Government will respond to the JCHR report in due course. I am sure the noble Baroness would not expect me to speculate on the Bill of Rights Bill and its future.

The noble Baroness, Lady Jones of Moulsecoomb, asked when the Government will publish the Russia report. I am pleased to be able to tell her that the Government did in July 2020. In fact, I can tell the noble Baroness that our response was published on the very same day; the Bill is a direct response to the recommendations in that report.

In conclusion, I will repeat my earlier thanks to all who have participated today. I look forward to further examination and challenge as we move to Committee, but for now I beg to move.

Bill read a second time.

National Security Bill

Lord Sharpe of Epsom Excerpts

Tuesday 6th December 2022 Lords Chamber

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 14, Schedule 1, Clauses 15 to 21, Schedule 2, Clause 22, Schedule 3, Clause 23, Schedule 4, Clause 24, Schedule 5, Clause 25, Schedule 6, Clauses 26 to 37, Schedule 7, Clauses 38 to 41, Schedule 8, Clauses 42 to 49

Schedule 9, Clauses 50 to 52, Schedule 10, Clauses 53 to 56, Schedule 11, Clause 57, Schedule 12, Clauses 58 to 63, Schedule 13, Clauses 64 to 71, Schedule 14, Clause 72 to 86, Schedule 15, Clauses 87 to 90, Schedule 16, Clauses 91 to 98, Title.

Motion agreed.

Violence against Women and Domestic Violence

Lord Sharpe of Epsom Excerpts

Thursday 1st December 2022 Lords Chamber

[Baroness Gale]

To ask His Majesty’s Government what plans they have to remove the reservation on Article 59 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, now that they have ratified the convention.

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

My Lords, the Government are committed to tackling violence against women and girls. We were therefore delighted to ratify the Istanbul convention in July and it came into force in the UK on 1 November. We are carefully considering the findings of the Support for Migrant Victims scheme pilot evaluation to ensure that migrant victims are supported effectively. We remain committed to making a timely decision on whether it is appropriate to maintain our reservation on Article 59 of the convention.

[Baroness Gale (Lab)]

I have to say that I expected that Answer from the Minister but I thank him anyway. Is he aware that Southall Black Sisters, which was running the pilot scheme, has said that the scheme has a different focus on Article 59 and therefore should not be used to justify the reservation? Will he agree to meet representatives from SBS so that they can explain why they do not believe there is a need to wait for the pilot scheme report before the Government remove the reservation on Article 59?

As we are half way through the 16 days of action by White Ribbon, which campaigns against violence against women and girls, does the Minister also agree that this would be a wonderful opportunity for the Government to show their support for migrant women who suffer from domestic abuse while the perpetrators hold over them the threat that, if they leave, they will lose their status in this country? Will the Minister commit to that today?

[Lord Sharpe of Epsom (Con)]

My Lords, as I said, the Government are considering the report received from the organisations, including Southall Black Sisters, that operated the pilot scheme, and will respond in due course. I think that is as far as I can go at the moment.

[Baroness Burt of Solihull (LD)]

In a statement to the Guardian in May, when asked why the Government had excluded Article 59 from ratification, a government spokesperson said that

“we are evaluating our approach to supporting migrant victims of domestic abuse and will make a final decision … once that is concluded.”

Have the Government also evaluated how many victims are enduring abuse at home, fearful of seeking help because the threat of deportation is being held over them by their abuser? Is their suffering being factored into the Government’s evaluation?

[Lord Sharpe of Epsom (Con)]

I should make it clear that the Government regard the victims first and foremost as victims, so of course those considerations are being taken. We are far from alone in making reservations; 25 other countries have also done so on ratification or indicated their intention to do so when signing. As I have said, we will be considering that decision in the light of the migrant victims scheme pilot evaluation, which is being looked at.

[Baroness Sugg (Con)]

My Lords, I am pleased to hear that the Government are reconsidering the reservation. Is the Minister able to give any more clarity on a timeline for that reconsideration?

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for that. We have also carefully considered the recommendations in the Domestic Abuse Commissioner’s Safety Before Status report, and the follow-up report is due to be published before the end of this year. Under the terms of the Domestic Abuse Act, we have 56 days to respond to that, so the extension of the MVS pilot covers that 56 days and we will be responding within that timeframe.

[The Lord Bishop of Gloucester]

My Lords, do the Government plan to include the Domestic Abuse Commissioner’s definition of immigration abuse in policy and guidance on domestic abuse?

[Lord Sharpe of Epsom (Con)]

My Lords, the Government have already taken forward a number of the recommendations made in part 1 of the Domestic Abuse Commissioner’s Safety Before Status report. As I say, the follow-up report is due to be published soon. We have partially accepted 11 recommendations. I am happy to say that all those things will be considered in due course.

[Baroness Thornton (Lab)]

My Lords, I think the Minister will now realise that across the House there is concern because—it is important for him to acknowledge this—being safe and protected from inhuman and degrading treatment is a human right. How are the Government compliant with that obligation if the reservation on Article 59 is in place, denying access to domestic abuse support to thousands of women victims merely because of their immigration status?

[Lord Sharpe of Epsom (Con)]

I have obviously heard the tone of the House but, as I have tried to make clear, the Government are carefully considering this and will look into being able, as we hope, to withdraw the reservation in due course. It is fair and right, however, that we evaluate the reports received so far and the ones that we will be receiving shortly.

[Baroness Jenkin of Kennington (Con)]

My Lords, the Government also entered into a reservation in respect of forced abortion and sterilisation. Can my noble friend the Minister explain why?

[Lord Sharpe of Epsom (Con)]

Yes, that is under Article 44. We did not consider that there was a strong case to make an exception for forced abortion or forced sterilisation. Those offences are covered by general offences of physical violence, for example ABH and GBH. We do not apply dual criminality to those offences when they are committed in normal physical violence contexts, as we know of no jurisdiction which does not have general offences of violence equivalent to ours. There is therefore no reason to take a different approach when it comes to forced abortion and forced sterilisation.

[Lord Bird (CB)]

Will the Minister reassure us that the Government are going to do something about those people caught by this lack of justice while they are making up their mind? Will they be able to look back at all those people who will, while they are making up their mind, be destroyed by the gross misuse of them as human beings?

[Lord Sharpe of Epsom (Con)]

My Lords, I referred earlier to the pilot scheme being extended for a year, so I would hope that nobody will fall into the category described by the noble Lord.

[Baroness Bryan of Partick (Lab)]

Can the Minister understand why some women in this position who are concerned about their immigration status are reluctant to involve the police force, not just because of that status but because of their colour and gender?

[Lord Sharpe of Epsom (Con)]

Yes, the Government absolutely understand that. I reiterate the point that they are regarded as victims first and foremost. Essentially, the question is: why is there a firewall between police and immigration enforcement? Having considered the evidence from experts in the sector and police representatives, we did not consider that establishing a complete or time-limited data-sharing firewall between the police and the Home Office would meet the joint aims of encouraging victims of crime with insecure status to report crime while maintaining an effective immigration control.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the Minister said that he was delighted that the Government had ratified this convention. I share his delight, notwithstanding the reservation, but can he tell the House why it took so long?

[Lord Sharpe of Epsom (Con)]

I can tell the House that if we had not introduced the reservation, it would have taken even longer. As to why it took so long, no, I do not know the answer.

[Baroness Chakrabarti (Lab)]

My Lords, I appreciate that the Minister has said that the Government are considering removing the reservation, but can he explain a little about what the problem is? He will know, of course, that Article 59 does not give blanket residence to any class of women. It just says that a competent authority should consider their circumstances and, where necessary, give this vital protection to them.

[Lord Sharpe of Epsom (Con)]

Again, as I think I have explained, the Government are assessing the evidence that is coming back from the migrant victims scheme pilot programme.

[Lord Green of Deddington (CB)]

My Lords, can the Minister elaborate on the immigration aspects of this problem?

[Lord Sharpe of Epsom (Con)]

I am not entirely sure how to answer that question. With regard to the firewall, I have just given a very complete answer. I hope that goes some way to answering the noble Lord’s question.

[Lord Foulkes of Cumnock (Lab Co-op)]

As the Minister was not able to answer my question, could he write to me with an answer?

[Lord Sharpe of Epsom (Con)]

I will endeavour to do so, yes.

Metropolitan Police: Crime and Misconduct

Lord Sharpe of Epsom Excerpts

Thursday 1st December 2022 Lords Chamber

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

My Lords, I thank all noble Lords for their contributions and I congratulate my noble friend Lord Lexden on securing this important debate.

Public confidence is, as all speakers have noted, a precious commodity for policing. When it is lost or damaged, the impact is significant and profound. Every time a high-profile incident occurs or a scathing report is published, that trust is placed in jeopardy. The truth is that recently this has happened all too often. I agree with my noble friend Lord Lexden that I could and perhaps should have used a much stronger word than “worrying” in my letter to him. However, I also take this opportunity to join the noble Lords, Lord Blair and Lord Bassam, in praising the “heroic, determined” majority—to use Sir Mark’s words, which were echoed by my noble friend Lord Lexden.

Things have to improve. Standards have to be raised and cultures reset. The Home Secretary has been clear that it is vital that the police act to restore trust, return to common-sense “back to basics” policing and treat the public and victims with the respect that they deserve. As the largest police force in England and Wales, with responsibilities extending beyond the vast task of policing and protecting the capital, the Metropolitan Police Service has a central role to play. The Government are committed to working with the Met Commissioner, Sir Mark Rowley, and the whole of his organisation. Their task is clear: to get the basics right, drive down and tackle crime, and rebuild public trust.

Many noble Lords have referred to the interim report of the noble Baroness, Lady Casey. Under the commissioner’s leadership, as I have just said, the Met must get back to basics—and get those basics right—and provide the first-class service expected of it. The report of the noble Baroness, Lady Casey, as the noble Lord, Lord Bassam, pointed out, contained many disturbing things, including: allegations of discrimination or sexual misconduct; issues of racial disparity, as referenced by the noble Baroness, Lady Lawrence; and a lack of confidence internally that such allegations will be taken seriously.

The commissioner has already set out a plan for his first 100 days to, in his words,

“renew policing by consent … to bring more trust, less crime and high standards”

and, obviously, to deal with some of the findings of the Casey report. As part of that process, and going beyond those 100 days, Sir Mark Rowley attends the police performance oversight group, run by HMICFRS. The group brings together system leaders from across policing to offer constructive challenge and practical support to chief constables of engaged forces. I will go into this in some detail, with noble Lords’ indulgence. This body is chaired by the Chief Inspector of Constabulary, Andy Cooke, who has a clear remit to ensure that forces have realistic and clear improvement plans in place to address the serious concerns about performance that HMICFRS inspections have identified.

Members of this group include His Majesty’s inspectors, the National Police Chiefs’ Council, the Association of Police and Crime Commissioners performance leads, the College of Policing, the Home Office, represented by the policing policy director, the chief constables themselves, of course, and the PCCs or mayors. It is worth restating, as referenced by the noble Lord, Lord Browne, that the primary accountability body for the Metropolitan Police Service remains the Mayor of London and the London Assembly.

Sir Mark attended his first iteration of this group on 13 October and it met again today in order to review some of the performance measures he has outlined. The members scrutinise the improvement plans and provide expert and constructive challenge—one hopes—where needed and regularly review the progress that is made. The mayor and deputy mayor are also invited, as I said, and attend to ensure that they understand the issues and underlying causes of the failures that have been identified and can therefore more effectively monitor, scrutinise and support their chiefs.

The Home Office attends to provide Ministers with the assurance that sufficient and urgent improvement action is under way. Where appropriate, the department considers what additional support it may be able to offer to accelerate progress towards that improvement. Ultimately, officials consider whether the Home Secretary may need advice on using her backstop powers, but I reassure the noble Lord, Lord Bassam, that the Home Secretary does, of course, meet the police commissioner on a regular basis.

In addition to the police performance oversight group, Sir Mark has also established governance to ensure that the Metropolitan Police Service is challenged and supported on its plans for improvement. These arrangements include the Deputy Mayor and the relevant director-general for public safety from the Home Office—I believe that is called a “turnaround board”.

As for other things the Home Office has done, we have set out clear priorities for all policing through the national crime and policing measures outlined in the Beating Crime Plan, which was published in July 2021. The plan sets out the Government’s strategic approach to cutting crime and restoring confidence in the criminal justice system more generally, but also includes a focus on reducing homicide, serious violence and neighbourhood crime. To allow effective performance management, the Home Office has developed the digital crime and performance pack, which provides published and unpublished data on the Met’s performance relative to other forces and nationally. This has been made available to all chiefs and PCCs.

Most noble Lords raised the subject of police vetting. Following the tragic events surrounding the death of Sarah Everard, the previous Home Secretary commissioned an inspection into police vetting, countercorruption capabilities, misogyny and predatory behaviour. That report, which was published on 2 November, highlighted that policing must do more to safeguard the integrity of the police workforce. Previous inspections also highlighted risks that can arise with poor vetting practice. The NPCC has committed to addressing the recommendations in the report in full. Three recommendations have also been made to the Home Office, and we will be addressing those. Following the HMICFRS report on vetting, misconduct and misogyny, it plans to dip-sample force decision-making on vetting as part of its regular inspections, so that there is ongoing scrutiny of decisions, including forces’ risk appetite.

I was asked whether our unprecedented drive to recruit has perhaps been driving perverse behaviours or causing forces to cut corners. The honest answer is no. Meeting the commitment to recruit the additional 20,000 has not been and will never be at the expense of public safety. The various process improvements and substantial funding provided by the programme means that policing has the tools and ability to recruit in greater volumes while maintaining standards. I go back to the point I just made: the HMICFRS is introducing regular dip-sampling to make sure that that remains the case.

On police misconduct and the discipline system, which of course includes dismissal reviews, the Government announced a review in response to the interim report of the noble Baroness, Lady Casey, into the process of police officer dismissals, with the aim of ensuring that the system is fair and effective at removing those who are not fit to serve their communities. The Home Office is responsible for the regulatory framework. This follows significant reforms to the disciplinary system in recent years, including the introduction of independent, legally qualified chairs; public misconduct hearings; the ability to bring misconduct proceedings for former police officers; and the introduction of the police barred list. The Home Office is going to work closely with police partners, including the Metropolitan Police, as part of the review, and the terms of reference will be published in the very near future.

The Government are aware of the commissioner’s concerns around the number of officers not fully deployable but, ultimately, decisions on whether to suspend an officer or place them on restricted duties are a matter for chief constables. I have some data on this for the House. It probably does not entirely accord with Sir Mark’s comments in the newspaper report the other day—it was a snapshot taken at the end of March—but I think it is useful for context.

As of March 2022, the police workforce statistics showed that the Met has 780 officers on recuperative duties—about 2.3% of the workforce, compared with 4.5% nationally. Some 2,718 officers were on restricted or adjusted duties. “Adjusted duties” is worth defining. It is where an officer fails to recover from recuperative duties or another medical issue is identified, but where it is agreed that the officer, with reasonable adjustments, is able to discharge a substantive police role without unreasonable detriment to the overall force effectiveness or resilience, as judged by the chief officer. I am sorry that that is a bit of a mouthful, but it is worth defining. Unfortunately, we do not split the 2,718 into the various categories.

[Lord Bassam of Brighton (Lab)]

That is 10% of the Met’s active force. Are any other forces in the UK operating with that degree of handicap?

[Lord Sharpe of Epsom (Con)]

The average is 4.7%, and it is actually 8% of the Met’s workforce—but I agree that it is a heavier number than we would see nationally. As was referenced earlier, seven officers are currently suspended—0.02% of the workforce, compared with 0.15% nationally. I accept that those numbers are not particularly reassuring: obviously, much needs to be done to fix this problem.

As I said earlier, decisions on whether to suspend an officer or place them on restricted duties are a matter for chief constables. It is also at chief constables’ discretion to place officers on adjusted duties, as the guidance sets out fairly clearly. Where officers’ performance is unsatisfactory or they commit an act of gross incompetence, there are existing mechanisms to be able to dismiss them from the force. The Home Office will continue to work with forces to ensure that there is an effective regulatory framework in place. Whether we end up with legislative change or not, as suggested by the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Blair, I really cannot predict.

My noble friend Lord Lexden referred to Operation Midland, which we have discussed many times in this House. As ever, his points were well made. On the remarks made by the former Home Secretary that he referred to, in which she stated that profound concerns existed about the handling of this operation, the Independent Office for Police Conduct responded to criticism of its handling in a letter sent to Sir Richard Henriques on 31 March 2021. That is available on the government website. The IOPC publishes further information on its performance and plans on its website. As announced by the former Home Secretary on 15 June 2021, an independent review of the IOPC—another review, I am afraid—is due to start this year. This will consider the organisation’s effectiveness and efficiency, including its decision-making processes.

I regret that I am running out of time. In closing, I repeat my earlier thanks to my noble friend Lord Lexden for securing this debate. I am grateful too to all other noble Lords who have contributed today. These are issues of the utmost importance, not only in relation to the way our capital city is policed but for British policing as a whole. The Metropolitan Police has a unique status within our policing system. Under the commissioner’s leadership, the force must step up to the task of driving down crime, upholding high standards and securing public trust. I commend the work that Sir Mark Rowley has done so far and look forward to seeing the rest of it concluded successfully. That is what the Government expect, and we will continue challenging the Met and the whole of policing to achieve it.

Independent Cultural Review of London Fire Brigade

Lord Sharpe of Epsom Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, female firefighters groped and beaten, a black firefighter having a noose put on his locker, and a Muslim firefighter having sausage and bacon sandwiches stuffed in his pocket—these are all awful examples, among many more, from the appalling report on the culture of the London Fire Brigade published yesterday. The report says that such abuse was shockingly often dismissed as being just banter. Do the Government agree that this has to be a watershed moment? How are the Government going to work with the London Fire Brigade commissioner, Andy Roe, to deliver the much-needed cultural change quickly? What evidence is there that this is a much wider problem than just London, and what are the Government going to do about that? Being shocked is one thing, but what is needed is action.

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

I agree with the noble Lord; the report written by Nazir Afzal makes for deeply troubling reading indeed. The London fire commissioner, Andy Roe, commissioned this review due to his significant concerns about the culture in his own service. The review also followed the tragic suicide of Jaden Matthew Francois-Esprit, a trainee firefighter; my thoughts and sympathies are obviously with his family. I know that all noble Lords will share our sadness and shock at the testimony of those who shared their experiences for this review, to whom I pay tribute for their courage. I assure the House that the Government have taken and continue to drive action in this area. The London fire commissioner has accepted all 23 recommendations in the report, also stating that he will be fully accountable for improving culture. We will take a very close interest in how he intends to implement this.

[Baroness Pinnock (LD)]

My Lords, this is indeed a deeply troubling report. A life-saving emergency public service is being laid low by corrosively damaging behaviour by a minority of firefighters, despite the obvious dedication of the majority. As the Minister has said, there are 23 recommendations in the Nazir Afzal report. I have a couple of questions. First, will the Minister commit to providing a review of these recommendations within 12 months so that progress can be made and be seen to be made? Secondly, the report exposed the failure of the model of governance. Good governance would have exposed the failings and demanded action well before this horrific bullying, harassment, misogyny, homophobia and racial discrimination was brought to light. What action will the Government take—maybe the Minister can tell us—to remedy this absolute system failure of governance?

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for her questions. I think it is useful to remind the House that the report confirmed that the disadvantage and discrimination that affects brigade staff does not translate into its operations and does not impact on the way the brigade prevents and responds to incidents. It is important to note that and to note our admiration for firefighters, who walk into trouble as opposed to walking away from it.

As for the Government’s response, we should bear in mind that responsibility for London Fire Brigade rests with the Mayor of London, but the Government published a fire reform White Paper in May. That set out proposals to reform the way the fire service supports and values its people. At its heart are plans to improve culture and professionalism and to put ethics at the heart of the service. The Government have also funded a number of important change programmes in the fire sector. We have supported the creation of a new code of ethics for fire and rescue services, setting out clear national expectations for standards of behaviour. The Fire Standards Board, which is funded by the Home Office, has produced fire standards to support the core code of ethics as well as a specific safeguarding standard, supported by guidance from the National Fire Chiefs Council. It will shortly be publishing new fire standards on leadership.

[Lord Udny-Lister (Con)]

My Lords, could the Minister please advise, first, that responsibility for the London Fire Brigade rests with the Mayor of London, who has a deputy mayor responsible specifically for the London Fire Brigade? So my first point is on governance—what is being done on that? Secondly, what will then be done about removing the individuals who have been clearly identified in this process? We only recently had the report of the Commissioner of the Metropolitan Police on how we could not get rid of large numbers of policemen who need to leave the service quickly. Thirdly, national training has always been an issue for the fire brigade. The central Fire Service College in Moreton-in-Marsh was closed many years ago. It still has not been replaced and there are all sorts of training and governance issues around the fire brigade.

[Lord Sharpe of Epsom (Con)]

That is very clear; there is fairly evidently a failure of leadership. However, as I mentioned, I commend the leadership of Andy Roe, who commissioned a report into his own brigade. That was courageous and, as I say, he has committed to acting on all the recommendations.

There were two recommendations on getting rid of people. One is for a historical review of complaints, which will obviously investigate potential historical injustices. I imagine that will have some sort of component to do with removing people.

I am happy to confirm that the Mayor of London has operational responsibility for this, along with his deputy. That is on the website, and he claims it for himself. This is not blaming; it is merely stating a fact.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for his answer. He knows that I am always happy to examine issues of governance and new legislation where that is required, be it for the fire brigade or the police, which we will discuss in the debate of the noble Lord, Lord Lexden, on Thursday. But what is happening in our country? What is happening to the culture of kindness, decency and mutual respect among our fellow citizens and, it seems, I am sorry to say, particularly some men in our country? We now have these allegations—more than allegations; we have case after case in the Metropolitan Police, these new revelations about our much-needed and respected fire service and allegations of bullying in the Palace of Westminster, even at senior Cabinet level. The Deputy Prime Minister is now being investigated for bullying. Will we hear from the Minister for Equalities or from the Prime Minister—the first non-white Prime Minister—who has small daughters for whom he no doubt cares and is concerned? Will we hear some leadership on the culture of dignity and decency in our country?

[Lord Sharpe of Epsom (Con)]

I cannot speculate about what the Prime Minister might say so I shall speak for myself. I agree with the noble Baroness: I am disturbed by many of these reports that I have to stand here and talk about.

[Lord Paddick (LD)]

My Lords, rather than concentrating on who is to blame, should the Government not be focused on solutions? What have they done to look at parallels between this report and that of the noble Baroness, Lady Casey of Blackstock, into the Metropolitan Police? What are the common lessons and what, therefore, are the urgent steps that need to be taken in both the police service and the fire brigade?

[Lord Sharpe of Epsom (Con)]

I think I made it abundantly clear that I was blaming no one; I was stating a fact. I also made it very clear that we published a fire reform White Paper in May and that Andy Roe has committed to acting on all 23 recommendations.

[Baroness Warsi (Con)]

My Lords, if the Minister is open to suggestions for solutions, may I ask him to take one away? Many years ago, the Government committed to finding a definition of Islamophobia. There is an agreed definition which has been adopted by all political parties in Parliament, including the Conservative Party in Scotland. The Government, however, have not adopted that definition. There was a report recently of a private meeting at which it was suggested that the Government had dropped their work on the definition of Islamophobia, but a No. 10 spokesman subsequently confirmed that that is not correct. Can my noble friend please investigate whether this work is continuing, and, if so, can he say when we can find an agreed definition and when that is likely to be published?

[Lord Sharpe of Epsom (Con)]

The simple answer to my noble friend is that I am afraid I do not know but I will endeavour to find out.

[Baroness Falkner of Margravine (CB)]

My Lords, I start briefly by saying to the Whips that when we have an Urgent Question, we cannot entertain speeches, because several of us would like to contribute—I say that very respectfully. I declare that I am chair of the Equality and Human Rights Commission, and I just have a simple point that I would like the Minister to emphasise. The noble Baroness, Lady Chakrabarti, rightly spoke of a spread of incidents across different public sector organisations where things have gone appallingly wrong. Will the noble Lord consider that all the organisations that have been mentioned today are covered by the public sector equality duty, which they are required in law to have due regard to? What is his assessment of why they have disregarded that duty?

[Lord Sharpe of Epsom (Con)]

I am not sure that it is the organisations that have disregarded the duty, but clearly, individuals within them have. Obviously, that is part of a larger discussion, and I will take that suggestion back.

Investigatory Powers Commissioner (Oversight Functions) Regulations 2022

Lord Sharpe of Epsom Excerpts

Monday 28th November 2022 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations and Order laid before the House on 18 and 19 October be approved.

Relevant document: 16th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 24 November.

Motions agreed.

Technology Rules: The Advent of New Technologies in the Justice System (Justice and Home Affairs Committee Report)

Lord Sharpe of Epsom Excerpts

Monday 28th November 2022 Grand Committee

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

My Lords, I thank all noble Lords who have spoken in the debate today and particularly the noble Baroness, Lady Hamwee, for securing the debate. I also thank those who contributed to the Justice and Home Affairs Committee’s thoughtful and insightful report, which has paved the way for today’s discussion.

As the noble Baroness has made clear, the Government responded to that report in June, but it is nevertheless welcome that we have found time to discuss these important matters more fully. I hope this is not the last time we cover the topic; I suspect it will not be. I will remark briefly on the broad thrust of the committee’s report and the Government’s position, as well as on points made during this debate, while also—I am afraid—having to join the noble and learned Lord, Lord Hope, by admitting that I am not much good with my thumbs either.

I am not sure that this line is going to qualify as “riding to the rescue”, but there is significant agreement between the Government and the committee on the challenges posed by advanced technology and how it is rolled out into the justice system. I am sorry if noble Lords feel that the government response was in some way a brush-off, but I am sure all your Lordships would agree that the technology is very complicated. The policing and justice sector and the ethics around balancing competing human rights are also very complicated. The public expect us to have a world-class justice system, and I think all noble Lords acknowledged this. Utilising technology is a cornerstone of this. The police must use technologies to free up officer time to fight crime, by making administration more efficient, and as a tool to hold those responsible for crime to account.

The Government are committed to empowering the police to use the latest technologies because the public support their use. However, there are no easy answers and the risk of acting without fully understanding the implications of these technologies and getting it wrong is very real. We are not presently persuaded by the overall recommendations put forward in the report, but the Government are committed to the spirit of improving consistency, maintaining public trust, ensuring sufficient oversight and empowering the police which sit behind those recommendations.

The subject of transparency was raised by my noble friend Lord Hunt and others. In their evidence, the Government were clear that transparency is not optional. The police themselves see and understand that being transparent is in their interests. We do not agree that we should mandate specific rules on transparency across such a wide range of current and potential future technologies and uses, but that does not mean we take it any less seriously.

Transparency is an important part of data protection laws. Our policing model works only if there is public consent. For the public to consent, as the noble Lord, Lord Ponsonby, has just pointed out, they must be engaged. It is in the police’s interest to hold conversations and be open about what they are doing and why. Several police forces are working with the Centre for Data Ethics and Innovation to explore how the algorithm transparency standard may work for them. We welcome it as one tool that could promote the sharing of best practice, but transparency can come in many forms. Our position is that mandating a set of rules could restrict what information is ultimately provided to the public and risks turning transparency into a tick-box exercise.

Instead, we will continue to help the police to collaborate with experts and identify how they can be transparent in a way that allows scrutiny, both at a technical level by those with expert knowledge and at an ethical level by the wider public. There is no point being transparent if what is said cannot be understood. We are in agreement that the question of ethics is of fundamental importance, and the ethics of acting or using technology is not something to be considered lightly.

We have heard how important the roles of accountability and oversight are at each stage of the system. I would caution that a statutory ethics panel, as proposed in the report, may decrease democratic oversight because such powers could override local decision-making, local accountability and locally elected officials, but I note the particular reference to the West Midlands Police example. We are not persuaded that the creation of a national statutory ethics committee is the best way to bring expert insight into police practice, but we will continue to work with colleagues in policing to develop and support non-statutory models.

Our democratic system, and ultimately Parliament, is here to provide scrutiny and oversight. The committee’s report is proof of that, as is today’s debate. It is right that our institutions are held to account, especially in relation to the complex and important issues we have discussed today. The committee’s report noted that, below this, there are a range of oversight bodies tasked with providing oversight on various aspects of how the police use technology. We recognise the risk of overlap and confusion, which is why we have proposed in the Data Protection and Digital Information Bill to simplify the arrangements for biometric and surveillance cameras, because, ultimately, it is individuals, not technology, who take the key decisions within the justice system. Technology may be used to generate insights, but the decision to arrest will always remain with the officer, while the courts will decide what material can be given in evidence in determining guilt and any sentence. The Government will continue to support work to equip and educate the individuals working within the justice system so that they understand the technologies they use and how to use them correctly.

My noble friend Lord Hunt and others raised governance and accountability. On accountability, I think the question was who is responsible when things go wrong—who has the day-to-day responsibility for governance? There are existing regulations covering the responsibilities of parties when undertaking a procurement and when working together to provide a service. Depending on the issue, it may be addressed in different ways: illegal activity may be a criminal offence; other unlawful activities, such as a data protection breach, would be an issue for regulators; and poor performance should be mitigated against at the contractual level.

The public expect the police to innovate. They have to be allowed to do so within the law, so decisions on what technologies to use are highly operational ones for the police, independent of government. However, the police need to act within the legal framework set out by Parliament, and bans are in place where they are proportionate to the risk, such as in cases where the technology poses a risk of lethal or less than lethal force. This is not the same level of risk as that associated with the types of technologies raised in the report.

Chief constables ultimately decide when and how to use new technologies. However, they and their PCC are advised, regulated and overseen by a range of technical and regulatory bodies. The police chief scientific adviser, who I will come back to, advises chief constables on important matters such as good education. The ICO can and will take action where there is a lack of compliance with data protection laws. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a duty to consider how forces are meeting the Peelian principles, of which the use of technology is of course a part. HMICFRS undertakes thematic reviews based on its local inspections, and the use of technology is an area which could merit specific analysis.

The noble Baroness, Lady Primarolo, asked about individual complaints challenging the use of technology. Challenging the use of technology in the courts is certainly a resource-intensive process, and it is best reserved as a solution when the circumstances are exceptional. However, individuals can report concerns through other avenues, and we encourage them to do so. Where there are concerns over necessity, proportionality or a policing justification, they could be raised with HMICFRS, which has a mandate to consider how professional standards are applied in its reports and investigations. If the matter relates to how individuals within policing are using technology and their behaviour, this may be something to take forward with the independent police complaints authority. Concerns related to fairness, equality or rights can be raised with the Equality and Human Rights Commission, while the Information Commissioner’s Office is well placed to investigate questions of data protection and privacy.

Noble Lords have acknowledged that the police are operationally independent, which is an essential principle of our system. Nevertheless, we are also alive to the need to ensure that law enforcement is given appropriate support in adapting to technological change and advancements. The role of the police chief scientific adviser, to which I have referred, was created to give policing a scientific capability, establishing a dedicated place for advice on how to innovate, test technologies and ensure that tools do what they claim. Since being appointed, the chief scientific adviser has led reform of how the sector works with the scientific community and is developing a strategy for science and technology. The NPCC’s science and technology strategy will strengthen how the police approach using validated and cutting-edge science in their mission to protect the public. The Government support this strategy and encourage its successful adoption. Those using the technology and impacted by it must be confident that it works as it should.

The Home Office is investing in policing to strengthen the technical evidence available on the most promising future technologies, as well as helping in the commission of research by the Defence Science and Technology Laboratory, which tests functional performance. Confidence in the scientific basis and validity of the technology being used is only part of the picture: there must also be confidence in the operational practice.

The wider question of technology in the justice system is clearly an area in which it is important constantly to develop best practice and future guidance. We agree that clear and consistent advice is essential to allow innovation. To this end, the sector is developing its repository of guidance and information. For example, the College of Policing published national guidance on live facial recognition earlier this year. The Government will support the sector to stay on the front foot in addressing specific technologies, as needed.

An approach centred on the “Move fast and break things” mantra may work for innovation in the Silicon Valley, but it would not be appropriate in the context of UK law enforcement. So we have no wish to break the system establishing the rule of law, which of course dates back a very long time. That is not to say that the Government intend to sit back and be solely reactive, but proactively regulating brings its own risks. Mandating standards without consensus in the sector on what it needs may turn certification into something that is easily gamed by bad actors, opening up public authorities to harm.

So, although I happily acknowledge that there will be an opportunity for someone to set global standards, at the moment the Government are of the opinion that certification, or kitemarking, can create false confidence in the validity of a technology. We want to ensure that responsibility for using lawful technologies is not delegated to a certification process that may be gamed. Within our existing regulatory model, the police have a responsibility to use products that are safe and meet the high ethical tests set out in the data protection, human rights and equalities legal framework.

Assessing proportionality and necessity, even if the technology works, depends on the unique factors of each use case. Organisations should not hide behind regulations or certification when it comes to deploying new technologies responsibly. The police must make justifiable decisions during procurement, development and deployment, reviewing them regularly. The current legal framework places responsibility for how to do that firmly on the organisation. However, in addition to the Centre for Data Ethics and Innovation, the Government have established an AI standards hub to help to promote good practice. But the responsibility and accountability that organisations face are theirs alone.

Although we did not generally share the committee’s overall approach of more and more legislation, we will act when the need is clear. We are confident that the regulatory model is proportionate and mature. We have established a statutory code for digital forensics and placed the forensic services regulator on a statutory footing. As practice consolidates around specific standards, we will continue to learn from the relevant experiences and engage with wider learning from sectors such as healthcare.

Someone, but I am afraid I have forgotten who, asked: does it actually work? The answer is yes. I have a large number of examples but in the time available I will provide one: all forces use facial recognition retrospectively. South Wales Police produces around 100 identifications a month, which, as a noble Lord—I forget who—noted, reduces certification time from 14 days to a matter of hours. South Wales Police and the Met have also used live facial recognition technology and successfully disrupted things like mobile phone theft gangs, with no reported thefts at rock concerts, for example, and there were 70 arrests overall during various trials, including for offences as severe as rape, robbery and other forms of violence.

The noble Lord, Lord Clement-Jones, raised the Bridges case. That was a compliance failure by South Wales Police. The court confirmed that there was a legal basis in common law and a legal framework including human rights, data protection and equalities law, in which live facial recognition and, by extension, other technologies could be usefully carried out. Since the judgment, the College of Policing has published an authorised professional practice clarifying the “who” and “where” questions.

On the question of potential bias, noble Lords will be interested to know that the US National Institute of Standards and Technology, which is generally recognised as the world’s premier outfit of this type, found that the algorithm that South Wales Police and the Met use shows almost indetectable bias.

The Committee may have noticed that I am slightly between focus ranges with or without glasses, which is making life rather complicated. I wish I were relying on technology at this point.

I was asked about live facial recognition as an example. I have just mentioned that the College of Policing authorised professional practice guidance on live facial recognition. That requires chief officers to ensure training within the force on the following: how to respond to an alert; the technical capabilities of live facial recognition; the potential effects on those subject to the processing; the core principles of human rights; and the potential impact and level of intrusion on each subject.

The adoption of live facial recognition standards serves as an example of where practice has moved quickly over the last few years following legal scrutiny and greater public discourse. The sector learned from the early pilots to test, improve and evolve policies following feedback. The pilots of this tool were just that—early tests. Now that more evidence is available and the maturity of the capability is advanced, we can analyse how the legal framework is working. This process points to the strength of our legal framework as it has driven the improvement of standards without suffocating innovation.

My noble friend Lady Sanderson and the noble Baroness, Lady Ludford, asked about DCMS and cross-departmental working. The answer is that we work very closely. The Home Office is also part of a pilot looking at how the algorithm transparency standard works for the department’s own activities. As for the White Paper, it will come some time next year but I am afraid I do not have a specified date.

I thank all noble Lords who have contributed to this fascinating debate. I extend my thanks again to the committee for all the work and insight that went into producing a thorough and engaging report on these very complex issues. We do not fully agree on the way forward in terms of specific steps, but I am confident in suggesting that there is a broad consensus about the need for a long-term approach. Whether that stops noble Lords being disheartened, I do not know.

For the Government’s part, we will continue to look at the entirety of the system and seek to encourage improvements at each stage, with a focus on developing policy to ensure that the benefits of new technology are realised throughout the justice system. As the report laid out so clearly, there is no option to pause or stand still. The issues discussed today are of fundamental importance to the safety and security of our citizens and our values, and I look forward to continuing our engagement on these matters.

Investigatory Powers Commissioner (Oversight Functions) Regulations 2022

Lord Sharpe of Epsom Excerpts

Thursday 24th November 2022 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Investigatory Powers Commissioner (Oversight Functions) Regulations 2022.

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

My Lords, I beg to move that the Grand Committee consider the draft Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022, laid before the House on 19 October 2022, and the Investigatory Powers Commissioner (Oversight Functions) Regulations 2022, laid on 18 October 2022.

Protecting our national security and keeping the public safe remains a top priority for the Government, as does ensuring that public trust and confidence in the exercise of investigatory powers are maintained. These two sets of regulations are concerned with the exercise of investigatory powers, and in particular with the important safeguards and oversight. The investigatory powers with which they are concerned are set out in the Investigatory Powers Act 2016 and the Regulation of Investigatory Powers Act 2000, which I will henceforth refer to as RIPA.

We are concerned with three key measures today. First, I will turn to amendments to the Covert Human Intelligence Sources Code of Practice. Throughout this debate I will refer to covert human intelligence sources as CHIS, and the code of practice itself as the CHIS code.

The CHIS code sets out the processes and safeguards governing the use of CHIS by public authorities and provides detailed guidance on how CHIS powers should be exercised and duties performed, including examples of best practice. The draft regulations before the Committee today will bring into force changes to the CHIS code. These changes have been made following amendments made to RIPA by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which I will refer to as the CHIS Act throughout today’s debate.

The amendments made to Part II of RIPA by the CHIS Act ensure that there is a clear and consistent statutory basis to authorise CHIS to engage in conduct that could otherwise be criminal, where it is necessary and proportionate to do so, having regard to the Human Rights Act and the UK’s obligations under the European Convention on Human Rights.

The draft revised CHIS code enhances the protection for children and vulnerable adults where they are to be authorised as CHIS in exceptional circumstances. There has been substantial consultation with charities and interest groups, and we have given due consideration to the valuable feedback they have provided on the changes we have made to the CHIS code.

The investigatory powers regulations will also make necessary changes to the Interception of Communications Code of Practice, which I will now refer to throughout the debate as the interception code. The draft revised interception code provides further guidance on the use of interception by public authorities that exercise such powers, also known as intercepting authorities.

The amendments to the draft revised interception code will reflect the Government’s long-standing position on serving interception warrants on cloud service providers and the enterprise services they provide to customers. These changes will provide much-needed clarity to relevant UK and US companies impacted by enterprise service issues. By enterprises, we mean companies, academic institutions, not-for-profit organisations, government agencies and similar entities that pay cloud service providers to store and/or process their organisations’ electronic communications and other records. When a cloud service provider is providing such services to an enterprise, the enterprise is responsible for providing accounts to its users and determining the reasons for which data is retained and processed.

A public consultation on the proposed changes was carried out between July and October. After further cross-governmental engagement on the draft revised interception code, three additional changes to the proposed revisions were made to provide further examples of the circumstances under which a warrant may be served on a cloud service provider instead of an enterprise customer, and to outline the obligations imposed by the Investigatory Powers Act regarding unauthorised disclosure to help protect national security.

Finally, I turn to the changes to the Investigatory Powers Commissioner’s oversight functions, as proposed in the Investigatory Powers Commissioner regulations. I will refer to the Investigatory Powers Commissioner as the IPC throughout.

These regulations place two areas on a statutory footing: first, the IPC’s oversight of the GCHQ equities process; and, secondly, compliance by members and civilian staff of SO15 at the Metropolitan Police Service and officers of the National Crime Agency with the guidance referred to as the Principles Relating to the Detention and Interviewing of Detainees Overseas. These areas have previously been overseen by the IPC and his office on a non-statutory basis.

The IPC has made it clear, and the Government agree, that he considers formalising his oversight responsibilities as being in the best interests of transparency and robust oversight. As a statutory authority, the parameters of the IPC’s remit are set by Parliament. These changes will provide greater public accountability and enable the effective discharge of the IPC’s responsibilities.

These regulations are vital for keeping the public safe by providing clarity and transparency around the use and oversight of powers. I hope the Committee will be able to support these measures and their objectives. I commend the draft regulations to the Committee. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I apologise for coming in when the Minister was already on his feet. I declare an interest as a council member of Justice, the all-party law reform group that took a significant interest in the CHIS Bill when it was going through the House. It was a very strange time: it was during lockdown when we had Zoom Parliament and so on, as the Minister will recall.

All noble Lords will appreciate that the legislation was—and remains—controversial. Whatever the arguments for and against its necessity, it is controversial to grant advance immunity from prosecution not only to police officers or direct officials and agents of the state but to those whom they run in the community, including in criminal fraternities. We have had the arguments in relation to the legislation itself. None the less, we all need to recognise the dangers that exist with that kind of advance immunity from criminal prosecution, including for quite serious crimes.

During the passage of the legislation the Government said that the Human Rights Act would be a safeguard, and the Minister has repeated that. But we are constantly told that the Human Rights Act is in jeopardy and, with the return of Mr Raab to the Office of the Deputy Prime Minister and as Justice Secretary, that remains in the balance. That needs to be on our minds when we consider these powers and the codes of practice made thereunder.

I will make one further point, about the consultation around the CHIS codes of practice. Justice informs me and other noble Lords that the consultation took place between 13 December 2021 and 6 February 2022—an eight-week period that included Christmas and serious restrictions because of the rise of the omicron variant. That was of concern not only to Justice but to other charities and NGOs that had concerns about the legislation and about victims’ rights in particular. One of their substantive concerns is that there is not enough in the current codes of practice to encourage victims to seek compensation in the event that they are harmed as a result of advance criminal immunity being given to CHIS.

Christmas is a problem for people who work in the sector in any event, because staff are on holiday and so on, but lockdown made it harder still. What Justice says about that is if the Home Office had compensated for the short festive period by going out proactively to consult potential interested parties, that consultation deficit could have been met. But that, I am told, did not happen. As a result, both Justice and the Centre for Women’s Justice, which of course had been very involved in supporting the female victims of the spy cops scandal, made their views known to the Home Office. That has not been a satisfactory engagement.

I know there is a limit to what can be done about this at this point but I intervene today to put this to the Minister. He perhaps was not the Minister responsible at the time of the consultation but might, none the less, keep this under review and possibly open up a line of ongoing communication with Justice and the Centre for Women’s Justice. Although these regulations are of course going to pass, these codes of practice need to be kept under review, as does the operation of this legislation with the codes of practice. I know from my dealings with him that the Minister is a reasonable person. After the regulations pass, I hope that he will perhaps meet these people to keep that conversation going and ensure that the operation of these provisions and vital codes of practice is monitored, and that the monitoring from the Home Office actively encourages involvement from those who work on victims’ rights and in the sector.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all three noble Lords for their considered responses on these regulations. As I set out earlier, the changes we are seeking to make through the regulations will ensure that the investigatory powers regime functions effectively, with appropriate oversight and safeguards, to protect our national security and keep the country safe; I welcome the reassurance from the noble Lord, Lord Ponsonby, on that from his side. I will do my best to answer all the questions that have been asked. Obviously, if I miss anything, I will carefully go through Hansard and commit to write to noble Lords.

The noble Baroness, Lady Chakrabarti, asked why the public consultation was somewhat truncated, over Christmas and what have you. When the CHIS Bill was introduced to Parliament in September 2020, the Government also published a draft revised code of practice setting out the changes that it was anticipated would be appropriate, were the Bill to be enacted as introduced. The noble Baroness recalled the lively debates in Parliament during the Bill’s passage and the Government’s collaborative approach to engagement with both parliamentarians and wider stakeholders, during which a broad range of expertise was brought to bear and views were aired in respect of the policy underlying the Bill. The public consultation on the revised CHIS code, which commenced on 13 December 2021 and concluded on 6 February 2022, as noted, concerned not the policy underlying the CHIS Act but the proposed changes to the current code. Many of these changes were set out in the draft revised code, published alongside the Bill, in September 2020. The consultation was originally scheduled to last six weeks but, as much of that period was over the Christmas holidays, we extended the consultation by a further two weeks to accommodate that.

The noble Baroness also asked about compensation for victims of criminal conduct authorisations. Section 27A of RIPA makes it clear that those who have been victims of criminal conduct authorised under a criminal conduct authorisation are entitled to compensation, notwithstanding that the criminal conduct may have been authorised by a CCA. Any person or organisation is able to make a complaint to the Investigatory Powers Tribunal against a public authority if they suspect a public authority of using covert techniques against them, which will be independently considered by the IPT. Additionally, a person is able to make a claim to the IPT under the Human Rights Act 1998 for any suspected breaches of human rights that they believe have been committed against them in connection with conduct where Part II of RIPA is concerned.

I want to go into a little detail on the comments around women’s groups. I reiterate that it is never acceptable for an undercover operative to form an intimate sexual relationship with those whom they are employed to infiltrate and target or may encounter during their deployment. That conduct will never be authorised, nor must it be used as a tactic of a deployment. The noble Baroness, Lady Chakrabarti, will know that, in a specific case, the review is ongoing.

We are aware of historical instances in which the authorisation of CHIS has disproportionately disadvantaged women, for example in the case of Wilson v Metropolitan Police. That related to the actions of undercover police officers deployed to gather intelligence on protest groups and people associated with them between 2003 and 2009. The Investigatory Powers Tribunal found that the sexual relationships of an undercover officer with a female member of those protest groups demonstrated that there had been failures in the supervision and management of undercover officers.

Since 2013, steps have been taken by His Majesty’s Government to strengthen safeguards and increase oversight to prevent such activity by law enforcement. Separately, the Undercover Policing Inquiry was established in 2015 to inquire into and report on undercover police operations in England and Wales since 1968. That inquiry is ongoing; the Home Office will consider the report of its findings in due course. I am sorry to answer that point at length, but I think it is worth stressing.

On the question from the noble Lord, Lord Paddick, about the public consultation and the Government’s response to it, Home Office officials carefully considered all the responses received on the revised code as part of the public consultation. The process took more time than expected, but we wanted to ensure that we gave full consideration to the concerns raised. Having a robust code of practice is an important part of maintaining public trust and confidence in the use of the powers to which the code relates.

On operating without a CHIS code, safeguards in the Act and under it were already enforced; the code provides guidance. A draft revised code has been in place since the Bill was before the House.

All noble Lords referred to safeguards. It is of course important that authorisation of CHIS activity is subject to robust and independent safeguards. The CHIS code provides guidance and clarity on the safeguards related to the use of CHIS that are set out in the CHIS Act. For example, all authorisations are granted by an experienced and highly trained authorising officer, who, as noble Lords will recall, is of high rank and will ensure that the authorisation has strict parameters and is clearly communicated to the CHIS. In addition, as with other sensitive investigatory powers, the use of CHIS is overseen by the Investigatory Powers Commissioner under the Investigatory Powers Act 2016, thereby providing robust and independent oversight of the power.

When public authorities authorise criminal conduct authorisations, the judicial commissioners within the Investigatory Powers Commissioner’s office, which I will henceforth refer to as IPCO, must be notified of a criminal conduct authorisation within seven days of an authorisation being granted or cancelled. Where an authorisation is granted, such notifications must set out the grounds to which the authorisation relates and specify the conduct that is authorised.

The IPCO also conducts inspections of public authorities that have the power to authorise CHIS and publishes an annual report on the findings from these inspections. Previous annual reports on the management of CHIS have been positive. In 2018 the IPCO annual report found that, in all instances, MI5’s authorisations of CHIS participation in criminal conduct were

“proportionate to the anticipated operational benefits”

and met “a high necessity threshold”.

On the safeguarding of children, I stress that the revised code makes clear that children are able to be authorised as CHIS only in exceptional circumstances and subject to the enhanced safeguards, including the risk assessment process set out in Article 5 of the juveniles order. An enhanced level of safeguards also applies to the rare occasions when there is a need to authorise a vulnerable adult to engage in CHIS activity, including criminal conduct. As with authorising children as sources, vulnerable adults should be authorised to act as a CHIS only in exceptional circumstances.

These are substantive amendments to the code of practice that focus on the well-being and safety of the child or vulnerable adult. It is right that there are additional safeguards for these authorisations. These amendments provide this further protection while ensuring that they do not create any unintended consequences that risk the safety of the individual. We have consulted extensively with charities and rights organisations in preparing the draft code to ensure that these safeguards are at the heart of the guidance.

On the limits on CHIS criminal conduct, a CHIS will never be given authority to engage in criminal conduct of any and all kinds. All authorisations must be necessary and proportionate to the criminality they are seeking to prevent, and the authorising officer must ensure that the level of criminality authorised is at the lowest level of intrusion possible to achieve the aims of the operation.

Any authorisation for a CHIS to engage in criminal conduct must comply with the European Convention on Human Rights—the noble Baroness will forgive me for not speculating as to the current state of affairs with that. This includes the right to life, and prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment.

The noble Lord, Lord Ponsonby, referred to the fact that the CHIS Act does not list specific crimes that may be authorised or prohibited. The reason is sound: to do so would place in the hands of criminals, including terrorists and hostile state actors, a means of creating a checklist for suspected CHIS to be tested against. That would threaten the future of CHIS capability and result in an increased threat to the public.

As I have already said, a CHIS may be granted only where necessary, proportionate and compliant with the Human Rights Act. The use of agents provocateurs or entrapment undermines a person’s right to a fair trial. That is reflected in the Undercover Policing Authorised Professional Practice, which states in clear terms that an undercover officer

“must not act as an agent provocateur.”

Although agent provocateur is not a defence at law, it is managed through common-law principles, and the updated director’s guidance on charging provides safeguards to ensure that the Crown discharges its disclosure obligations to ensure that an agent provocateur issue does not cause a miscarriage of justice. Furthermore, the criminal courts have developed safeguards to ensure fairness in criminal proceedings, including where entrapment is alleged to have occurred.

I am sorry, I am slightly out of sync. The noble Lords, Lord Ponsonby and Lord Paddick, asked whether the juveniles order will be amended to reflect paragraph 4.4 of the code. We have already amended the juveniles order. We do not intend to amend it again at present.

Finally on this, a failure to comply or to have regard to the code would be a relevant error per Section 231(9)(a) of the Investigatory Powers Act. It is therefore an oversight issue, so it would be a matter for IPCO.

I move on to the interception code, which the noble Lord, Lord Paddick, asked about. We wanted to make these changes as close as possible to the entry into force of the UK-US data access agreement, given that the number of requests to which this existing policy will apply will be significantly higher now that the agreement has entered into force. Additionally, as per Section 260 of the IPA, the Home Secretary will shortly publish a report on the operation of the IPA, in line with her statutory obligations. It would be wrong to pre-empt the outcomes of that report. We will continue to keep all the IPA codes of practice under review.

I must stress that this instrument does not expand the IPC’s remit but simply formalises existing functions. Neither will it provide intelligence agencies or law enforcement authorities with new powers. The regulations to amend IPCO’s functions will ensure that the IPC’s functions are underpinned by statute, increasing public accountability, transparency and robust oversight. These are important powers—again, I join the noble Lord, Lord Ponsonby, in singling out the relevant personnel for our thanks and praise—and will allow our agencies to keep the public safe and to protect national security.

I think I have answered all the questions. I am very grateful for the contributions that have been made, but as I set out in my introduction, these changes we seek to make will ensure the greater efficiency of the IPA and that the Act continues to retain world-leading safeguards and oversight.

Motion agreed.

Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations

Lord Sharpe of Epsom Excerpts

Thursday 24th November 2022 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations.

Relevant documents: 16th Report from the Secondary Legislation Scrutiny Committee

Motion agreed.

Proceeds of Crime (Money Laundering) (Threshold Amount) Order 2022

Lord Sharpe of Epsom Excerpts

Thursday 24th November 2022 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Proceeds of Crime (Money Laundering) (Threshold Amount) Order 2022.

Relevant documents: 16th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, this draft statutory instrument raises the existing threshold in the Proceeds of Crime Act 2002 below which certain businesses in the anti-money laundering regulated sector do not need to submit defence against money laundering suspicious activity reports, known as DAMLs. The amount is being raised from £250 to £1,000. This aims to increase the efficiency and effectiveness of the DAML regime for law enforcement, businesses and customers.

A DAML is submitted to the National Crime Agency by a person proposing to deal with suspected criminal property that may make them liable for one of the principal money laundering offences under the Proceeds of Crime Act 2002. By submitting a DAML, a person can avoid criminal liability by obtaining consent or deemed consent for the act they propose to carry out; for example, a customer’s transaction to pay their rent. The DAML provides intelligence to the National Crime Agency and effectively freezes a transaction until it gives a consent decision or seven working days pass, after which businesses can assume that they have the relevant consent.

Raising the threshold to £1,000 is required now because the volume of DAMLs is rising and the vast majority do not provide law enforcement with asset seizure opportunities. Instead, they place regulatory burdens on businesses to submit and burdens on law enforcement to review, and cause a delay to customers, who must often wait seven days for their transaction to process.

To put the volumes in perspective, between 2018-19 and 2019-20 they increased by 80%, from 34,543 to 62,341. They then increased by, by my calculations, a further 41% to approximately 105,000 in 2020-21. In 2019-20, only 2% of all DAMLs, equivalent to 1,365, were refused consent by the National Crime Agency. Of those, only 1,062 progressed to law enforcement pursuing asset denial. The threshold applies to transactions in the operation of an account which do not relate to the opening or closing of an account. It applies only to deposit-taking bodies—in essence, banks and building societies—and to electronic money and payment institutions. This uplift in the threshold will result in fewer delayed transactions for businesses and customers where a DAML is no longer needed. It will allow businesses to prioritise their resources towards intelligence-led investigations and will enable law enforcement to focus on higher-priority reports that provide opportunities for asset seizure and disruption of criminal activity.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this order as well. As the noble Lord, Lord Paddick said, it seems a reasonable increase and some organisations would have gone to £3,000. However, there were other respondents to the consultation who were against the increase to £1,000; they wanted to keep it at the lower limit. Can the Minister say what their concerns were? Although I agree with the noble Lord, Lord Paddick, that £1,000 seems reasonable, other people thought it should have stayed at its original level: does the Minister know why they thought that? He indicates that he does not know why—okay.

I have some of the same figures that the Minister quoted. The Explanatory Memorandum states that the volume of DAMLs is rising steeply and gave those figures. The question is: what percentage of those 105,000 referrals were over the new £1,000 threshold—what difference will increasing the threshold to £1,000 make?

On the further figures that the Minister quoted, he said that only 2% of all DAMLs were refused consent in 2019-20, of which only 1,062 progressed towards asset denial. The question is, of that 2%, how many of those DAMLs were for amounts over £1,000 and so would still be caught? Both those questions are about how much the amount of work will be reduced by increasing this limit, although we of course approve of the objective.

One of the main benefits suggested by the Government, with which we agree, is that this measure should free up law enforcement to pursue other activities. We welcome that in itself. We heard from the current Home Secretary’s predecessor that the National Crime Agency has been asked to make staffing cuts of up to 20%. Can the Minister say anything about whether that previous expectation is still in place or has now been ruled out?

The Explanatory Memorandum states:

“A full Impact Assessment has been published alongside the Economic Crime and Corporate Transparency Bill, which considers the impact of the changes in this instrument.”


One of our key concerns about that Bill is its failure to tackle fraud and economic crime, with falling rates of enforcement and prosecution. I understand that this change is intended to reduce the number of ineffective DAMLs, but what action is being taken alongside that to try to increase the prosecution rate? It is a huge problem and it is very time-intensive to secure successful prosecutions—I understand that—so although we support this SI I would be grateful if the Minister could set out in a slightly broader context how he will try to increase the possibility of getting successful convictions.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their support. In answer to the detailed statistical questions from the noble Lord, Lord Ponsonby, the National Crime Agency has yet to publish its report into 2020-21 or 2021-22. The details will be in there; I will be happy to share that report as soon as it is published, if that is acceptable.

The noble Lord also asked me about staffing at the National Crime Agency. I cannot answer his specific question and do not wish to stray there, but I can say that we are increasing capacity in law enforcement to analyse and act on suspicious activity report intelligence. That includes 75 additional officers in the UKFIU, which will almost double capacity. Some 45 of those officers are already in post, and the milestone for recruiting the remaining 30 is the end of this financial year, 2022-23. I will not go beyond that at the moment but we all share the noble Lord’s concerns, particularly about financial crime, which, as we know, is a pressing problem.

However, we should also salute the news stories I heard this morning about the Metropolitan Police apparently busting a fairly sizeable scamming organisation. Well done them; let us hope that that results in a large number of successful prosecutions.

I will stop there. Once again, I thank both noble Lords for their support. We believe that this intelligence is a critical tool in our ability to identify, disrupt and recover the hundreds of millions of pounds that underpin the most serious organised crime in the UK. That intelligence will be preserved through this adjustment and the requirement to submit intelligence-only SARs even when businesses are using the threshold exemption. Increasing the threshold is a measure supported by industry and law enforcement. I am sorry, I do not know who did not support the rise; I will try to find out.

Setting the threshold at a more appropriate level to reflect the current landscape is an important step towards improving the performance of the anti-money laundering system to better disrupt money laundering, terrorist financing and high-harm offences.

Motion agreed.