Safety of Rwanda (Asylum and Immigration) Bill

Lord Sharpe of Epsom Excerpts

3rd reading
Tuesday 12th March 2024 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the Bill do now pass.

[Lord Howard of Lympne (Con)]

My Lords, I wish to make a point which I hope may be taken into account by honourable Members in another place, though I fear it is unlikely to find favour with most of your Lordships. I cast no aspersions on the motivation which has led to the amendments your Lordships have passed. An undeniable consequence of most of these amendments would be delay in dealing with an issue which is regarded as important and urgent by very many people in our country—an issue to which no alternative remedy has been advanced. I hope that this point may be taken into account by honourable Members in another place, even if not by most of your Lordships.

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

My Lords, as the Bill nears completion of its passage through your Lordships’ House, it is obviously timely for me to say a few words. First, I want to say that I heard what the noble Lord, Lord Alton, said. The two responses to the JCHR and the Constitution Committee were cleared this morning and issued this afternoon. I apologise that this has taken a while longer than it should have. They deal with the questions raised by the noble Lord, Lord Kerr. The key point remains, of course, that the Government will ratify the treaty only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty. We have dealt with that at some length over the passage of the Bill.

I think we can all agree that there is common ground in the view that we need to stop the boats. We need to prevent the tragic loss of lives at sea and bring to an end the horrid trade of the criminal gangs who are exploiting people for financial gain. Where there is disagreement is on the means by which we can achieve that and the strength of our desire to carry out the will of the British public—to control our border and tackle this global crisis of illegal migration. I note the point made by the noble Lord, Lord Alton, that it is a global crisis that will inevitably require global solutions.

The Government have made progress towards stopping the boats. Small boat crossings were down by a third in 2023, when our joint work with France prevented more than 26,000 individuals crossing by small boat to the UK. There is, however, more to do. As we have made unequivocally clear, to stop the boats and prevent people taking such perilous journeys across the channel, we need to send out a message that if you arrive in the United Kingdom by such means, you will not be able to stay.

We need to be able to take bold and innovative steps to create a strong deterrent that will stop the loss of lives at sea. Our partnership with Rwanda provides just that. The new, legally binding treaty with the Government of the Republic of Rwanda responds to the Supreme Court’s concerns, reflecting the strength of the Government of Rwanda’s protections and commitments. Under our new legislation, migrants will not be able to frustrate the decision to remove them to Rwanda by bringing systemic challenges about the general safety of Rwanda. It is imperative that the scheme as provided for in this Bill is robust and sends the unambiguous message that if you enter the UK illegally, you will not be able to build a life here. Instead, you will be detained and swiftly returned either to your home country or to a safe third country.

In light of the non-government amendments agreed by your Lordships’ House on Report, it is clear that many noble Lords in this House do not agree on how to end the misuse of our immigration process. However, it is not an option for us to not act: without a plan or an alternative approach, more lives will be tragically lost at sea and the financial burden on the British taxpayer will grow as millions of pounds continue to be spent each day accommodating people in hotels. We have spoken at length about the protections needed for various vulnerable cohorts of people, which we are satisfied this Bill and partnership will provide. However, as I have said repeatedly, the people to whom we refer are those who have already reached a country of safety, where they could and should have claimed asylum.

As the noble Lord, Lord Dubs, noted, there was some debate on Report about consultation with the Crown dependencies. The Government, of course, recognise the concerns raised by some noble Lords and remain committed to consulting the Crown dependencies on any legislation which might affect them, including on the inclusion of a permissive extent clause, but I am grateful to the noble Lord, Lord German, for clarifying.

Although I have no doubt that the amendments passed by this House are well intended, some do indeed—as my noble friend Lord Howard noted—seek to undermine the core purpose of the Bill and would continue to allow relocations to Rwanda to be frustrated. No doubt, our debate on such matters will continue.

That said, I want to take this opportunity to thank noble Lords for their valued contributions during the passage of the Bill through this House. I want to express my appreciation to the noble Lords, Lord Coaker and Lord Ponsonby, for the courteous manner in which they have engaged with me on the Bill. I thank them also for their warm words. I also wish to extend my thanks to the noble Lord, Lord German, and his Front-Bench colleagues for their clarity of views, albeit ones with which I have not agreed.

I want also to record my gratitude for the invaluable support and assistance of my noble and learned friend Lord Stewart of Dirleton. I must also put on record my thanks to the Bill team, my private office, and all the officials and lawyers in the Home Office and the Ministry of Justice who have provided such thorough support and expertise.

In conclusion, the purpose of this Bill is to deter dangerous and illegal journeys to the United Kingdom, which are putting people’s lives at risk, and to disrupt the business model of the people smugglers who are exploiting vulnerable people. This Bill reflects the strength of the Government of Rwanda’s protections and commitments given in the internationally binding treaty to people transferred to Rwanda in accordance with the treaty. Alongside the evidence of changes in Rwanda since the summer of 2022, this Bill will enable Parliament to conclude that Rwanda is safe. I have no doubt that we will shortly be debating these matters vigorously again, but, for now, I beg to move.

Bill passed and returned to the Commons with amendments.

Operation Conifer

Lord Sharpe of Epsom Excerpts

Monday 11th March 2024 Lords Chamber

[Lord Lexden]

To ask His Majesty’s Government whether they plan to appoint a senior lawyer to review the seven allegations against Sir Edward Heath left unresolved at the end of Operation Conifer in 2017.

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

My Lords, the Government have no plans to appoint a senior lawyer to review the outstanding allegations against Sir Edward Heath. It remains for the local police and crime commissioner to consider whether an inquiry, or any other form of further review, is necessary.

[Lord Lexden (Con)]

My Lords, I am accustomed to disappointing replies, but I had hoped for something a little more positive on this occasion. I remind the House of the wide cross-party support that has been expressed on numerous occasions for action to address the grave harm done to the reputation of Sir Edward Heath by the failure of the police investigation in Wiltshire to clear up all the foul allegations made against him long after his death. Is it not important to remember that four of the seven unresolved allegations to which my Question refers could not possibly be true, as I made clear in a debate in January? There is good reason to suppose that the other allegations are also groundless, which is why a limited review of these seven unresolved allegations is imperative.

[Lord Sharpe of Epsom (Con)]

My Lords, in October 2018, the then Home Secretary, Sir Sajid Javid, wrote to Lord Armstrong following a meeting with him and other Peers to discuss Operation Conifer and related matters. In that correspondence, the then Home Secretary wrote:

“As I think you would agree, the real issue here is not so much Operation Conifer itself, but the inconclusive nature of its findings and what you describe as ‘the cloud of suspicion that … continues to hang over Sir Edward Heath’s memory and reputation’ … it is not clear to what extent a further review of the existing evidence by a judge or retired prosecutor would resolve this. It remains my view that the handling of this is properly a matter for the local PCC and that it would not be appropriate for me to seek to persuade him how he should go about it”.


That largely remains the case, and the current Home Secretary wrote in answer to a Parliamentary Question on 7 February that

“the Government has no plans to commission a review of either the conduct of the investigation … or the findings”.

We are aware of no direct precedent for the type of review that my noble friend calls for. However, I am happy to ask officials to look into this to see whether it is either possible or viable, and I will report back in due course.

[The Senior Deputy Speaker (Lord Gardiner of Kimble)]

My Lords, the noble Lord, Lord Campbell-Savours, is taking part remotely. I invite him to speak.

[Lord Campbell-Savours (Lab) [V]]

My Lords, why perpetuate the existence of these allegations by refusing to establish the independent review we have all called for for years? No one has ever produced a shred of evidence. The allegations are based on the early ranting of Carl Beech, a proven liar now languishing in prison. What possible benefit is to be gained by leaving on the table accusations that tarnish the reputation of a former British Prime Minister, over which historians will argue? I simply cannot understand the Government’s hesitation, and neither can anybody else I speak to.

[Lord Sharpe of Epsom (Con)]

The noble Lord obviously makes a good point, and I have just committed that we will certainly look into this. But, as he will be aware, there were a number of forms of scrutiny during the investigation. There was an independent scrutiny panel to ensure proportionality. There were two reviews by Operation Hydrant, in September 2016 and May 2017, which concluded that the investigation was proportionate, legitimate and in accordance with national guidance. There was a review in January 2017 by HMICFRS, as it was then, into whether the resources assigned to the investigation by the Home Office were being deployed in accordance with value for money principles. In November 2017, the PCC referred two matters concerning the then chief constable to the IOPC. This has been extensively looked at by external and independent bodies already, but we will, as I say, look into the possibility or viability of other reviews.

[Lord Birt (CB)]

My Lords, for decades, Edward Heath was guarded day and night by police and supported by domestic staff. As a young television producer, I met him many times. Indeed, I made a one-hour documentary about him while he was Prime Minister, spending a lot of time in his presence and talking widely, during the course of the making of this, to many people who knew him well. I find it hard to believe—indeed, I think it is impossible—that Edward Heath was a practising paedophile, and it is deeply unjust that a shadow of suspicion should be allowed to hang over him unresolved. We have a dreadful record in this country—a long list in recent times—of wrongs that have not been righted. Please can we put this wrong right?

[Lord Sharpe of Epsom (Con)]

My Lords, I reiterate that the investigation summary closure report stressed that no inference of guilt should be drawn from the conclusion that Sir Edward would have been interviewed in a very few cases. I shall not go further to comment on the operational nature of the original investigation.

[Lord Sherbourne of Didsbury (Con)]

My Lords, is not there a puzzle here, in that the Home Secretary, James Cleverly, is a decent and fair man? Surely he understands that it is unacceptable that a former Prime Minister, a man of great integrity, should still have these unsubstantiated allegations circulating around him, which could besmirch his reputation. Does my noble friend the Minister not agree? If he could come to this House to say that the Home Secretary is taking action on this point, it would command great support across all parts of the House.

[Lord Sharpe of Epsom (Con)]

Well, as I have said, and I say again to my noble friend, I have heard the strength of feeling in the House on a number of occasions, which is why I asked the Home Secretary to review the Hansard of our recent debate in some detail. He replied to that debate on 7 February, and I really cannot improve on what he said.

[Lord Dholakia (LD)]

My Lords, the noble Lord, Lord Lexden, is right to be disappointed with the reply that he received from the Minister. No police service has a right to review its own special operation. In this country, we have what we commonly call the police conduct authority. Would the Minister recommend to the authority that it looks at the results of the Conifer investigation to see whether the decision that it reached was legal, honest, decent and true?

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[Lord Sharpe of Epsom (Con)]

My Lords, I remind the noble Lord that I have just gone through the various forms of independent scrutiny to which this investigation was subject in some detail, and I shall not refer to it again. As I say, the IOPC and others have looked into this in some detail.

[Lord Bach (Lab)]

My Lords, is the Minister aware that, at the end of his response to the noble Lord, Lord Lexden, he seemed to throw out just a little bit of encouraging information. I welcome that, and hope that the Minister goes back, recognising the very widespread feeling around this House that justice has not been done to the reputation of a Prime Minister who has been unfairly treated, right up to this time. It is important that justice is done soon, rather than the issue hanging on for year after year of non-action.

[Lord Sharpe of Epsom (Con)]

I can only repeat that I have said that I shall ask officials to look into the possibility or viability of this—I cannot possibly prejudge what they may come back to me with, but I shall come back to the House in due course.

[Lord Butler of Brockwell (CB)]

My Lords, I hope that the noble Lord, Lord Lexden, and the House take a little encouragement from what the Minister said today. When the noble Lord, Lord Lexden, had his last debate, I entered the debate thinking that it was not worth having the expense of a public inquiry into reports that nobody believed, and I was persuaded by the debate that we could not leave this injustice on the table. This suggestion seems to me to be an economical way of disposing of it—a report by a distinguished lawyer. Could the Minister please encourage the Home Secretary to look very carefully at that and allow it to happen?

[Lord Sharpe of Epsom (Con)]

I cannot honestly say whether it would be economic or not, for obvious reasons—I do not know yet. But I shall certainly make the strength of feeling known once again to the Home Secretary.

[Lord Hunt of Wirral (Con)]

I recognise now that my noble friend the Minister is aware that the mood and will of this House is very much behind my noble friend Lord Lexden and his call for justice. Whatever his briefings may say, there really has been no independent investigation of the flawed processes of Operation Conifer. As the noble Lord, Lord Butler of Brockwell, has just said, perhaps there is at last an opportunity. Please would my noble friend the Minister take every advantage of this opportunity and put right the injustice that we all feel so deeply has been done?

[Lord Sharpe of Epsom (Con)]

Well, once again I hear what my noble friend says, and I shall certainly do my best to represent the views that have been very firmly expressed in the House by taking them back to the Home Secretary and the Home Office.

[Lord Watts (Lab)]

My Lords, is it not the case that this is not a unique case? The problem is that names are released before people are charged. Is it not about time that we looked at that as an issue, not just for this case but for many others?

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[Lord Sharpe of Epsom (Con)]

The noble Lord raises a very interesting point and, again, I will take that back.

Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2024

Lord Sharpe of Epsom Excerpts

Wednesday 6th March 2024 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations and Order laid before the House on 18 October 2023 and 31 January be approved.

Relevant documents: 13th Report from the Secondary Legislation Scrutiny Committee, 1st Report from the Joint Committee on Human Rights. Considered in Grand Committee on 5 March.

Motions agreed.

Former Independent Chief Inspector of Borders and Immigration: Reports

Lord Sharpe of Epsom Excerpts

Wednesday 6th March 2024 Lords Chamber

[Lord Browne of Ladyton]

To ask His Majesty’s Government what assessment they have made of the release on 29 February of 13 reports produced by the former Independent Chief Inspector of Borders and Immigration, and their findings in particular with regard to the conduct of staff responsible for unaccompanied refugee children in Kent.

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

My Lords, last Thursday we published 13 reports that were outside the normal eight-week commitment to review and respond. We also published the Government’s responses. We take the ICIBI reports seriously and do not wait until their publication to act on their recommendations. We have already implemented several of those recommendations. As regards the incident at the hotel, there was an immediate investigation and the support worker in question was removed.

[Lord Browne of Ladyton (Lab)]

My Lords, the reports are damning, documenting the disappearance of 467 asylum- seeking children and Home Office employees asking lonely unaccompanied children to play a cruel guessing game as to which of them will receive foster care; and revealing systemic failures at the border and in the asylum decision-making process. It beggars belief that David Neal was not sacked for revealing these truths, or that his 13 reports were not released en bloc to minimise security. Who ultimately is responsible for the culture of defensiveness in the Home Office, which Neal suggested had allowed these failures over time to go unchecked? If the Minister disputes this characterisation, can he inform your Lordships’ House in what respect the comprehensive evidence provided in the reports that support his assertion is mistaken?

[Lord Sharpe of Epsom (Con)]

I am afraid I do dispute that characterisation. David Neal had his appointment terminated after he broke the terms of his contract and lost the confidence of the Home Secretary, because he released sensitive and misleading information from unpublished reports, well within the time commitment for publication. The Home Office had therefore not had time to fact-check and redact inappropriate material. I will give an example of the fact-checking required in some cases: the asylum casework report contained 67 factual inaccuracies, the vast majority of which were indeed accepted by the ICIBI. It is important to mention that a new inspector will be appointed following a full and proper process.

As regards the situation in the hotel, as I said, on both occasions of the inspection, the ICIBI found that children accommodated temporarily at the hotels reported that they felt happy and safe and spoke well of the staff caring for them. But, once we learned about the incident from the chief inspector, there was an immediate investigation and the support worker in question was removed and did not return.

[Baroness Berridge (Con)]

My Lords, your Lordships’ House spent many hours considering the Illegal Migration Bill, which considered the law to enable the Home Office to accommodate vulnerable children. Major concerns were raised at that time. Indeed, the Children’s Commissioner has said that it is “not appropriate” for the Home Office to accommodate vulnerable children—it is not its expertise. Will my noble friend the Minister accept her offer, in these circumstances, to conduct an inquiry and find out exactly what has been going on with what is obviously a most vulnerable group of children, many of whom are primary school age?

[Lord Sharpe of Epsom (Con)]

My Lords, since the two ICIBI inspections, in 2022 and 2023, we have closed all seven hotels used to accommodate unaccompanied asylum-seeking children. It goes without saying that the safety and welfare of unaccompanied asylum-seeking children is a priority. The multidisciplinary wraparound care provided in the hotels, including access to nurses and social workers, ensured that children were supported around the clock.

On whether they were of primary school age, I am afraid I do not recognise those numbers. I can update the House: as of 5 March, 118 children are still missing; 104 of those are Albanian, all of them are male, and the vast majority were aged 16 and 17 when they went missing. Only about 18 are still under the age of 18. It is not quite the picture that my noble friend painted.

[Baroness Lister of Burtersett (Lab)]

My Lords, the chief inspector was due to start an inspection on the age assessment of unaccompanied asylum-seeking children shortly. What will happen to this now that he has been sacked? If an interim inspector is appointed, as was suggested by the Minister in the Commons, could he be encouraged to look at this, given all the accumulating evidence of the wrongful age assessment of children?

[Lord Sharpe of Epsom (Con)]

This is obviously a subject to which we will return a bit later, but as I said, a new chief inspector will be appointed following a full and proper process in accordance with the Governance Code on Public Appointments. The Home Secretary is considering appointing an interim chief inspector to cover the period of recruitment. What his remit will be I do not know, but of course we will come back in due course.

[Baroness Brinton (LD)]

My Lords, since autumn 2022, we have had a number of Questions and Statements on the status of the Home Office as corporate parent when there is a gap before the appointment of a council. Indeed, on 23 January last year, my noble friend Lord Scriven asked when the Home Office was going to become a corporate parent, and the Minister at the time said that he would take it back and discuss it. The recently published ICIBI report covering an inspection in September and October last year says that

“the Home Secretary’s use of hotels to accommodate unaccompanied asylum-seeking children was unlawful. The Home Office has been running unregistered children’s homes for two years now, when these children should be in the … care of Kent County Council”.

Can the Minister confirm that the Home Office no longer has an invisible corporate parent responsibility without actually doing it lawfully?

[Lord Sharpe of Epsom (Con)]

My Lords, as I said, we have closed the seven hotels that were used to accommodate unaccompanied asylum-seeking children, as identified in the two ICIBI inspections. As the noble Baroness will be aware, the Home Office will return to the High Court on 14 March as part of the ongoing High Court oversight of the Kent County Council case, so I will say no more on that at the moment.

[Lord Carlile of Berriew (CB)]

My Lords, the chief inspector raised the issue of the national security risk caused by general aviation—that is, private aviation, a subject which has caused concern to successive Independent Reviewers of Terrorism Legislation going back over many years. Can the Government assure the House that this issue has been given close attention in recent weeks, despite any disagreements with the chief inspector?

[Lord Sharpe of Epsom (Con)]

Yes, I can give that assurance. I would also reassure the House that Border Force facilitated 132 million passenger arrivals last year and 96% of passengers were processed within service standards. Significant progress has been made since that report was commissioned on increasing the number of officers who are trained appropriately.

[Lord Coaker (Lab)]

My Lords, the Minister gave us an updated figure—that 118 children are still missing. That is truly shocking: the state has lost 118 children. What was lacking in the Minister’s answer was any description of what the Government are doing to try to find those children. What effort is being made to locate them? What liaison is taking place with police, social services and children’s services across the country? I say again to the Government: they have lost 118 children. If the state were a parent, it would be prosecuted.

[Lord Sharpe of Epsom (Con)]

The noble Lord has made that point before. Of course, we are unable to detain anybody, so when he characterises them as being lost, they have left as much as anything else. When they go missing from hotels, a multiagency missing persons protocol is mobilised, alongside the police and local authorities, to establish their whereabouts and ensure they are safe. Many of those who go missing are subsequently traced and located. The Home Office continues to review and improve practices around preventing children going missing, including work with the National Police Chiefs’ Council, which is publishing, and has published, guidance on missing migrant children. I say again: the vast majority of these were aged 16 and 17. Only 18 are still aged under 18.

[Lord Purvis of Tweed (LD)]

The Government’s Rwanda Bill will now contain measures that will allow unaccompanied children to be relocated to Rwanda, and the Government have published a country note for Rwanda stating that it is a safe country. Normally, country notes are reviewed by the independent commissioner, but David Neal’s office confirmed to me on 17 January that the Government had not yet asked for an independent review of their country note statement that Rwanda is a safe country. Now that there is no independent reviewer, how will Parliament know that that statement has been reviewed by an independent commissioner?

[Lord Sharpe of Epsom (Con)]

To start with, the noble Lord is incorrect in saying that unaccompanied children will be sent to Rwanda; as he is well aware, that is prohibited under Article 3 of the treaty. On the review, the ICIBI started on the country-of-origin information but that has not yet been sent to the Home Secretary. That is one of the ongoing pieces of ICIBI work that cannot be finalised until a new or interim ICIBI has been appointed, and I cannot comment on that process yet.

[Lord Brooke of Alverthorpe (Lab)]

Do we not have thousands of people in this country who should not be here, but of whose whereabouts we have no knowledge? Had the Government and the Lib Dems not abolished the Labour Party’s plan to introduce an identity system, we would know where they were.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very interesting point.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the Government got confused and in a bit of a mess about assessing the age of many people coming into the country. Further to the question from the noble Baroness, Lady Berridge, how can the Government be sure that the number of primary school-age children is accurate, according to their judgment?

[Lord Sharpe of Epsom (Con)]

As the noble Baroness will be aware, there are a number of different views on this. Age assessments go both ways. I was reading of a case earlier where a number of children requested that one of their number who had been imposed on them be looked into because the said person was significantly older than he appeared to be, and that was found to be the case. It works both ways.

Police Recruitment: Reform

Lord Sharpe of Epsom Excerpts

Tuesday 5th March 2024 Lords Chamber

[The Lord Bishop of Manchester]

In begging leave to ask the Question in my name on the Order Paper, I declare my interest as co-chair of the national police ethics committee.

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

My Lords, the horrific crimes committed by a then serving police officer shocked the nation and undermined public confidence in the police. My thoughts are with the family and friends of Sarah Everard; I cannot imagine how painful this must be for them. In the years since, the Home Office has worked closely with policing partners to strengthen the way that police officers are recruited, vetted, scrutinised and disciplined. The Government will continue to work with policing partners to consider the findings and recommendations of this report at pace, and will respond fully in due course.

[The Lord Bishop of Manchester]

I thank the Minister for that helpful reply. The Angiolini report makes one thing very clear: the appalling long-term toleration of the killer’s abusive and criminal behaviour was made possible by two related factors. The first is a misogynistic culture, and the second is the persistence of employment practices that discourage women from joining, remaining and progressing to senior roles within police forces. Do His Majesty’s Government accept that the culture of UK policing needs an overhaul? What specific steps will they undertake to reform recruitment and retention to ensure that female officers and staff can thrive in policing, and thrive in the numbers necessary to ensure that women in Britain need no longer fear the dangers that led to the death of Sarah Everard?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

The right reverend Prelate in effect asked me two questions. Decisions about police recruitment, including how recruitment and selection processes are run, are a matter for chief constables and police and crime commissioners, and are therefore managed locally by forces. But they are managed within a national application, assessment and selection framework, which is in line with guidance maintained by the College of Policing. That guidance was updated in February 2023, and all 43 forces are now utilising the various online assessment protocols and the face-to-face requirements.

On the culture of the police, it is difficult to disagree with my right honourable friend the Home Secretary, who said that

“the best processes and structures in the world cannot replace focus and leadership. It is incredibly important that leadership at every rank in policing takes that seriously”.—[Official Report, Commons, 29/2/24; col. 456.]

This is a conversation that he has had with police leaders and the College of Policing to ensure that the attitudes highlighted in the report change. Without that shift in attitude, the culture will remain the same, which is clearly not acceptable.

[Lord Bird (CB)]

Has the Minister ever looked at the fact that we are talking about a class issue here? Most police officers come from the class that I come from, and most of the leading people who run the police force come from another class. It is a bit like the Army. When are the middle classes going to join the police force and create a mix, rather than relying exclusively on the working classes to do the hard part?

[Lord Sharpe of Epsom (Con)]

The noble Lord raises an interesting point. Of course, the point of the police is that they are there to represent us all. According to the Peelite principles, they have to have our consent to do so, and therefore they should very much look like us.

[Baroness Thornton (Lab)]

My Lords, on these Benches too our thoughts are with Sarah Everard’s family at this time. The recommendations that Lady Elish Angiolini makes about vetting are what an ordinary recruitment agency would do as a matter of course: face-to-face interviews and home visits. Anybody in your Lordships’ House who has adopted a cat or dog will know that you have a home visit to make sure you are suitable as a potential adopter—this is basic stuff. They need to find out about the suitability and psychological suitability, taking notice of PNDs and revetting those on transfer from another force or military, or any government location. Taking it on trust that someone has been vetted by these agencies and therefore is okay surely does not work, so why does the Home Office not have a national vetting programme that is compulsory and that all police forces have to follow?

[Lord Sharpe of Epsom (Con)]

The noble Baroness raises some good points, and she is quite right about some of the recommendations made by Lady Elish. The Government of course recognise that there have been significant and justifiable concerns regarding police vetting, so over the past year we have worked to sort that out. As noble Lords will be aware, in early 2023 we asked the College of Policing to update the statutory code of practice for vetting, which was published in July 2023. It makes clear the expectation that chief officers will ensure that vetting standards are maintained within their forces. The vetting code is supported by the authorised professional practice guidance for vetting, which has recently been revised. There is much more to do on this—no one is denying that. I take the noble Baroness’s point seriously but, as I say, we will soon respond in full to the report and the recommendations.

[Baroness Doocey (LD)]

My Lords, everyone is appalled by this dreadful crime and our thoughts are with Sarah Everard’s family. Will the Government commit to ensuring that female police officers and police staff have the same rights as the public to make a complaint of domestic abuse against their own police force? At the moment their only option is to make a criminal complaint, which most of them are not happy to do. That is definitely not helping recruitment or retention of females in the police force.

[Lord Sharpe of Epsom (Con)]

My Lords, we have already referred to the culture that needs to change, and that is part of the overall cultural change that is required. I am not particularly familiar with how that sort of report would need to be made. I will look into that and come back to the noble Baroness.

[Baroness Deech (CB)]

My Lords, does the Minister agree that the current situation represents a terrible collapse of trust throughout society? There was a time when we could all have confidence in politicians, civil servants, police and everything. Now that trust in the police has gone, that is deeply damaging to the relationships that we have with each other and with the organs of society, and to the safety with which women and men can walk around.

[Lord Sharpe of Epsom (Con)]

I agree with the noble Baroness up to a point. As I said in my earlier answer, that trust has to be rebuilt by strong leadership. In the case of the Metropolitan Police, Sir Mark Rowley has demonstrated his capacity to give the leadership that is required. He needs to be allowed time for that to happen, but he has been in post for a while so I am hopeful that results will be delivered soon.

[Baroness Hughes of Stretford (Lab)]

My Lords, in addition to the 16 recommendations pointing to specific system and individual failings that explain what happened in this very tragic case, Lady Angiolini identifies two factors. One of them, mentioned by the right reverend Prelate, is the culture in the police that has persistently not changed. The second is the failure of senior police leadership to deal with those issues and challenge that culture. What women in particular, the public in general and the thousands of decent men and women in the police service want to see is the Government taking responsibility for the changes that are required—not saying that this is the province of chief constables or whoever but showing responsibility and leading the change that is necessary.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

We do. Obviously we have to maintain the operational independence of the police—I do not think there is any question or dispute about that—so leadership of the police has to remain localised to that extent. However, noble Lords will be aware that we have invested in the College of Policing’s National Centre for Police Leadership, which has already set out standards at every level. There is no dispute that the leadership of the police needs to up its game.

[Lord Paddick (Non-Afl)]

My Lords, I declare my interests as set out in the register. What plans does the Home Office have to take some responsibility here and mandate the psychological assessment of potential police recruits, looking particularly for any propensity to inappropriately exert power over others?

[Lord Sharpe of Epsom (Con)]

My Lords, as I understand it, part of the online process for recruitment involves an element of psychometric testing. I do not know precisely what that testing involves, but I will find out and come back. The online assessment process is very complicated—otherwise, I would give more detail.

[Lord Watson of Wyre Forest (Lab)]

My Lords, in 2018 the Government shelved the second part of the Leveson inquiry—which had wisely been initiated by the former Prime Minister, the noble Lord, Lord Cameron —which was to examine the criminal nexus between rogue police officers and journalists. Since then, we have had the Henriques report, the Casey review and now the Angiolini review. How confident is the Minister today that there are not criminal police officers who would have been caught by the second part of that inquiry, who were inappropriately recruited by the police and who are still in office?

[Lord Sharpe of Epsom (Con)]

I cannot comment on the inquiry itself. Unfortunately, I cannot be as confident as I would like to be that there are no police officers out there who remain to be caught. Unfortunately, these incidents keep coming to light. Sir Mark Rowley warned us that there were more still to come to light, so I expect to hear more.

[Lord Carter of Haslemere (CB)]

My Lords, the excellent recommendation 7 of the Angiolini report was that every police recruitment process should have a holistic in-person interview looking at the motivations of the person concerned for joining the police and the extent of their dedication to serving the public. I have a close family member of the fairer sex who has just successfully been through the appraisal system but did not have such an in-person interview matching that description. Will the Minister look closely at recommendation 7 to see how quickly it can be implemented?

[Lord Sharpe of Epsom (Con)]

I have to say that she should have been interviewed face to face. The information I have is that all 43 forces in England and Wales are conducting those face-to-face interviews. Perhaps the noble Lord would like to share the details, and I will investigate further.

Angiolini Inquiry Report

Lord Sharpe of Epsom Excerpts

Tuesday 5th March 2024 Lords Chamber

[Baroness Doocey (LD)]

My Lords, what happened to Sarah Everard was horrific, and made worse by the fact that this callous murder was committed by a serving police officer. The report says that Wayne Couzens should never have been a police officer and that numerous opportunities to end his career were ignored. It lays out a number of steps to ensure that this appalling tragedy is not repeated.

The Minister has promised decisive action and outlined several welcome measures, yet the vehicle required to take such action is available to him now. The Criminal Justice Bill is due to reach this House in the coming weeks. As it stands, the charity Refuge says it is seriously disappointed with the Bill’s measures on police perpetrators, which it believes will do very little to rid our forces of abusers.

The Government have so far resisted a series of amendments, such as one that would mean all allegations of police-perpetrated domestic abuse would be recorded —either as a police complaint or a conduct matter. This would inform vetting and any potential future investigations. Will the Minister reconsider placing such provisions in the Bill, rather than falling back on regulations and, worse still, voluntary codes of practice, which seldom if ever work?

Does the Minister accept that the time has now come to spell out, in no uncertain terms, that violence against women and girls is not acceptable if you are a police officer? That surely means being clear that domestic abuse is not just a criminal matter but a disciplinary matter within the police services themselves.

I also want to address the issue of consistency. At the moment, there is too much variation around the country, and the issue of warrant card removal illustrates this well. In some forces, officers are required to surrender their warrant cards if they are suspended; in other forces, they are not. Sarah Everard’s murder horribly underlines the power that comes with a warrant card. At the very least, surely suspended officers should be required to surrender warrant cards nationwide. This is something that the Domestic Abuse Commissioner is calling for.

Another matter of consistency is on the issue of suspensions themselves. The Government are now saying that there will be an automatic suspension of police officers charged with certain criminal offences pending trial. Can the Minister confirm that domestic abuse offences will be among those leading to suspension?

The Government are planning to change the rules to make it easier for forces to remove officers without vetting clearance. However, removing those who fail vetting or are guilty of gross misconduct will still not be a legal obligation. These measures will not be mandatory or backed by primary legislation. A Liberal Democrat freedom of information request last October revealed that 129 Metropolitan Police officers were still working on the front line while under investigation for allegations of sexual or domestic abuse, eight months on from the Casey review. This is, frankly, a disgrace.

Meanwhile, a clear issue with culture and leadership remains to be addressed. This is particularly critical in the context of an increasingly young and inexperienced workforce, a third of whom have less than five years’ service. The Police Foundation describes a

“culture of silence and complicity”,

where the default is to keep quiet if you want to get on or fit in. This report rightly says that our police must be held to a higher standard of behaviour and accountability given the powers that they have. Good officers will welcome anything that does this.

Time and again, we have had excellent reports which identify the issues and make recommendations to stop them happening again. Most of the recommendations are accepted, but they are seldom, if ever, implemented. Can the Minister explain what the Government propose to do to ensure a full and speedy implementation of the recommendations in this report? Crucially, can he also say what the consequences will be for those forces that fail to comply?

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

I thank both noble Baronesses for their comments. The first thing to say, which I said earlier, is that my thoughts are with the family and friends of Sarah Everard.

The second thing, highlighted by the noble Baroness, Lady Thornton, and which it was remiss of me to neglect to say earlier, is that we owe it to all the decent police officers out there—there are very many, who I would like to thank—to get this right. Finally, I place on record my thanks to Lady Elish, who has delivered a very efficient, speedy report. This is obviously only part 1. I note that part 2 is considering cultural issues, which include misogyny and predatory behaviour. There will be much more to say on that subject, which is not to say that we should not act speedily and efficiently now—and we are. I will explain how.

The vetting process has come in for a considerable amount of criticism, with some justification. The noble Baroness, Lady Thornton, asked why the Government are not legislating to put vetting standards on a statutory footing. The report did not specifically recommend that the Government legislate on vetting standards. As I have just said, part 2 will look in depth at vetting and recruitment, among other cultural issues in policing. We will consider any findings from part 2 in due course. However, we expect policing to examine the Angiolini findings from part 1 in detail, and for them to be addressed.

To ensure that forces are adhering to the existing standards, as set out by the College of Policing, the college will establish a process of national accreditation, setting out the high standards that policing must meet, with the aim of increasing confidence in policing. We are introducing regulations on vetting, which will make it easier for forces to remove those who cannot hold the minimum level of clearance.

As Lady Elish says in her report, it is not possible to

“make any conclusive finding that earlier interventions would have prevented the horrific crimes”

that the report responded to. However, I do not think that Couzens would have been able to remain a police officer if he was serving today—I think it is important to state that for the record. Vetting has been significantly tightened, and tolerances are lower. Forces now do a full re-vet on transfer. Lady Elish highlighted that that is clear in the new vetting code. There is also a data wash process. We are funding policing to develop automated screening, so that records added to the police national database, such as the indecent allegations made against Couzens in 2015, will be quickly picked up by the employing force.

In January 2023, the then Home Secretary asked HMICFRS to carry out a rapid review in response to the November 2022 inspectorate report into vetting. That also looked at what forces are doing to identify and deal with misogynistic behaviour. The inspectorate identified good process in certain areas, and in January this year, the NPCC provided evidence on the implementation of relevant recommendations across forces to the inspectorate. We have also asked the College of Policing to strengthen the statutory code of practice, which I have mentioned. That code was published in July 2023. I referred earlier to the authorised professional practice guidance which is available for public consultation. Finally, in January 2024, the Home Office agreed to provide an additional £500,000 to policing to develop a continuous integrity screening system for the workforce, building on the data wash exercise.

Recommendation 6 is for the NPCC, and I hope it will implement it as quickly as possible—indeed, that goes for all of the recommendations. We discussed some of them earlier, and they all make perfect sense to me. I hope they make perfect sense to others, as well.

The noble Baroness, Lady Thornton, asked about indecent exposure and whether the police are taking such offences seriously enough. In accordance with the strategic policing requirement, we expect that all sexual offending, including for cases where there is no contact, is taken seriously, because we want victims to have the confidence to report these offences. We need them to know that they will get the support that they need, and that everything will be done to bring the offenders to justice.

As noble Lords will be aware, we have added violence against women and girls to the revised strategic policing requirement, which means that crimes that disproportionately impact women and girls, such as indecent exposure, are set out as a national threat for forces to respond to, alongside other threats such as terrorism, serious and organised crime, and child sexual abuse. The strategic policing requirement is set by the Home Secretary and provides clear direction to policing. It highlights where police forces need to work together, using their local and regional capabilities. This requirement covers all forms of violence against women and girls. We continue to work closely with the National Police Chiefs’ Council’s violence against women and girls task force to drive improvements in the policing response. It will soon publish an updated national framework on how policing needs to prepare, prevent, pursue and protect to robustly improve policing’s response to these crimes.

The report found that what might be considered “lower-level sexual offending”, such as Couzens sending unwarranted pictures of himself, could lead to more serious sexual assault. Obviously, as I have said, we regard that any kind of sexually motivated crime is abhorrent and should be treated very seriously. Women need to be confident in calling the police and reporting crimes, and to trust that they will be taken seriously when they do. As I have said, in tandem with policing partners, we will be considering Lady Elish’s recommendations very carefully and will respond fully after a review of all of the content. I am afraid that I cannot give a timetable as to recommendation 4, but, as I said earlier today, we will be responding in full very soon.

In terms of women joining the police, I looked up the statistics after the noble Baroness, Lady Doocey, asked me about it earlier, and they are not as bad as I might have inferred. The 20,000 officer uplift programme provided a once in a generation opportunity to support forces. The police force is now more diverse than ever, with 53,080 women police officers and 12,086 ethnic minority police officers; this was as of 31 March 2023, so those numbers will have changed. Females accounted for 35.5% of officers—the highest number and proportion in post since comparable records began. Between April 2020 and March 2023, 43.2% of new police officer recruits in England and Wales were female—a notable increase on levels in previous years. I will not go into more detail, but it is an encouraging picture and a good start when it comes to the cultural change that we have been talking about at some length.

The noble Baroness, Lady Doocey, also asked a good question which I was unable to answer about how officers and police staff should be encouraged to call out wrongdoing when they see it. I will go into a bit more detail about this, though I suspect it is not as much as the noble Baroness would like. Police officers have a statutory duty to report wrongdoing by their colleagues when they see it, and not doing so constitutes a breach of their standards of professional behaviour. The noble Baroness referred to the Criminal Justice Bill; a duty of candour is included in that, which will help this progress significantly.

There are a number of other routes, both internal and external, through which police officers and staff can raise concerns. External routes include staff associations, trade unions, the office of the relevant PCC if the matter concerns the chief constable, Crimestoppers and the Independent Office for Police Conduct. A police officer can report wrongdoing directly to the professional standards department within their force. Most police forces in England and Wales have reporting phone lines, many with protections for anonymity. A reporting line run by the IOPC enables officers and staff to report concerns that a criminal offence has been committed or where there is evidence of conduct that would justify disciplinary proceedings. I appreciate that this does not fully answer the question about others who might report domestic abuse, but I will take those comments back and find out what can be done about it.

I appreciate that I am running over time. With the indulgence of the House, I will quickly finish by talking about recommendation 5, which is what the Government have done or should be doing to try to change societal attitudes towards women and girls. It is important to highlight the Government’s Enough programme, which is designed to deliver a generational shift in the attitudes and behaviours underpinning abuse. The campaign has a continued focus on encouraging bystanders to challenge safely any abuse they may witness and to trigger reflection among perpetrators and their peers. Evaluation of Enough has shown that it is successfully reaching target audiences, driving behavioural change and encouraging bystanders to intervene when they see abuse. This has been helped by the creation of a STOP mnemonic which is proving highly effective.

I will finish there for now, though I am sure there is more to be said on this subject. Recommendation 5 makes considerable sense. I will certainly be taking the suggestion from the noble Baroness back to the Home Office.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, it is important to say in response to the remarks and questions from the noble Lord, Lord Browne, that Lady Elish did not find any evidence of that particular name being applied to Couzens. That was explicit in the report. This is not the same as explaining away the accountability of the officers who were perhaps aware of his behaviour.

As the noble Lord will be aware, in January 2023 we launched a comprehensive review into police dismissals. As a consequence, we are making significant change to the way in which these dismissals are handled. We have made changes to the composition of misconduct panels by replacing legally qualified chairs with chief officers—something which chief officers have asked for—and this will be implemented in May 2024. We have streamlined the performance system to make it more efficient and effective; this is due to be implemented in late summer 2024. A new route to discharge officers who fail to maintain basic clearance is also due to be implemented in late summer. Changes to the misconduct system, including a presumption of dismissal for gross misconduct, a presumption of fast-track hearings for former officers and convictions for indictable offences automatically amounting to gross misconduct are also due to be implemented in the summer of 2024. The dismissals process has clearly been tightened up and will be tightened up further during the course of this year.

I cannot really comment on the pensions issue. I hear what the noble Lord has said, and I will make sure that the Home Office is well aware of his concerns.

[Baroness Hughes of Stretford (Lab)]

My Lords, recommendation 14 says:

“With immediate effect, every police force should commit publicly to being an antisexist, anti-misogynistic, anti-racist organisation in order to address, understand and eradicate sexism, racism and misogyny, contributing to a wider … culture … This includes properly addressing—and taking steps to root out—so-called ‘banter’ that often veils or excuses malign or toxic behaviour in police ranks”.


What concerns me is that this kind of finding has been repeated in more or less every investigation, inquiry and report into police malpractice for decades. Yet here we are again, with this report concluding that police leaders, whose responsibility it is to address those issues, have not taken a stand on them and stamped them out. As my noble friend just pointed out, in many instances the unacceptable behaviour of individuals is in plain sight among their colleagues and has gone unchallenged. My concern is the process by which the detail of the responses, which my noble friend on these Benches and the noble Baroness on the other Benches referred to, will be decided. Given the history of this, I do not feel that it can be left to individual chief constables—or even to police organisations such as the College of Policing, much as I respect them—to come to the conclusions that are necessary. The process needs to be absolutely transparent for the public—as well as other police officers, who have been referred to—to feel confidence in it.

I have some questions for the Minister. First, how would he intend to involve people with lived experience of these kinds of behaviours of the police and organisations that represent women in particular, as well as other people who have been discriminated against? Secondly, I will take up the point that my noble friend raised. The Minister referred to the statutory duty to report wrongdoing. What is wrongdoing? At the moment, it would appear that it does not include the kind of vile behaviours and verbal comments that we have seen in relation to Couzens and elsewhere. If there is a requirement of police officers and staff to report anybody who expresses discriminatory, sexist or misogynistic statements, I would like to see the Government commit to strengthen it. That should definitely be included in the definition of wrongdoing.

[Lord Sharpe of Epsom (Con)]

Is it not lamentable that recommendation 14 had to be written at all in the 21st century? Frankly, it is pathetic that we still have to have this conversation about such behaviour. The noble Baroness is absolutely right that this is about leadership and culture, and the Home Secretary was extraordinarily explicit on that subject, as I referenced earlier. The culture change has to come from the top; leaders are responsible for setting the standards, and we obviously expect them to keep pushing for improvements to be made across policing.

The recommendation is directed at police forces. It is important to remember that there is local accountability via the office of the police and crime commissioner, and that local accountability absolutely should be engaging with all sectors the community—the people who elect them, after all—to do precisely that. However, the Government have invested in the College of Policing’s National Centre for Police Leadership, which has already set out national standards for leadership at every level. That has to be embedded across forces, so that officers at every rank know what is expected of them and what development they need to get there. That also goes back to a question that the noble Baroness, Lady Doocey, asked me about consistency, which I did not answer: she is 100% right that there is a lack of consistency across police forces. Of course, when all ranks are trained nationally, that will introduce the element of consistency that we clearly need.

I completely agree with the noble Baroness, Lady Hughes of Stretford. However, as the recommendation is directed at police forces, I have to maintain the operational independence line, as it is entirely appropriate that police forces should be free from central government control. Nevertheless, there is local control that could certainly exercise the type of oversight that the noble Baroness wants.

[Lord Beith (LD)]

My Lords, the Minister referred to local accountability. Is he satisfied that the various assurances and procedures that he described will apply to the Civil Nuclear Constabulary and other forces that do not have local accountability?

[Lord Sharpe of Epsom (Con)]

The noble Lord raises a good point. The Civil Nuclear Constabulary comes under the atomic energy people—I forget their precise title—and was referenced in Lady Elish’s report. I have not been party to the conversations that are going on there; I imagine that they are ongoing, and I would like to report back in due course, when I can. Obviously, I cannot say more at the moment.

[Baroness Goudie (Lab)]

Is it not right that when police officers commit such offences their pensions should also be suspended immediately as part of the punishment?

[Lord Sharpe of Epsom (Con)]

I cannot say that it is right across the board; I do not know. It would obviously have to be decided on a case-by-case basis. The way that we have changed the dismissals process will, I hope, give that decision-making power to the right people and make the dismissals process much easier for them to navigate. As I said, it would be foolish of me to say a blanket yes or no; it depends on the case.

Investigatory Powers Act 2016 (Remedial) Order 2023

Lord Sharpe of Epsom Excerpts

Tuesday 5th March 2024 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Investigatory Powers Act 2016 (Remedial) Order 2023.

Relevant document: 1st Report from the Joint Committee on Human Rights

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

My Lords, this order was first laid before Parliament for consideration on 20 March 2023. It was laid again on 18 October 2023, and sat for 60 days. It was debated in the other place on 23 January 2024. As noble Lords will be aware, it is a top priority for the Government to maintain our national security and keep the public safe. The Investigatory Powers Act 2016 provides robust privacy safeguards in relation to investigatory powers.

The United Kingdom’s investigatory powers regime is world-leading and provides the international standard on transparency, privacy, redress and oversight to accompany the exercise of these critical powers. This House recently considered the Investigatory Powers (Amendment) Bill, on which noble Lords provided expert scrutiny. I am hopeful that today’s debate will be approached in the same spirit.

This instrument will make necessary and important amendments to the IPA following the May 2021 judgment from the Grand Chamber of the European Court of Human Rights in the case of Big Brother Watch and others v the United Kingdom, which I will refer to as BBW. The ruling from the Grand Chamber related to the United Kingdom’s bulk interception regime under the legislation which preceded the IPA—the Regulation of Investigatory Powers Act 2000. The Grand Chamber found that certain aspects of that regime were not compliant with Article 8 of the European Convention on Human Rights, on respect for private and family life, and Article 10, on freedom of expression. While most of the incompatibilities identified by the Grand Chamber were addressed through the introduction of the IPA, there was one outstanding issue which requires an amendment to the IPA. This relates to journalistic safeguards, which I will come to later.

I will first briefly explain how the bulk interception regime operates, so that it is clear how these additional safeguards will be applied. The main purpose of a bulk interception warrant is to acquire overseas-related communications. That material is then retained for the minimum amount of time necessary for the authorised purposes. Criteria are used to search through that material to find material which is useful in support of operational purposes. Useful material is then retained for the minimum amount of time necessary for the authorised purposes.

Section 154 of the IPA covers the journalistic safeguards for bulk interception. Presently, it requires only that the Investigatory Powers Commissioner be informed if material thought to contain confidential journalistic material or sources of journalistic material is retained, following examination, for a purpose other than its destruction. There are additional safeguards in the interception code of practice. The code requires that the relevant intelligence agency seek the agreement of a senior official within a warrant-granting department before the agency may select material for examination, in order to identify or confirm a source of journalistic information.

The purpose of this remedial order is to amend the IPA to strengthen the existing journalistic safeguards for bulk interception under Section 154, which is not possible through the delegated powers provided for within the Act. It does this by requiring that approval from the Investigatory Powers Commissioner is obtained before any criteria are used where the purpose is to select material for examination that is confidential journalistic material or a source of journalistic material, or where it would be highly likely to do so. The retention of confidential journalistic material or sources of journalistic material must also be authorised by the Investigatory Powers Commissioner. There is also an urgency provision, which I will come on to later. It is necessary that the Government introduce this reform to ensure that our intelligence agencies can maintain their ability to carry out bulk interception in line with the convention and the Human Rights Act 1998.

Bulk interception is an important operational tool which is used by intelligence agencies to identify threats to the national security of the United Kingdom—it was recognised by the Grand Chamber as such—as well as in tackling serious and organised crime and maintaining the United Kingdom’s economic well-being. The Investigatory Powers Commissioner already provides oversight of the acquisition, examination and retention of confidential journalistic material and sources of journalistic material obtained under bulk interception. Legislative change is needed so that these safeguards are expressly set out within the legislation. Failure to amend the IPA would mean that the UK’s bulk interception regime would continue to be in breach of Article 10 of the convention.

This remedial order introduces amendments to Section 154, the creation of a new Section 154A and a minor consequential amendment to Section 229(8). The amendment to Section 154 will introduce enhanced safeguards relating to the criteria used to select material for examination that will identify confidential journalistic material or identify or confirm sources of journalistic material derived from material acquired through bulk interception. The permission of the Investigatory Powers Commissioner will be required before such material can be purposefully selected for examination or knowingly retained for a purpose other than destruction.

Permission from the commissioner is also required before such material may be retained. The commissioner will make that decision on the basis of whether it is in the public interest to retain the material. The commissioner may impose conditions on the retention of the material. The creation of the new Section 154A introduces an urgency process for dealing with requests for authorisations out of hours. These authorisations will be subject to subsequent judicial approval and any search activity must cease if approval is refused, so urgent applications will still be subject to rigorous independent scrutiny. The judicial commissioner will make their decision on the basis of whether it is in the public interest to approve the use of the search criteria.

The amendment to Section 229(8) is a consequential amendment which includes reference to the new functions of the Investigatory Powers Commissioner in Sections 154 and 154A so that they are treated consistently within the IPA. Sections 229(6) and (7) require judicial commissioners to not act in a way that is contrary to the public interest, national security, the prevention or detection of serious crime or the economic well-being of the UK. Section 229(8) then disapplies that requirement when the judicial commissioner is exercising various functions such as considering whether to approve the authorisation of a bulk interception warrant. Subsection (8) is amended by this instrument to include decisions by the judicial commissioner under new Sections 154 and 154A. This is consistent with similar judicial commissioner functions in other parts of the IPA and ensures that the judicial commissioners can exercise their functions properly.

This remedial Order will ensure that the United Kingdom fulfils its obligations under Article 10 of the convention by making the necessary changes to the bulk interception regime under the IPA in order to be compliant with the findings of the Grand Chamber in BBW. These changes will further strengthen the world-leading safeguards within the IPA, which is a crucial tool in the ongoing effort to protect the United Kingdom and its citizens. I therefore commend the draft Order to the Committee.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his helpful introduction.

This SI concerns the selection for examination and retention of confidential journalistic material which has been collected under a bulk interception warrant. Big Brother Watch brought a challenge to the Regulation of Investigatory Powers Act 2000, the predecessor of IPA, and the courts found several incompatibilities with the ECHR. Most of those incompatibilities were resolved by the introduction of the IPA in 2016. One issue remained—where an intelligence agency seeks to select confidential journalistic material for examination obtained under a bulk interception warrant or identify sources of journalistic material, the selection criteria used should be subject to prior independent authorisation. Where they are found during the examination of bulk data, their retention must be independently authorised.

In its report on the draft version of this instrument, the JCHR made three recommendations. Two have been accepted by the Government and integrated in this SI. However, the Government have not fully accepted the third recommendation, which was that security agencies engage with the Investigatory Powers Commissioner so that they can review journalistic material which had been retained before this SI is implemented. The Government responded that notification of the IPC is already required for an application for the retention of confidential journalistic material and that a judicial commissioner also must consider the application. Additionally, the IPC audits statements submitted for retention applications. However, if the Government accept that there is a need to change the law, surely they accept that there is a need to create an additional review in cases that will not be captured by the new regulations?

I have some questions which may be helpful for those who read these proceedings. Can the Minister explain why these changes have not been brought about as part of the Investigatory Powers (Amendment) Bill, given that it is still going through Parliament? New Sections 195 and 195A were inserted into the Investigatory Powers Act on Report in this House. They create additional safeguards for journalistic material for bulk equipment interference. Why is this being introduced separately? Can the Government provide more details on why they have not fully accepted the third recommendation of the JCHR?

In Article 2 of the SI before us, the Government talk about

“Additional safeguards for confidential journalistic material etc”,


and state that the two bodies that can investigate or seek approval are the Investigatory Powers Commissioner or a senior official. The Minister knows that I will ask who the senior official is. How senior does the senior official have to be? In what circumstances would you go not to the IPC for approval but to the senior official? I know the Minister tried—I expect that he thought that people would ask what “urgent” means—but can he say a little more about urgency, even though he included some of that in his remarks?

Does the senior official have to report every decision to the IPC, as outlined in the substituted Section 154A? Does the senior official have to inform the IPC within days or weeks of any decision that they have made? What happens if the IPC does not approve of the decision made by the senior official, given that, presumably, in the interim the Security Service will have acted as though it had permission? I hope that is clear: presumably a senior official can give permission, then for a few days the Security Service can operate as though it had permission, then the IPC turns around and says, “I don’t think that was the right decision and you do not have permission”. How does it function in the interim, if that is clear? You have a gap between the senior official giving permission and the IPC turning it down, which may be a few days. Does the Minister have anything to say about that?

Does the IPC or the senior official have to record their reasons for believing that the public interest in obtaining the information outweighs the public interest in maintaining confidentiality? In other words, do they have to be transparent about their reasons for coming to their conclusion? Similarly, under new subsections (6), (7) and (8), does the IPC or the senior official have to record the reason why the public interest in retaining the information outweighs the public interest in destroying the information that has been obtained? Again, it is the test about public interest and the conflict between confidentiality and openness and transparency. I wonder whether the Minister has anything to say about that.

However, I understand the need for the SI. I think some clarity around some of those questions would be helpful for those who read our deliberations but, with that, we support the SI.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for his participation and support in the debate today. As I set out earlier, the changes that we are seeking to make to the Investigatory Powers Act will bring the bulk interception regime in line with the requirements of the European Court of Human Right’s Grand Chamber judgment in the case of Big Brother Watch. As I set out, it will ensure that the UK meets its obligations under Article 10 of the convention concerning confidential journalistic material and sources of journalistic material. Prior independent authorisation will be required where the purpose of the use of criteria to select material for examination is to identify confidential journalistic material or to identify or confirm a source of journalistic material. Prior independent authorisation will also be required for the retention of such material for purposes other than its destruction.

The noble Lord asked why this amendment was not taken forward as part of the Investigatory Powers (Amendment) Bill. That Bill was announced in the King’s Speech on 8 November 2023 and was introduced into the House of Lords on the same day. The Home Office was not able to pre-empt the contents of the King’s Speech and there was no guarantee that the Bill would be brought forward in the fourth Session. The judgment in the BBW case was handed down in May 2021 and, as a considerable time has passed and with no guarantee of a suitable legislative vehicle, the Home Office felt it was necessary to remedy the incompatibility as soon as possible. A remedial order was therefore the most appropriate course of action; essentially, it was timing.

--- Later in debate ---

[Lord Coaker (Lab)]

I know it sounds like dancing on the head of a pin, but what “senior” means is quite important, so I ask the Minister to clarify that.

[Lord Sharpe of Epsom (Con)]

I take the point. I absolutely will clarify it, if possible.

I would love to read the Committee my last answer, but I cannot read the writing, so I am sorry, and I apologise to whoever wrote it. Whatever it says, I will write to the noble Lord—or, rather, type—when I have deciphered it. I am very grateful for his contribution in this debate. As I set out, the changes we are seeking to make will ensure that the UK’s bulk interception regime meets its obligations under Article 10 of the convention and strengthens existing safeguards for journalists. I therefore commend this order to the Committee.

Motion agreed.

Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2024

Lord Sharpe of Epsom Excerpts

Tuesday 5th March 2024 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2024.

Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, this instrument, which was laid before the House on 31 January 2024, would amend paragraph 4 of Schedule 2 to the Data Protection Act 2018, more commonly known as the immigration exemption. The Government are amending these provisions following the Court of Appeal judgment on 11 December 2023, which found the immigration exemption incompatible with provisions in the UK GDPR. The court suspended the effect of the judgment until 11 March 2024 to allow the Government time to make the necessary amendments.

I will briefly outline what the immigration exemption does and the changes being made by these regulations. Parliament included the immigration exemption in the Data Protection Act 2018. It provides a legal basis to derogate from certain data subject rights where their exercise is likely to prejudice effective immigration control. For example, a data subject has the right to request and receive details of what personal data is held about them and how it is being processed. Under the provisions of the immigration exemption, the Government may limit the information provided in response to that request if, for example, the provision of that information would tip off the data subject that they were about to be subject to immigration enforcement. The immigration exemption is therefore an important provision in the DPA 2018 that allows the Government to protect the functioning of the immigration system. This was noted specifically by the Court of Appeal in its judgment.

The Court of Appeal’s judgment noted two technical deficiencies in the current exemption. First, the safeguards to be applied to the immigration exemption needed to be in the legislation itself; this is being amended by the regulations’ new paragraph 4A, which inserts the safe- guards on the use of the immigration exemption previously contained in the immigration exemption policy document into the legislation.

The court also determined that the risks to rights and freedoms of individuals were not sufficiently set out in the legislation. This is being remedied by new paragraph 4A(3), which specifically sets out the rights and vulnerabilities that should be taken into account when exercising the exemption. By including these explicitly in the legislation, we are providing increased clarity on the safeguards that are already applied when exercising the provisions of the exemption.

The Government are also choosing explicitly to include provisions as to the balancing exercise that must be undertaken when determining whether the exercise of data rights is likely to prejudice effective immigration control and, if it is necessary and proportionate, to restrict such rights as a result. The draft regulations were subject to consultation with the parties to the judicial review proceedings as well as the Information Commissioner’s Office. The ICO issued a public response to the consultation confirming that it was content with the regulations.

The Government have acted to meet the requirements of the Court of Appeal’s judgment while continuing to ensure that there are necessary safeguards in the legislation to protect effective immigration control. I commend the regulations to the Committee.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for that explanation. I have to say that my recollection is that the issue is much wider than the exemption and ensuring that there is no tip-off to somebody who is about to be visited by immigration enforcement. Let me give an example that was borne out after the Act was passed: solicitors acting for data subjects were unable, as we had anticipated, to find out what the Home Office thought it knew—I put it that way deliberately —about their clients.

I have some general points to make; I will do so fairly quickly. It would be optimistic to think that the Home Office had taken from this saga that objections and criticisms—in the form of amendments, obviously—can be helpful because we could have avoided a lot of effort in rectification. My noble friend Lord Clement-Jones will go into some of the history; I must admit, I do not recall much detail except for being teased frequently by the noble Baroness, Lady Williams, when she was the Home Office Minister, because I brought up our objection to the immigration exemption so often.

I feel strongly that it should not have to be for non-governmental organisations that are no doubt strapped for cash to do so much in order to get things right. I appreciate that that is part of our democracy; I do not object at all to the fact that they can do so, of course, but they should not have to. An application, an appeal, another judicial review, another appeal—at what cost to those organisations and the taxpayer! I emphasise that there is an exclamation mark, not a question mark, at the end of that sentence.

This saga is one of those episodes that vindicates the role of the courts, often in language that I, for one, relish. We have spent a lot of time in the Chamber recently discussing the role of the courts in our constitution; to give one example of the language, I really liked the understated use of

“over-broad derogations from fundamental rights”.

As the Minister said, the litigants were consulted before the publication of the SI. The Secondary Legislation Scrutiny Committee reports that it made three points, of which one, on oversight, was rejected by the Home Office and one was regarded by the Home Office as not necessary. Can the Minister tell the Committee what these were and why they were not pursued?

On the detail of the instrument, I note that it will be a matter for the Secretary of State to balance the risks to the individual and the risks to the state. I happen to think that it is in the public interest to apply exemptions with a very light touch, but of course it is no secret that the Liberal Democrats have problems with the Home Office’s immigration policy, and I fear that the reputational ship is well on its way. Clearly, there is an imbalance of power. That is inevitable, but it is not easy for the individual data subject to exercise his rights, and we should be aware of that.

Can the Minister also tell us what the Home Office will do to ensure that there will be transparency of decisions so that it can appropriately be held to account? Mechanisms must be written into the procedures. New paragraph 4B of Schedule 2 provides for a record of decisions and reasons. How will that be published and what will happen to it?

Will the Minister also comment on the capacity of immigration enforcement—and whoever else needs to—to look at prospective decisions on a case-by-case basis for each disapplication? I recognise that that will not necessarily be a straightforward and easy exercise, but it certainly requires a great deal more than, “It’s okay; it’s immigration, so we can just rely on the exemption”. Case-by-case decision-making is very important.

Finally, I note that the Explanatory Memorandum tells us that there is no full impact assessment because the instrument

“does not substantively alter the safeguards and considerations for applying the Immigration Exemption”.

I have to say that I thought that was the point.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I thank all noble Lords for their contributions. I shall start with justification and the public interest, which is obviously at the core of this. Parliament included the immigration exemption as part of the Data Protection Act 2018, as has been noted, for the legitimate purpose of effective immigration control. The Court of Appeal declared in its judgment,

“that there can be no dispute that the Immigration Exemption has a legitimate aim and indeed seeks to advance important public interests.”

We agree with the court: the immigration exemption is vital to prevent the release of information which would otherwise prejudice effective immigration control. I particularly welcome its endorsement by the noble Lord, Lord Coaker.

I want to be clear with noble Lords what those important public interests are. Through targeted use of the immigration exemption, we are able to maintain our capability at the border to prevent criminals and those who seek to cause us harm threatening our country as well as to support other agencies and international partners. We are able to frustrate and prevent sham marriages and protect the integrity of ongoing immigration removal and enforcement action and forgery investigations. The immigration exemption is also used to protect people being forced into a marriage and to prevent individuals absconding when there is a planned immigration visit. The central aims are to protect our citizens, ensure the integrity of the border and prevent abuses of the immigration system.

The noble Lord, Lord Coaker, asked about the balancing test. I will come on to the use of the exemption in practice, but it is always clear that the balancing test has to be carried out, and will now be explicitly in the Act. In practice, I can reassure noble Lords that the exemption is employed at around 70% of subject access requests relating to immigration and the Border Force. The amount of data that is restricted by the use of the exemption is, in the vast majority of cases, very little. It is not simply the case that where one piece of information is found to be prejudicial to immigration control, the Home Office does not respond to a request. The piece of information may be redacted as a result, but otherwise a full response will be given. It must be both necessary and proportionate to use the exemption, and this must be balanced against the risk to an individual’s rights. These existing standards will now be set out explicitly in the legislation.

I acknowledge that there was a difference of opinion in the House over whether the previous regulations amending the immigration exemption in 2022 met the requirements of Article 23 of the UK GDPR. The courts have agreed with the Government on a wide range of issues in the hearing. They declared that in two areas in particular the amended exemption did not, and the Government respect that ruling. We are confident that these regulations meet the requirements of the judgment in full, and we are supported by the ICO in that opinion.

The noble Baroness, Lady Hamwee, asked whether we consulted the claimants. They were consulted as part of the development of the provisions, and they suggested some additions to the provisions. We accepted suggestions to provide detail on applicable storage periods in the Explanatory Memorandum. We did not accept a suggestion to alter the existing model of ICO oversight of the exemption. The existing model of ICO oversight of the Home Office is robust, and data subjects are able to challenge use of the exemption. I welcome the noble Lord, Lord Clement-Jones, acknowledging the ICO’s part in this.

We also rejected the suggestion to specify in the legislation the wording that must be provided to data subjects when informing them that the provisions of the exemption have been applied. The provisions of the exemption are already accessible to data subjects and adding that detail to primary legislation would be unhelpful.

As regards how the ICO assesses the Government’s use of the immigration exemption, it already assesses the Home Office as part of its statutory role as regulator. Those assessments are published as data protection audit reports, setting out the findings and any recommendations. Should a data subject disagree with the decision to apply the immigration exemption in their case, the usual redress mechanisms to contact the ICO are available.

The noble Lord, Lord Coaker, asked about the application of these rules to children. The immigration exemption applies to all immigration data, but there are special considerations in relation to minors, which are set out in the ICO’s guidance.

The subject of an impact assessment also came up, which relates to oversight and transparency more generally. It is important that these regulations retain the presumption that a data subject should be informed that the immigration exemption has been used—for example, to redact information provided to them in response to a subject access request. That allows the data subject to challenge that decision, should they believe that the application of the exemption is not justified. The ICO has appropriate powers to investigate whether the immigration exemption has been applied appropriately in a specific case. This is in addition to its overall assessment of the Home Office’s data protection practices, which include the use of the immigration exemption more broadly.

An impact assessment was carried out as part of the inclusion of the provision for the immigration exemption in the Data Protection Act 2018. A further supplementary impact assessment was conducted as part of the amendment to the exemption by the SI in 2022. This is noted in the Explanatory Memorandum. Given that there is no substantive change to the safeguards and scope of the exemption, we have not completed a new IA for this instrument.

[Lord Clement-Jones (LD)]

I am sorry; the Minister seems to be moving on from the impact issue. Clearly there was a period when the old regulation, which is now being superseded, was in operation and individuals were impacted. In a sense, an inappropriate exemption was used. What data does the Minister have about those individuals and the impact on them? What redress do they have? The Minister skated over the ICO’s redress mechanism. Is there no direct mechanism to the Home Office?

[Lord Sharpe of Epsom (Con)]

I did not skate over it at all; I referred to it explicitly and am happy to do so again, if it would help. I do not know if there is any specific redress to the Home Office. I would imagine not, given that it is explicit that data subjects should go via the ICO. If I am wrong on that, I will clarify.

I have no particular data on the subjects who may have been covered by this before the court’s decision, so I will have to find out, come back and write to the noble Lord if there is anything useful to add.

The Home Office already has relevant guidance and training in place for those exercising the immigration exemption provisions, but we are undertaking a review of those materials to ensure that they align with these regulations. That will be completed in time for the 11 March deadline to amend the current exemption. The instrument is making existing safeguards explicit in the legislation, which are already captured in the existing training and guidance, so we do not expect substantive changes to be needed.

The costs of the court case are not yet settled, but I am happy to commit to write once they have been.

There are a couple more bits to say. How often is the exemption used? The honest answer is not very often. I think I referred to this earlier, so it is probably redundant to say it again but, for the record, in the year ending October 2023, the immigration exemption was applied in around 70% of subject access requests received in relation to immigration citizenship and the Border Force. Of those, the vast majority had only a small amount of data redacted under the use of the exemption. So I suppose the answer to the noble Lord’s question is that it will have a very minimal impact on people, but I commit to clarify that.

Finally, the noble Lord, Lord Clement-Jones, asked about the relationship between the DPA and retained EU law. The official answer is that the focus of this SI is the immigration exemption and that discussions of the rules and the implications for the DPA 2018 are probably best debated as part of the DPDI Bill, which will, I believe, come to the House on 20 March. The unofficial answer is that I cannot comment on the noble Lord’s disposition because I did not really understand it and I do not have much knowledge of this subject. However, I note that we have left the EU: the people voted. Our rules can now be amended to our own circumstances, and of course, that applies across the entire legal suite. It was a pretty clear vote by the people of this country; I know that that does not suit the Liberal Democrats.

In closing, I hope that I have satisfactorily answered the points that were made and that noble Lords understand the necessity—

[Baroness Hamwee (LD)]

Before the Minister ends, can I go back to the record the Home Secretary is to keep under the schedule’s new paragraph 4B? It provides that, when he makes a decision, he must keep a record and the reasons for it. In essence, my question is about whether this will be public to any extent or whether transparency will be confined to the data subject. Also, I do not expect the Minister to go into any detail on this now or to comment, because he gave the figure, but 30% seems very high to me. The Immigration Law Practitioners’ Association has commented in the past—not the immediate past but, then again, I have not asked it—about the difficulty data subjects and, in particular, their legal representatives face because they simply do not know what the Home Office thinks it knows about their clients, which is an important starting point for any legal representation and any claim. I make this point because it really needs to be made.

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for making her point. As regards what is required of the Home Secretary, for obvious reasons, it will not be public, although I agree that transparency is important when it comes to culture; we talked about that earlier in the context of the police, where similar rules apply. It will, however, be available to the ICO and subject to the usual transparency rules at the ICO’s request.

As I have already noted, we understand the necessity of these changes in order to ensure compliance with the Court of Appeal’s judgment and to increase clarity around the use of the immigration exemption. With that, I commend the draft regulations to the Committee.

Motion agreed.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Sharpe of Epsom Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I wonder whether the Minister would care to comment on whether he agrees with the analysis from the noble Lord, Lord Lilley, of the status of this Bill we are debating. The noble Lord said it was inconceivable that there would be any refoulement and that it is okay to proceed without the various recommendations in place. In the longer term, they would need to be in place—because it was in the longer term, I think, that he was suggesting that there might be justification in the suspicions that have been raised. I think that was the point the noble Lord was making.

I thank the noble and learned Lord, Lord Hope, for tabling these amendments and for his constructive communication before doing so. In Committee there was clear interest in developing a mechanism to ensure that the terms of the treaty are and continue to be adhered to. I hope the House will see that there is value in how he has integrated these ideas into these amendments. Amendments 4 and 7 together provide a clear framework for ensuring the ongoing safety of Rwanda, rooted in the terms of the treaty the Government have negotiated. I will not say any more, because the noble and learned Lord set out the terms of his amendments very clearly.

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

My Lords, I thank all noble Lords for their contributions. The partnership between the UK and Rwanda is rooted in a shared commitment to develop new ways of managing flows of irregular migration by promoting durable solutions, thereby breaking the existing incentives that result in people embarking on perilous journeys to the UK. We saw again only last week how perilous those journeys are, as my noble friend Lord Hodgson noted. The UK and Rwanda share a vision on the need for the global community to provide better international protection for asylum seekers and refugees, emphasising the importance of effective and functioning systems and safeguards that provide protection to those in most need.

Noble Lords will know that Rwanda has a long history of supporting and integrating asylum seekers and refugees in the region, for example through its work with the United Nations High Commissioner for Refugees to host the emergency transit mechanism. It has also been internationally recognised for its general safety and stability, strong governance, low corruption and gender equality. My noble friend Lord Hodgson noted this, and my noble friend Lady Meyer gave her very welcome perspective on her recent visit. I say gently to the noble Lord, Lord German, that I heard a great deal in her comments about structures and systems.

As the noble and learned Lord, Lord Hope of Craighead, has explained, these amendments seek to allow Parliament to deem Rwanda to be safe only so long as the arrangements provided for in the Rwanda treaty have been fully implemented and are being adhered to in practice. The UK Government and the Government of Rwanda have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system. In advance of agreeing the treaty, we worked with the Government of Rwanda to respond to the findings of the courts by evidencing Rwanda’s existing asylum procedures and practice in standard operating procedures relating to and reflecting the current refugee status determination and appeals process.

Amendment 7 imposes a duty on the Secretary of State to obtain a statement from the independent monitoring committee confirming that the objectives specified in Article 2 of the treaty have been secured. This is unnecessary; the Government will ratify the treaty in the UK only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty. We have assurances from the Government of Rwanda that the implementation of all measures in the treaty will be expedited, and we continue to work with the Rwandans on this. The legislation required for Rwanda to ratify the treaty passed the lower house of the Rwandan Parliament on 28 February and it will now go to the upper house, as my noble friend Lord Murray noted in the debate on the previous group. Once ratified, the treaty will become law in Rwanda. It follows that the Government of Rwanda would then be required to give effect to the terms of the treaty in accordance with its domestic law as well as international law.

The Bill’s provisions come into force when the treaty enters into force. The treaty enters into force when the parties have completed their internal procedures. These amendments therefore confuse the process for implementing the treaty with what is required for the Bill’s provisions to come into force. The Bill builds on the treaty between the UK and the Government of Rwanda signed on 5 December 2023. It reflects the strength of the Government of Rwanda’s protections and commitments given in the treaty to people transferred to Rwanda in accordance with the treaty. Alongside the evidence of changes in Rwanda since summer 2022, published this January, the treaty will enable Parliament to conclude that Rwanda is safe and the Bill provides Parliament with the opportunity to do so. I say to my noble friend Lord Deben that that is the truth.

[Lord Deben (Con)]

I accept everything the Minister says, but it is all about what will happen in future. He is asking me to accept that what will happen in future has happened now. That is the only argument. He would not ask me to do that in any other circumstances. Can he explain why I have to do it now?

[Lord Sharpe of Epsom (Con)]

My Lords, I have been extraordinarily clear on this subject. As I said, the Bill provisions come into force when the treaty enters into force. The treaty enters into force when the parties have completed their internal procedures, and these amendments therefore confuse the process for implementing the treaty with what is required for the Bill provisions to come into force.

[Lord Clarke of Nottingham (Con)]

My noble friend says that it will confuse it; it is actually perfectly straightforward. If everything happens as smoothly as he says it will happen—and I hope it does, because I do not object to the safe country policy that is being pursued if we can find a safe country—the monitoring committee will presumably confirm that it has happened. Why is he resisting it, except to save the Secretary of State having to send a letter asking for the monitoring committee’s principle? Why is this amendment a threat to the Government’s stated policy?

[Lord Sharpe of Epsom (Con)]

I say to my noble friend that I am about to come on to the workings of the monitoring committee in great detail, if he will bear with me.

I turn to the points raised with regard to introducing a duty on the Secretary of State to consult with the monitoring committee every three months during the operation of the treaty. The committee is independent of both the UK and Rwandan Governments. It was always intended to be independent, to ensure that there is a layer of impartial oversight of the operation of the partnership. Maintaining the committee’s independence is an integral aspect of the design of the policy, and, as my noble and learned friend Lord Stewart of Dirleton set out, the treaty enhances the monitoring committee’s role.

The committee will ensure that obligations to the treaty are adhered to in practice and, as set out in Article 15(4)(b), it will report to the joint committee, which is made up of both UK and Rwandan officials. As per Article 15(4)(c) of the treaty, the monitoring committee will make any recommendations it sees fit to the joint committee. Therefore, these amendments are both unnecessary and risk disturbing the independence and impartiality of the monitoring committee.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting the Minister. Could he confirm to the House that the Minister, which I assume means the Secretary of State for Home Affairs, will not seek to bring the Bill—the Act—into force until he is satisfied that all the provisions of the treaty have been implemented and are being properly operated?

[Lord Sharpe of Epsom (Con)]

I think I have already answered that. The Bill provisions come into force when the treaty enters into force, and the treaty enters into force when the parties have completed their internal procedures.

[Lord Falconer of Thoroton (Lab)]

Sorry for interrupting again, but that is not quite an answer to my question. Could the Minister give the House an assurance that the Home Secretary will bring the treaty into force only once he is satisfied that the treaty’s provisions have been implemented and it is operational?

[Lord Sharpe of Epsom (Con)]

My Lords, I disagree. I am afraid that is an answer to this particular question. I think it is. To assure noble Lords further, the joint committee met on 21 February to discuss implementation and readiness for operationalisation and, as set out in the published terms of reference for the joint committee, minutes will be produced after each meeting for agreement by the co-chairs.

The monitoring committee will undertake daily monitoring of the partnership for at least the first three months to ensure rapid identification of and response to any shortcomings. This enhanced phase will ensure that comprehensive monitoring and reporting take place in real time. As I set out in earlier debates, during the period of enhanced monitoring, the monitoring committee will report to the joint committee in accordance with an agreed action plan, to include weekly and bi-weekly reporting as required.

During the enhanced phase, the monitoring committee will place particular emphasis on monitoring asylum procedures, asylum case assessments, and any asylum decisions made in this timeframe. The monitoring committee will ensure that decisions are objective and based on a legally sound foundation in accordance with international laws and convention.

The following minimum levels of assurance have been agreed by the monitoring committee for the enhanced phase: two visits to the UK to see the selection process; observing two boardings and two disembarkations; observing three induction sessions; weekly visits to accommodation and reception centres; monthly visits to health and education facilities; observing education and language training sessions; observing interviews and appeal hearings; reviewing the process and paperwork for all individuals relocated to Rwanda in this phase; monitoring the status of people relocated to Rwanda, captured through the quarterly reporting process and visits to resettlement areas; reviewing a sample of at least 25% of complaints, including all serious incidents; investigating all complaints received directly; and interviewing on a voluntary basis a sample of one in 10 relocated individuals at various stages of the process.

The published terms of reference are accompanied by a detailed monitoring plan—as agreed by the monitoring committee—which was published on 11 January. These documents provide a comprehensive and transparent framework for the operations and procedures of the monitoring committee, starting from the immediate departure period of the first cohort of relocated individuals and including the details of the enhanced initial monitoring phase.

The plan provides an overview of the monitoring committee’s specific activities, monitoring techniques, and the personnel involved. It also outlines reporting procedures—

[Lord Hannay of Chiswick (CB)]

I am most grateful to the Minister, who has given us a great deal of new information about the monitoring committee. But all he has told the House demonstrates that the monitoring committee is extremely well placed to provide the Government the information they need to act as in my noble and learned friend’s amendment. What is holding them back? The fact of the matter is that the monitoring committee has no means of reporting to this Parliament, but the Government do. That is what this amendment suggests is the right thing to do.

[Lord Sharpe of Epsom (Con)]

I hear what the noble Lord says, but I have answered this in considerable detail now.

[Lord Clarke of Nottingham (Con)]

The more detail the Minister gives about the virtues of the monitoring committee, the stronger his argument is in favour of the amendment proposed to this House by the noble and learned Lord, Lord Hope. The briefing he has been given is totally contradictory to the conclusion that he is trying to invite us to reach.

[Lord Sharpe of Epsom (Con)]

I am afraid I disagree again.

[Noble Lords]

Oh!

[Lord Sharpe of Epsom (Con)]

My Lords, as set out in the monitoring plan, the monitoring committee will ensure that there is a daily presence of the support team on the ground through the initial enhanced phase. For the enhanced phase, a minimum of two monitoring committee members will be actively engaged in the monitoring.

Implementation continues at pace, including of the support team for the monitoring committee and the new appeals body. I put on record my thanks to all officials, including those in the Government of Rwanda, for all their hard work in implementing the treaty and delivering the crucial partnership. The partnership is one important component of a much broader bilateral relationship. We co-operate closely with Rwanda on a number of issues, including the Commonwealth, climate change, education, trade, governance, and conflict issues, and delivering a successful and long-standing development partnership.

To conclude, we have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system. These assurances and commitments provide clear evidence of the Government of Rwanda’s ability to fulfil its obligations generally and specifically, to ensure that relocated individuals face no risk of refoulement. I therefore respectfully ask the noble and learned Lord—

[Lord Carlile of Berriew (CB)]

Before the Minister sits down, I return to the question I asked him earlier: will he now tell the House which of the nine provisions highlighted in paragraph 45 of the International Agreements Committee’s report are now completed?

[Lord Sharpe of Epsom (Con)]

My Lords, as has already been discussed, the lower house of the Rwandan Parliament passed its treaty ratification only earlier this week. As I have just tried to explain, implementation continues at pace. I do not yet have the very specific information the noble Lord requires, but, as I have also explained, we will not implement until all the treaty obligations are met.

I therefore respectfully ask the noble and learned Lord to not press his amendment, but, were he to do so, I would have no hesitation in inviting the House to reject it.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to all noble Lords who have taken part in the debate. I do not want to take up time by going over the issues all over again, but I want to pick up two points made by the noble Lord, Lord Hodgson of Astley Abbotts.

First, I think the noble Lord suggested that my amendments were treating Rwanda as a country that is untrustworthy; I absolutely refute that. When I introduced the amendments in Committee, I made it absolutely clear that I do not, for a moment, question the good faith of Rwanda, and I remain in that position. I absolutely understand that both parties to the treaty are treating each other on that basis. I am certainly not, in any way, questioning the good faith or commitment of Rwanda to give effect to the treaty; what I am talking about is implementation.

Secondly, I think the noble Lord said that my amendment would make the Bill unworkable. I simply do not understand that. I cannot understand why relying on the word of the monitoring committee in any way undermines the effectiveness or purpose of the Bill. For those reasons, I wish to test the opinion of the House.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, we very much support Amendments 9 and 12, which the noble Lord, Lord Anderson, has led on. They would allow the presumption that Rwanda is a safe country to be rebutted by credible evidence presented to decision-makers, including courts and tribunals. If he were to test the opinion of the House, we would support him.

I will refer to my Amendment 29, which I hope gives some evidence of the need for the amendments from the noble Lord, Lord Anderson. Amendment 29 would take out Clause 4(2). I tabled it because Clause 4(2) says that

“subsection (1) does not permit a decision-maker”—

however that is defined, whether it is the Secretary of State, a court or a tribunal—

“to consider any matter, claim or complaint to the extent that it relates to the issue of whether the Republic of Rwanda will or may remove or send the person in question to another State in contravention of any of its … obligations”.

In other words, an individual cannot put before the court or a tribunal not that they “may” be refouled but, using the Government’s own words in Clause 4(2), that they “will” be refouled. I could just about understand it if it had “may”, but if an individual cannot even argue that they “will” be then I would find that quite astonishing. Therefore, I suggest that my Amendment 29 highlights why Amendments 9 and 12, in the name of the noble Lord, Lord Anderson, are needed.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for their contributions to this debate. I will turn first to Amendment 39, tabled by the noble Lord, Lord Blunkett. As I set out in Committee, we do not consider it necessary to make this amendment.

Clause 1 sets out the obligations that the Government of Rwanda have committed to under the new treaty. The addition the noble Lord proposes does not reflect the arrangements under the treaty. Enabling persons whose claims are successful in Rwanda to return to the UK would be entirely inconsistent with the terms and objectives of the treaty. Those relocated to Rwanda are not intended to be returned to the UK, except in limited circumstances. Article 9 of the treaty clearly sets out that Rwanda shall process claims for asylum in accordance with the refugee convention and this agreement.

Since the partnership was announced, UK officials have worked closely with the Government of Rwanda to ensure that individuals relocated under the agreement will be safe and that their rights will be protected. Human rights have been a key consideration throughout this work, including the treaty, to confirm the principles for the treatment of all relocated individuals in an internationally binding agreement and strengthened monitoring mechanisms to ensure practical delivery against the obligations. For example, individuals, once relocated, will have freedom of movement. They will not be at any risk of destitution, as they will be accommodated and supported for five years. They will have access to a generous integration package so that they can study, undertake training and work, and access healthcare.

For those who are not registered as refugees, Rwanda shall consider whether the relocated individual has another humanitarian protection need. Where such a humanitarian protection need exists, Rwanda shall provide treatment consistent with that offered to those recognised as refugees and permission to remain in Rwanda. Such persons shall be afforded equivalent rights and treatment to those recognised as refugees and shall be treated in accordance with international and Rwandan laws. For those relocated individuals not recognised as refugees or granted protection, Article 10 of the treaty provides that Rwanda shall regularise their status in the form of a permanent residence permit and provide equivalent treatment as set out in Part 2 of Annex A.

It is the Government of Rwanda, and not the UK Government, who will consider asylum or protection claims and who will grant refugee or protection status to those relocated to Rwanda under the treaty that will underpin the migration and economic development partnership. As is made clear in the agreed terms of the treaty, those relocated will not be returned to the UK except in limited specified circumstances. Obtaining refugee status in Rwanda does not grant that person any rights within the UK, as would be the case for any other person granted refugee status in Rwanda who had not been relocated from the UK. Anyone seeking entry to the UK in the future would have to apply through legal routes, such as the work or family route, with no guarantee of acceptance.

Amendments 9 and 12 tabled by the noble Lord, Lord Anderson, and Amendment 19 tabled by the noble Baroness, Lady Chakrabarti, seek to qualify the requirement for decision-makers, including courts and tribunals, to conclusively treat Rwanda as a safe country, thus allowing individuals to challenge removal decisions on the grounds that Rwanda is not a generally safe country.

The treaty, the Bill and the evidence together demonstrate that Rwanda is safe for relocated individuals and that the Government’s approach is tough but fair and lawful. The Government are clear that we assess Rwanda to be a safe country, and we have published detailed evidence that substantiates this assessment. This is a central feature of the Bill, and many of its other provisions are designed to ensure that Parliament’s conclusion on the safety of Rwanda is accepted by the domestic courts. The conclusive presumption in the Bill that Rwanda is generally a safe country is not, as the noble Lord suggested, a “legal fiction”.

The courts have not concluded that there is a general risk to the safety of relocated individuals in Rwanda. Rather, the Supreme Court’s findings were limited to perceived deficiencies in the Rwandan asylum system and the resulting risk of refoulement should any lack of capacity or expertise lead to cases being wrongly decided. As we have repeatedly set out, the treaty responds to those key findings. The assurances we have since negotiated in our legally binding treaty with Rwanda directly address these findings by making detailed provision for the treatment of relocated individuals in Rwanda, ensuring that they will be offered safety and protection, with no risk of refoulement.

We have been clear that the purpose of this legislation is to stop the boats, and to do that we must create a deterrent that shows that, if you enter the UK illegally, you will not be able to stay. We cannot allow systematic legal challenges to continue to frustrate and delay removals. It is therefore right that the scope for individualised claims remains limited, to prevent the merry-go-round of legal challenges and enable us to remove from the UK individuals who have entered illegally. We cannot allow illegal entrants to be able to thwart their removal when there is a clear process for the consideration of a claim based on a risk of serious and irreversible harm. We cannot allow the kinds of spurious legal challenges we have been seeing for far too long to continue.

It is for this reason that I cannot accept Amendments 23 and 27 tabled by the noble Baroness, Lady Meacher, which seek to lower the threshold for a claim or appeal brought on the grounds that Rwanda is unsafe to succeed. These amendments undermine the core principle of the Bill, which is to limit challenges brought against the safety of Rwanda. The Bill makes it clear that Rwanda is generally safe and that decision-makers, as well as courts and tribunals, must treat it conclusively as such. This reflects the Government’s confidence in the assurances of the treaty and in Rwanda’s commitment and capability to deliver against these obligations. As I have set out, the UK Government and the Government of Rwanda have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system.

Following on from my previous point with regard to relocated individuals in Rwanda being offered safety and protection with no risk of refoulement, I now turn to Amendments 11, 14, 15 and 29 tabled by the noble Lord, Lord Coaker. I consider these amendments to be unnecessary. As I have just stated, yes, the Supreme Court did find deficiencies in the Rwandan asylum system that meant there was a risk that those relocated under the terms of the previous memorandum of understanding with Rwanda could be refouled. However, the UK and Rwanda have since worked closely together to address the court’s conclusions.

As noble Lords are aware, the Supreme Court could consider evidence only up to summer 2022, which was not reflective of the current evidential position. Not only could the court not consider additional work undertaken with the Government of Rwanda to build capacity in the Rwandan asylum system, but it had not had the opportunity to consider the terms agreed under our new legally binding treaty with Rwanda. The treaty makes very clear that no one relocated to Rwanda will be returned to another country, except, in very limited circumstances, back to the UK. This expressly addresses the court’s conclusions by eliminating the risk of refoulement.

As I have said previously, and as I stated in my letter to the noble Lord, Lord Kerr, following the debate on this matter in Committee, the treaty contains, among other provisions, a definitive undertaking from the Government of Rwanda that they will not remove any person relocated under the MEDP, except to the UK, in accordance with Article 11(1).

[Lord Kerr of Kinlochard (CB)]

Can the Minister confirm that the arrangement described in Article 10(3) of the treaty has been devised: that is, the arrangement to ensure that refoulement does not in practice occur? The treaty imposes an obligation on both parties to agree a process. Has it been agreed, and can we see it?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not know the answer to that question. I will find out and come back to the noble Lord on whether it has been agreed and where we are.

We therefore believe that there is no need for this to be considered when making individualised assessments as to the safety of Rwanda.

The treaty also enhances the role of the independent monitoring committee, which we discussed on the previous group. The monitoring committee will provide real-time, comprehensive monitoring of the end-to-end relocation and asylum process, ensuring delivery against the terms of the agreement and in line with both countries’ international obligations. This will prevent the risk of any harm to relocated individuals, including potential refoulement, before it has a chance to occur.

Rwanda is one step closer to ratifying the treaty, as discussed, which has passed through its lower house in Parliament. Once ratified, the treaty will become law in Rwanda. It follows that the Government of Rwanda would be required to give effect to the terms of the treaty in accordance with its domestic law, as well as international law. Those in genuine need of safety and security will be provided with it in Rwanda.

Turning to Amendment 16 tabled by the noble Baroness, Lady Lister of Burtersett, we do not accept that individuals relocated to Rwanda would be at risk of torture or any other form of inhumane or degrading treatment. The Government’s assessment is that Rwanda is a safe country that respects the rule of law. Rwanda is a signatory to the United Nations convention against torture, the convention on refugees and other core UN human rights conventions. It has also signed the treaty with us which guarantees the welfare of all those relocated under the partnership. The enhanced monitoring committee will be in place to robustly monitor adherence to these obligations. Should somebody with a particular vulnerability be relocated to Rwanda, there will be the necessary treatment and specialist support available, with safeguarding processes in place.

Furthermore, Clause 4 preserves the ability of individuals to challenge removal due to their particular individual circumstances if there is compelling evidence that Rwanda is not a safe country for them. That is the appropriate mechanism to ensure that an individual’s circumstances have been considered.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt. What investigations have the Government made of whether that support is available in Rwanda? This is not a criticism of Rwanda but an acceptance of the fact that it is a country that has poor provision, as we heard from the noble Lord, Lord Scriven, and others. On being able to say that it is not safe for an individual, as the Minister’s colleague said in Committee, the Government expect this to be successful very rarely, so that is no safeguard, really.

[Lord Sharpe of Epsom (Con)]

I was about to answer the noble Baroness’s questions, because safeguarding arrangements are set out in detail in the standard operating procedure on identifying and safeguarding vulnerability, which states that, at any stage in the refugee’s status determination and integration process, officials may encounter and should have due regard to the physical and psychological signs that can indicate that a person is vulnerable. The SOP sets out the process for identifying vulnerable persons and, where appropriate, making safeguarding referrals to the relevant protection team.

Screening interviews to identify vulnerability will be conducted by protection officers who have received the relevant training and are equipped to competently handle safeguarding referrals. The protection team may trigger follow-up assessments and/or treatment as appropriate. In addition, protection officers may support an individual to engage in the asylum process and advise relevant officials of any support needs or adjustments to enable the individual to engage with the process. Where appropriate, the protection team may refer vulnerable individuals for external support, which may include medical and/or psycho-social support or support with their accommodation. Where possible, this should be with the informed consent of the individual.

As regards capacity, of course it will be in place. The policy statement sets out at paragraph 135:

“In line with our obligations under the Refugee Convention and to ensure compliance with international human rights standards, each Relocated Individual will have access to quality preventative and curative primary and secondary healthcare services that are at least of the standard available to Rwandan nationals. This is provided through a comprehensive agreement between the Government of Rwanda and medical insurance companies for the duration of 5 years and through MoUs with hospitals in Kigali”.


I also say at this point that it would be in the best mental health interests of those seeking asylum who are victims to seek asylum in the first safe country that they come to. Why would they risk their health and mental health crossing the channel in much more grave circumstances than they need to?

Noble Lords will know that over 135,000 refugees and asylum seekers have already successfully found safety in Rwanda. International organisations including the UNHCR chose Rwanda to host these individuals. We are committed to delivering this partnership. With the treaty and published evidence pack, we are satisfied that Rwanda can be deemed a safe country through this legislation. I would ask the noble Lord to withdraw his amendment.

[Lord Anderson of Ipswich (CB)]

I thank all noble Lords who have participated in this fast-paced debate, and for the generous and constructive contributions that we have heard from all corners of this House. I shall not dwell on them individually, but I will single out the contributions that we heard from the noble Baronesses, Lady Lister and Lady D’Souza, and the noble Lord, Lord Cashman, on the subject of torture. Although my amendments are broader than theirs, theirs serve as a reminder that even evidence of widespread torture would be off limits if Clause 2 were not amended as they and I wish.

I say to the noble Lord, Lord Murray, that I am delighted by what he says he has seen in Rwanda. However, with great respect to him, the points that he makes in no way remove the desirability of ensuring that, should protections not prove to be adequate—including, for example, protections against the risk of refoulement contrary to the terms of an agreement, as we saw when the Rwanda/Israel agreement was in force—the decision-makers and courts should be able to take those matters into account. That is all that these amendments contend for.

I agree with the noble Lord, Lord Horam, that it is operational measures that will make the difference; he must be right about that. Those are the sorts of measures that were identified by the International Agreements Committee in its list of nine or 10, and in Article 10(3) of the treaty. As the noble Lord, Lord Kerr, pointed out, these will be unfinished business even when the treaty is ratified. The purpose of the courts is simply to check that those measures meet the minimum thresholds laid down by law.

The Minister made the point that the concerns expressed by the Supreme Court were limited to specific issues regarding refoulement and suggested that, had they not been resolved already, those issues would be easily resolved in the near future. The Minister asks us to take a good deal on trust. I understand that a letter has been circulated this afternoon; it certainly did not reach me. Whether that includes, for example, full details relating to the Rwanda asylum Bill, which nobody seemed to have seen when we debated this in Committee, and whether it contains full details of the arrangements to ensure non-refoulement, which are referred to in Article 10(3) of the treaty, I cannot say.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, as we come to the end of today’s consideration of the Bill before us, I start with the important point that the noble Lord, Lord Kerr, mentioned. I raised it in debate on the first group of amendments, when I said that the constitutional position is that the Government have the right to get their Bill through, but the House of Lords also has a constitutional position, which is the right for it to expect that its views and the amendments that it passes are considered properly by the Government. Unless I got it wrong, the noble Lord, Lord Kerr, was saying—it is certainly what I think—that our belief is that the Government are simply saying, “We’re not going to change the Bill at all. We don’t mind what the amendments are or what inconsistencies are brought forward, or how illogical what we are saying is. Such is our determination that we are going to drive this through and use our electoral majority to do it”. To that extent, the Government are undermining the constitutional conventions on which our Parliament is based.

I have been lectured, as many of us on this side of and across the House have been, on the Government’s right to get their Bill through. Indeed, the Home Secretary was at it again this morning in a newspaper, warning of the consequences of us not allowing the Bill through. Why would the Government simply ignore what the House of Lords is saying, which appears to be the intention? It may not be the intention of the noble and learned Lord, Lord Stewart, or the noble Lord, Lord Sharpe, but it will be interesting to see what amendments, if any, the Government make in response to what has happened in your Lordships’ House in Committee and, more importantly, in the votes that have taken place today.

I would appreciate us having some understanding of the Government’s view of what is being done here. As the noble Lord, Lord Kerr, mentioned, and as I am sure many other noble Lords feel, we have a right to be heard—and, at times, for our amendments to be acted upon—rather than simply ignored and dismissed as people who do not understand the problem and are simply trying to get in the way of dealing with the boats.

I started with that important point, notwithstanding the fact that some really important points reflecting on the Bill have been made on this group of amendments, as with many other groups. This group of amendments deals with individual claims and exemptions that may be made with respect to the general principle of the law. As somebody who has great respect for the law, although not a lawyer myself, it has always been my understanding that not many good laws do not have exemptions within them. A good law may have a generality of application to the population—the noble and learned Lord, Lord Stewart, will know this better than me, in his current position—but it will have exemptions within it because the impact of a general law on an individual may be such that justice is not served. Because of that, law therefore has to have exemptions built into it. As it stands, the Government are simply not able to have any exemptions within this. There is a blanket application of the law to particular individuals, whatever their circumstances.

We heard three very passionate and moving speakers leading on these amendments. The noble and learned Lord, Lord Etherton, supported by my noble friend Lord Cashman, outlined the circumstances that may occur with a particular social group. My noble friend mentioned the LGBT community, and the noble and learned Lord, Lord Etherton, will also appreciate that. Does that need to be considered within the Bill? We will have to see, but it appears to be another thing that the Government will just dismiss.

We heard from the noble and learned Baroness, Lady Butler-Sloss, about her amendments with respect to victims of modern slavery and trafficking. People who are trafficked have no choice. They do not say “Yes, traffic me”. That is different; that is smuggling. We are talking about people who are trafficked and have no part in the decision. The Government’s Bill just does not care about that. Those people will be subject to automatic deportation or going to Rwanda. As the noble and learned Baroness, Lady Butler-Sloss, said, quite rightly, surely that could be considered for exemption under the terms of the Bill.

My noble friend Lord Browne’s amendment, supported by the noble and gallant Lord, Lord Stirrup, and others, pointed out that a consequence of the Bill as it stands will be that people who served this country and put their lives on the line for us will simply be treated as illegal and deported to Rwanda. Does the Minister think that is right? Does he actually agree with that? It would be interesting to know whether he thinks that somebody, as my noble friend Lord Browne pointed out, who has fought for this country, served this country and put their life on the line, and who has had to come because of the situation in Afghanistan that my noble friend outlined, should be deported. Who in this House thinks that they should be deported to Rwanda? I do not believe the Government Front Bench think that. It is a rhetorical question; I will save the Minister from answering it. If they do not think that, then they should sort it out.

We are not playing at this; these are things that affect real people’s lives. The point the noble and gallant Lord, Lord Stirrup, made, is really important. What credibility will this country have if it finds itself in a similar situation in the future and says, “Work with us because we will ensure that you are protected”? What possible credibility would we have as a country or as part of an alliance? If we said to people, “If you serve with this country, do not worry about the consequences of it, because you will be protected”, what will we be able to say to them when, as the noble and gallant Lord pointed out, they simply turn around and say, “That is not what happened with those who served in Afghanistan”? Many of them were forced to stay and the consequences of that for some of them have been very severe.

The Government need to act on my noble friend Lord Browne’s amendment. We do not need warm words such as, “Yes, we need to consider this and think about it. It is a very important, interesting point that has been made”. The Government make the law. With respect to this, they should change the Bill to make sure that those people are protected and they should change the Bill in the way the noble and learned Baroness, Lady Butler-Sloss, has outlined, with respect to victims of modern slavery and trafficking. As my noble friend Lord Cashman and the noble and learned Lord, Lord Etherton, said, the Bill needs changing with respect to LGBT people—although I note my noble friend’s Amendment 33, which we will consider on Wednesday, may be a way of doing that. We will leave that for Wednesday.

This is a very important group of amendments dealing with individual claims and exemptions. This is not only about the law; it is about the way that justice works in this country. Justice demands these changes and I hope the Government respond.

[Lord Sharpe of Epsom (Con)]

My Lords, these amendments go to the issue of whether it is safe to relocate a person to Rwanda for particular individuals. It remains the Government’s view that these amendments are not necessary. I will again set out the Government’s case. Before I do, on the comments from the noble Lord, Lord Kerr, regarding amendments from noble Lords, obviously I cannot pre-empt what the other place will do or what that will prompt. I am sure that noble Lords will understand that.

Amendments 22, 24, 26, 28 and 30, tabled by the noble and learned Lord, Lord Etherton, would undermine one of the core principles of the Bill, which is to limit the challenges that can be brought against the general safety of Rwanda. The Government do not accept that these amendments are required to safeguard claims against removal to Rwanda on the basis of an individual’s LGBT identity, or indeed for any other characteristic, such as religious belief. These amendments would unnecessarily and significantly broaden the Bill’s provisions.

The Bill provides appropriate safeguards to ensure that decision-makers will make a case-by-case decision about the particular circumstances of each case. The Bill also allows decision-makers and the courts to consider certain claims that Rwanda is unsafe for an individual person due to their particular circumstances, despite the safeguards in the treaty, if there is compelling evidence to that effect.

As in all cases, decision-makers will make case-by-case decisions about whether the particular circumstances of each case would mean that an individual would be at real risk of harm were they to be relocated to Rwanda. That consideration would include an assessment of whether individuals faced a real risk of harm as a result of their sexuality. Furthermore, for LGBT individuals, that consideration would include any assessment of any compelling evidence reviewed in line with the principles outlined by HJ (Iran)—to which many noble Lords referred—that being LGBT would mean that Rwanda was not safe for them in their particular circumstances.

--- Later in debate ---

[Lord Scriven (LD)]

Can the Minister tell the House what legal provisions are on the statute book in Rwanda for the “T” part of “LGBT” in particular?

[Lord Sharpe of Epsom (Con)]

No, I cannot. I will have to come back to the noble Lord.

Rwanda is a signatory to the 2011 United Nations statement condemning violence against LGBT people, and it has joined nine other African countries to support LGBT rights. As part of the published evidence pack, the updated country policy information note gave careful consideration to evidence relating to the treatment of LGBT individuals in Rwanda. The Rwandan legal protection for LGBT rights is generally considered more progressive than that of neighbouring countries, as has been alluded to.

Amendment 25, tabled by the noble Lord, Lord Dubs, relates to claims on religion or belief grounds being taken into consideration for whether Rwanda is a safe country. The amendment specifically mentions an individual’s “religion or belief”, but the effect would be to permit the Secretary of State to consider whether an individual who is due to be relocated to Rwanda has any refugee convention reasons why Rwanda would not be safe for them, including on grounds of religion or belief. In effect, this would be considering a protection claim for a third-country national whose home country is not Rwanda.

A number of noble Lords raised concerns about religious tolerance in Rwanda and sought to argue that it would be unsafe for individuals who followed minority faiths or had no faith at all. The Government disagree with this contention. As our policy statement and the country information note on human rights make clear, and as I set out in my letter following Second Reading, the Rwandan constitution provides protection for individuals of different religions and faiths, as well as prohibiting discrimination of the grounds of religion or faith. Taken with the appropriate safeguards, which are set out in the Bill and elsewhere in our partnership with Rwanda, decision-makers will be in a position to consider the particular circumstances of each case, including where they involve an individual’s religious beliefs.

As I set out during an earlier debate, the Bill, along with the evidence of changes and the treaty, makes it clear that Rwanda is safe generally, and decision-makers, as well as courts and tribunals, must treat it conclusively as such. This ensures that removals cannot be delayed or frustrated by systemic challenges on safety. For this reason, I cannot accept Amendments 31 and 32 tabled by the noble Baroness, Lady Meacher.

Amendment 31 would remove the need for the risk of harm, when a serious and irreversible harm test is carried out, to be imminent. If accepted, this would enable a court or tribunal to delay or prevent a person’s removal to Rwanda based on a risk of harm that may not materialise for many months, if not years, after the person’s removal to Rwanda. This cannot be right. We cannot have a position whereby a person’s removal from this country is prevented based on a risk that does not currently exist and may not exist until a significant amount of time has elapsed after the person is removed. These provisions are consistent with the measures introduced in the Illegal Migration Act, agreed by this House last year. “Imminent” features in the European Court of Human Rights’ practice direction on interim measures. Clause 4(4) is not out of step with the Strasbourg court.

Amendment 32 would disapply Section 54 of the Illegal Migration Act, enabling the UK courts to grant an interim remedy preventing removal to Rwanda in cases where the duty to remove applied. This would undermine the suspensive claims procedure provided for in that Act. It risks vexatious claims being brought at the last minute in an attempt to frustrate removal, which would weaken the effectiveness of that Act. These amendments ultimately undermine the core principles of the Bill, and the Government cannot support them.

I turn to the position of potential and confirmed victims of modern slavery. The UK has a proactive duty to identify victims of modern slavery. We remain committed to ensuring that, when indicators that someone is a victim of modern slavery are identified by first responders, they continue to be referred into the national referral mechanism for consideration by the competent authorities. For all cases, steps will be taken to identify whether a person may be a victim of modern slavery. If a person is referred into the national referral mechanism, a reasonable grounds decision will be made.

The amendment proposed would act to impede the provisions already passed in the Nationality and Borders Act and the Illegal Migration Act, which introduced the means to disqualify certain individuals from the national referral mechanism on grounds of public order before a conclusive grounds is considered. Furthermore, the amendment is unnecessary, because it is important to be clear that the Government of Rwanda have systems in place to safeguard relocated individuals with a range of vulnerabilities, including those concerning mental health and gender-based violence.

If there is a positive reasonable grounds decision in a pre-Illegal Migration Act case, the provisions in Part 5 of the Nationality and Borders Act will protect the person from removal pending a conclusive grounds decision, unless they are disqualified on the grounds of public order.

As I set out in my letter to the noble Lord, Lord Purvis, under Article 5(2)(d) of the treaty the United Kingdom may, when necessary for the purposes of relocation and when UK GDPR compliant, provide Rwanda with

“the outcome of any decision in the United Kingdom as to whether the Relocated Individual is a victim of trafficking”,

and this includes positive reasonable grounds decisions. Under Article 13(1) of the treaty, Rwanda must

“have regard to information provided about a Relocated Individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking, and … take all necessary steps to ensure that these needs are accommodated”.

[Lord Scriven (LD)]

The Minister has just said something at the Dispatch Box that is not factually correct. He said that under Article 13(1) on trafficking Rwanda must take all necessary steps. The treaty actually says that it

“shall take all necessary steps”.

Those are two very different things.

[Lord Sharpe of Epsom (Con)]

Is that correct? It sounds very moot to me, legally. I said that Rwanda must

“have regard to information provided about a Relocated Individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking, and … take all necessary steps to ensure that these needs are accommodated”.

That sounds very much the same to me.

All relocated individuals, including potential and confirmed victims of modern slavery, will receive appropriate protection and assistance according to their needs, including referral to specialist services, as appropriate, to protect their welfare. So it is simply not correct to assert that the Government do not care.

Finally, if, despite those safeguards, an individual considers that Rwanda would not be safe for them, Clause 4 means that decision-makers may consider a claim on such grounds, other than in relation to alleged onward refoulement, if such a claim is based on compelling evidence relating specifically to the person’s individual particular circumstances, rather than on the ground that Rwanda is not a safe country in general.

I turn to Amendment 44, tabled by the noble Lord, Lord Browne of Ladyton, and spoken to by the noble and gallant Lord, Lord Stirrup. Although this amendment is well intentioned, it gives rise to the possibility that criminal gangs operating in northern France and across Europe will exploit this carve-out as a marketing model to encourage small boat illegal entry to the UK. The terms “agents, allies and employees” will likely result in people who have arrived illegally falsely claiming to be former agents and allies as a tactic to delay their removal, completely undermining this policy’s priority to stop the boats and promptly remove them, either to their home country or to a safe third country such as Rwanda.

The Government deeply value the support of those who have stood by us and our Armed Forces overseas. As a result, there are established legal routes for them to come to the UK. For example, those who enlist and serve in His Majesty’s Armed Forces are exempt from immigration control until they are discharged from regular service. After this time, non-UK HM Armed Forces personnel can apply for settlement under the Immigration Rules on discharge when their exemption from immigration control ends.

There are also provisions for family members of HM Armed Forces personnel to come to the UK legally. Anyone eligible for the Afghan relocations and assistance policy and the Afghan citizens resettlement scheme should apply to come to the UK legally under those routes.

I take what the noble Lord, Lord Browne, and the noble and gallant Lord, Lord Stirrup, say very seriously, and His Majesty’s Government regret that so many cases need to be reassessed. The MoD is taking the necessary steps to ensure that all future decisions are made in accordance with the enhanced guidance being produced for the review to which the noble Lord, Lord Browne, referred. This was recently announced by the Defence Secretary and while many former members of Afghan specialist units, including the Triples, have been found eligible under ARAP and safely relocated to the UK with their families, a recent review of processes around eligibility decisions demonstrated instances of inconsistent application of ARAP criteria in certain cases. In light of that, the MoD is taking the necessary steps to ensure that the ARAP criteria are applied consistently through reassessments of all eligibility decisions made on ineligible applications with credible claims of links to Afghan specialist units on a case-by-case basis.

This review will move as quickly as possible, but we recognise that ARAP applications from this cohort present a unique set of challenges in assessing their eligibility. These units reported directly into the Government of Afghanistan, which means that HMG do not hold employment records or comprehensive information in the same way we do for many other applicants. It is essential that the MoD ensures this is done right and provides the opportunity for applicants to provide further information—which I note can sometimes take time—from these individuals.

[Lord Browne of Ladyton (Lab)]

Will the Minister answer the question I asked in February when this review was announced: will anyone who is eligible for ARAP but was told they were ineligible—and acted in a way in which a small number of them did in extremis to protect themselves from possible death—be disqualified from being allowed to become eligible on review? Will they be excluded from the requirement of the Illegal Migration Act and this Bill if it becomes law that they must be deported to Rwanda?

[Lord Sharpe of Epsom (Con)]

As I understand it, they will be deported to Rwanda.

In conclusion, the Government of Rwanda have systems in place to safeguard relocated individuals with a range of vulnerabilities. The Bill already includes adequate safeguards which allow decision-makers to consider certain claims that Rwanda is unsafe for an individual due to their particular—

[Baroness Butler-Sloss (CB)]

In relation to modern slavery, is there any law in Rwanda that protects those suffering from modern slavery or human trafficking?

[Lord Sharpe of Epsom (Con)]

I am unable to comment on Rwandan law, but, of course, the treaty takes care of this and I went into detail on that earlier. Under Article 5(2)(d) of the treaty, the United Kingdom may where necessary for the purposes of relocation provide Rwanda with

“the outcome of any decision in the United Kingdom as to whether the Relocated Individual is a victim of trafficking”,

and that includes a positive reasonable grounds decision. Under Article 13(1) of the treaty, Rwanda must have regard to information provided about a relocated individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking, and must take all necessary steps to ensure that these needs are accommodated.

I have to answer the noble and learned Baroness, Lady Butler-Sloss, by saying that at the moment I do not know whether it has those laws enshrined in domestic laws, but when the treaty is ratified, it will.

[Baroness Butler-Sloss (CB)]

As far as I know, there is no legislation to that effect in Rwanda.

[Baroness Coussins (CB)]

My Lords, will the review of ARAP decisions apply to the Afghan interpreters and translators and not just to military personnel?

[Lord Sharpe of Epsom (Con)]

When I was explaining the ARAP situation, I pointed out the difficulty of assessing and accessing some of the records, but I will certainly make sure that is taken back to the Foreign Office, which, as I understand it, administers a large part of the ACRS, which is the agreement under which the Afghan interpreters come to this country. I will find out the answer.

[Lord Scriven (LD)]

The Minister will not be able to answer this, but I would appreciate it if he could write to me and the House on it. He keeps referring to the treaty saying “must”. There is a difference between “must” and “shall”. In law, “must” is an absolute obligation. Article 13(1) says that Rwanda they “shall” take necessary steps, not “must”. Will he write to me, as I have the treaty here and it says something different from what he has said three times from the Dispatch Box?

[Lord Sharpe of Epsom (Con)]

I am advised by my noble and learned friend Lord Stewart of Dirleton that “must” and “shall” both have a mandatory quality, but I will of course write to the noble Lord.

If there is compelling evidence, despite the safeguards in the treaty, decision-makers will be able to consider certain claims that Rwanda is unsafe for an individual due to their particular circumstances, as we have discussed a number of times. However, I say again that these amendments are unnecessary. On that basis, I invite the noble and learned Lord to withdraw his amendment and urge other noble Lords not to press theirs.

[Lord Etherton (CB)]

I am very grateful to the Minister for that analysis of the speeches made and the Government’s response to them. I am also grateful to all noble Lords who have spoken in this debate, which has raised some important points about people who are extremely vulnerable.

The noble Lords, Lord Kerr and Lord Coaker, articulated the point that all these amendments dealing with exemptions are objectively extremely reasonable and important, and do not involve huge numbers of people such as to undermine the effectiveness of this proposed legislation. Descending to details to say that they are not necessary, when it is plain that they are, shows a certain lack of not only sensitivity to the Chamber but a spirit of humanity which should underlie the Government’s response.

Turning to my Amendment 22 and its consequential amendments, I find it difficult to understand how the Government can justify dropping and effectively disfranchising one of the expressly specified categories of refugee in the convention. There is nothing in the policy statement issued by the Government when the Bill was published or in the Explanatory Notes to say that they would do this. I would have thought that dropping a specific category of refugee defined by this convention which we have signed up to is an extraordinary move.

The justification seems to be that the Government will not permit reference to groups because it would significantly enlarge the number of those entitled to claim. However, if they are entitled to claim by virtue of a convention which we have signed up to, the Government must accept that, like all the other 149 states signed up to it. You cannot simply say, “We’ll ignore this or that category of refugee” or “We’ll just rely on this category of refugee”. There must be an ability, in one way or another, for all those mentioned as refugees to explain why removal would result in persecution and serious harm.

Leaving that matter aside, I will comment on the intervention by the noble Lord, Lord Murray, on comments made by the noble Lord, Lord Cashman, about the situation of LGBT people in Rwanda. I do not want to go through this again, but there are two factors on which the noble Lord, Lord Murray, did not comment, and in fact have never been commented on appropriately by the Government, by way of some sort of excuse in relation to LGBT people and the risk that they face in leading an openly gay life in Rwanda.

First, the travel information provided by the Foreign, Commonwealth and Development Office remains the same as it always has done, as it was at the time of the Illegal Migration Act: there is a danger to LGBT people living openly as such in Rwanda. Secondly, and importantly, no reference has been made to something that I mentioned in Committee: the country report on Rwanda of the US State Department, which was published only one year ago, and which talks about persecution and the possibility of physical harm to LGBT people. The Government have never addressed those points at all, but I am not going to go further into that.

As to the others, I personally strongly support all the other exemptions, which seem to me to be reasonable, humane and entirely appropriate, not designed to undermine the Bill but really rising to the level of morality which we should display as a country in relation to these categories of people. Having said all of that, and having heard the Minister, the best thing that I can do is to leave it to the amendment in the next group, tabled by the noble Baroness, Lady Chakrabarti, which contains reference to groups. For my part, having had this debate will have been useful in honing the points that will have to be met in relation to that. On that basis, and that basis alone, I beg leave to withdraw my amendment.

Ukrainians: Visas and Further Support

Lord Sharpe of Epsom Excerpts

Monday 4th March 2024 Lords Chamber

[Lord Kirkhope of Harrogate]

To ask His Majesty’s Government what plans they have to extend visas for Ukrainians which are due to expire after 3 years, and what further support they intend to provide to Ukrainians in the United Kingdom.

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

My Lords, to provide future certainty, on 18 February the Government announced that existing Ukraine scheme visa holders will be able to apply for permission to remain in the UK for an additional 18 months under a new Ukraine permission extension scheme, which is set to open in early 2025 before the first Ukraine scheme visas start to expire in March 2025.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I had the honour of being a Minister involved in the Bosnian resettlement scheme in 1996. I am very grateful to my noble friend for that Answer and commend the Government on their actions to offer sanctuary to so many Ukrainians. I also pay tribute to the many families and organisations under the Homes for Ukraine scheme who have hosted and helped those displaced people, including colleagues in this House and Members of the other place. However, the visas granted envisaged a shorter conflict than the one we unfortunately have, so will my noble friend assure the House that everything will be done to make necessary renewals as straightforward and stress-free as possible for those currently in receipt of our hospitality?

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for those remarks and join him in praising the generosity of the British public over the three bespoke Ukraine schemes. The UK has welcomed or offered sanctuary to more than 280,000 Ukrainians and their families fleeing the war in Ukraine. Together with our partners and allies, the Government stand in solidarity with Ukraine and will show that those who need our help are still warmly welcomed. It is right that we continue to adapt and develop the visa routes to ensure that they keep pace with the rapidly shifting situation in Ukraine, remaining as efficient and sustainable as possible while providing stability for those welcomed to the UK who need our sanctuary. We will ensure that this is done as efficiently as possible.

[Lord Addington (LD)]

My Lords, will the Minister assure us that all those being helped by this scheme will be assisted until it is safe to go home and that, whatever the rollout may be, a further scheme will be found? That is probably the assurance they need, and this country should give it.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

The noble Lord raises a very good point. Of course, it is not for this Government to judge the certainty of conflict situations, which are very difficult to manage. However, I have no doubt that the Government will do whatever is necessary to maintain the current sanctuary that this country proudly offers.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too pay tribute to all the families who have taken Ukrainians into their homes. Under the new changes to the Ukraine family scheme, unaccompanied children will no longer be able to join their parents in Britain automatically. Does the Minister think that restricting family rights at a time when Ukrainian troops are under heavy fire in Donetsk sends the right message to the people of Ukraine about our willingness to stand by them?

[Lord Sharpe of Epsom (Con)]

I rather regret the tone of that question if I am honest. Ultimately, of course we would like to see families reunited in a safe Ukraine. The UK’s Ukraine schemes are not family reunification pathways. They are designed to provide temporary sanctuary in the UK for Ukrainians fleeing war. Ukrainian nationals who would have qualified under the Ukraine family scheme will still be able to apply under Homes for Ukraine. The Home Secretary will obviously consider any compelling and compassionate grounds that are presented on a case-by-case basis; for example, where families will be separated from young children. Plenty of routes still exist for family reunification in the UK, even though, as I said earlier, they are not reunification pathways.

[Lord Stirrup (CB)]

My Lords, I am aware of a Ukrainian lady who is harboured here in the United Kingdom, whose husband remains in Ukraine, and who has sadly had a return of a cancer from which she was previously in remission. She is not just grateful for but indeed overwhelmed by the help and treatment that she has received here in the UK. Does the Minister agree that while there is absolutely no room for complacency, we should be very proud of what this country has done in supporting the Ukrainians?

[Lord Sharpe of Epsom (Con)]

I completely agree with the noble and gallant Lord. Although I obviously cannot comment on individual cases, I wish the lady in question the very best, and I hope that she is reunified with her husband in due course.