Emergency Services Network: Critical Communications System

Lord Sharpe of Epsom Excerpts

Monday 29th January 2024 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I draw attention to my interests in the register.

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

My Lords, the Home Office is procuring a new supplier for mobile radio and data services following Motorola’s withdrawal from ESN. This means the expected transition to ESN in 2024 and Airwave shutdown in 2026 cannot now be achieved. A revised business case will be published this year. This will reflect the impact of procurement activity and the charge control imposed by the Competition and Markets Authority on Motorola in 2023.

[Lord Harris of Haringey (Lab)]

My Lords, this is pretty poor, is it not? The programme was originally announced a decade ago. The switchover was supposed to start in 2017 and be completed by 2019. The original cost was a mere £6.2 billion; the last estimate—and that is two years out of date, before Motorola withdrew—was £11.3 billion. Only one network provider was prepared to bid. The National Audit Office warned that this is a technology

“not yet proven in real-world conditions”.

It is a system based on a mobile phone network, creating a single point of failure. Can the Minister tell us—given that the cost has at least doubled, implementation is at least 14 or 15 years late, and there is no guarantee that the existing Airwave system can continue beyond the year after next—if this debacle is not the fault of his department then whose fault it is and who is taking responsibility?

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Lord has asked me a large number of questions. To reassure all noble Lords, there is no reason at all why Airwave cannot be extended beyond 2030. As for how we got to where we got, it is worth reminding the House that it was the Home Office that referred Motorola to the Competition and Markets Authority in April 2021; that resulted in Motorola leaving the Emergency Services Mobile Communications Programme in December 2022. My noble friend the Chief Whip answered a Question back in 2022 which mentioned the £11.3 billion figure referred to by the noble Lord. That was for a programme that was supposed to run between 2015-16 and 2036-37. Unfortunately, any estimates that I give now would not be comparable in duration or end date; the end date is now expected to be 2044. However, the CMA charge control imposed on Motorola will involve a saving to the taxpayer. The numbers are very much up in the air.

[Lord Addington (LD)]

My Lords, can the Minister assure us that the Government will look at the original tendering process to find out exactly why this went wrong, since it clearly has? As an aside, can the Government give us an assurance that no one from Fujitsu or its Horizon programme is let anywhere near it?

[Lord Sharpe of Epsom (Con)]

My Lords, I suppose this could have been spotted earlier, but the fact is that Motorola’s dual role in it arose as a result of the company acquiring Airwave at the same time as it was awarded the contract for ESN, so the Home Office’s options at that point were limited. We sought to agree measures to protect the delivery of ESN and, when it became clear that those measures were insufficient, the Home Office raised its concerns with the Competition and Markets Authority. As for future suppliers, the contracts will be awarded later this year, and I shall make sure that the noble Lord’s concerns are reflected.

[Lord Coaker (Lab)]

My Lords, the Government are supposed to be introducing a new emergency services network, but, as my noble friend pointed out, what the Minister has said leaves us all still bewildered about the actual implementation date. Perhaps he can tell us. The original date was 2017, but the implementation date is what everyone wants to know. When is it going to be working? When are we going to know that we have a new emergency services network? From what I could see, the Home Office stated that it would be 2029. Is that still correct? In other words, when can we actually have the new emergency services network promised by the Government?

[Lord Sharpe of Epsom (Con)]

I obviously cannot answer that question as precisely as the noble Lord would like. Yes, 2029 is an aspiration, partly because of the functionality of Airwave, to which I have already referred. However, some aspects of ESN are already live. Three ESN products have gone live in the past two years: 4G data connectivity for vehicles, which is called Connect; push-to-talk and messaging capability on smartphones, Direct 1 and Direct 2; and a device that can monitor and assess coverage on the move. Significant work has gone into the EAS, which is blanket coverage across the country, while much of the hardware has already been put in place. The noble Lord draws far too bleak a picture.

[Lord Hogan-Howe (CB)]

My Lords, I declare an interest, including having carried out a review for the Home Office, part of which the Minister has referred to, which is the recommendation to refer to the monopolies commission. As he explained, Motorola purchased the legacy system and was paid around £250 million, while for the new system that it was about to deliver it would be paid £50 million. There was no financial incentive to deliver anything, and, perhaps consequently, it has not.

The only thing that reassures me at the moment is that the Government are going to look smartly at whether to discriminate between the radio system and data production. The big problem is that, nowhere in the world, at pace and at scale, has anyone shifted a radio system on to a telecommunication system. That is the fundamental problem. The transmission of data is not the issue—we do that on our phones all the time—but we probably need to carry on delivering the radio as it was and separate the data off. If we continue to try to combine them, I worry that it will become even more undeliverable than it has been to date.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a good point and I thank him for his perspective. He is right that the radio supply over the networks remains critical. As I understand it—and this answers one of the earlier questions from the noble Lord, Lord Harris—the technology is more proven than it was when the PAC last commented on it. It is being rolled out in other parts of the world; from memory, Korea is one of the countries where it is being tested. So some of those aspects at least have been dealt with.

[Lord Harris of Haringey (Lab)]

My Lords, I apologise for coming back again, but the Minister is essentially implying that this just happened—that Motorola came in and bought Airwave, and these things just happened like that. But is not the reality that the negotiations were conducted between highly sophisticated multinational companies that are used to doing negotiations and a bunch of ingénues on the Home Office side? It is not surprising that the country has been ripped off in this way. Does the Minister agree?

[Lord Sharpe of Epsom (Con)]

No, that is a very unfair characterisation. As I said earlier, Motorola bought Airwave, which could not have been foreseen, and, therefore, as the noble Lord, Lord Hogan-Howe, has just pointed out, it became in effect a monopoly supplier. That is why the Competition and Markets Authority was involved at the behest of the Home Office, which did the right thing.

Investigatory Powers (Amendment) Bill [HL]

Lord Sharpe of Epsom Excerpts

Report stage
Tuesday 23rd January 2024 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his continued engagement with us on all aspects of this important Bill. I would be grateful if he could pass that on to his officials as well. I wish the noble Baroness, Lady Manningham-Buller, well with her knee, and I hope she will soon be able to make do without the crutch.

I very much support what my noble friends Lord West and Lord Murphy said about the amendments moved by my noble friend Lord West regarding the ISC. I look forward to the Minister’s response. I will come to my amendments in a moment, but it goes to the heart of what many of us have been saying—that the Intelligence and Security Committee is extremely important. Part of the problem is that, when the Minister responds to us on these points, he often says, “Don’t worry: there’s ministerial oversight”. However, what my noble friends have talked about is that this is not the same as parliamentary oversight. There is an important distinction to be made. I hope that the Minister can respond to that.

I turn to the noble Lord, Lord Fox, and his amendments. Again, we thank the Government for the communication we have had regarding Amendments 1 and 7. As I have intimated before, we support the noble Lord, Lord Fox, on his Amendments 1 and 7. With the addition of the low/no datasets authorisation and third-party data warrants to the bulk personal datasets warrants regime, and the extension of powers that this represents, it seems appropriate that additional safeguards are put in place to ensure the judicial commissioner is informed as quickly as possible of the use of these urgent warrants. Importantly, that does not change how long the judicial commissioner has to consider the warrant, and to revoke access if necessary; it is just on the importance of notification as quickly as possible. If urgent powers, as the noble Baroness, Lady Manningham-Buller, has pointed to, need to be used, nobody is suggesting that they are not used; the suggestion is that the notification to the judicial commissioner should be made as soon as possible and, with respect to the amendment of the noble Lord, Lord Fox, within 24 hours.

I turn to my Amendment 47. This amendment aims to try to get the Minister to put some of this on the record, rather than to seek to divide the House on it. Amendment 47 seeks to ensure that the Government report on the potential impact of the Bill on the requirement to maintain data adequacy decisions from the EU. The adequacy agreement is dependent on the overall landscape of UK data protections. Although the UK protections are currently considered adequate, deviations from this under this legislation could put our current status at risk. Losing this designation would have serious consequences for digitally intensive sectors, such as telecommunications and financial services as well as tech services. In his response, could the Minister provide some reassurances on this particular aspect of the legislation and say whether any specific analysis has been done on the impacts of the Bill on the data adequacy agreement?

I turn to my Amendment 5, which, just for clarity, is a probing amendment but is extremely important. The Minister will know that I have raised this point again and again on various pieces of legislation over the last year or two. To be fair, the Minister has said that he will raise it with the appropriate people, and I am sure that he has done that—I am not questioning that at all. As the noble Lord, Lord Murphy, said, and the Intelligence and Security Committee said in its report of 5 December 2023—hence my Amendment 5 to probe this—no meeting between the Prime Minister of our country and the Intelligence and Security Committee has taken place since December 2014. I am pleased that we have the noble Lord, Lord Cameron, here—not present in the Chamber now, but here within your Lordships’ House—because he was the last Prime Minister that met with the committee. I find it absolutely astonishing that that is the case.

We are informed by the committee that many invitations have been made to various Prime Ministers to attend the Intelligence and Security Committee. I do not want to go on about this—well, I will to an extent—but it is incredibly important. I cannot believe—people say that it cannot be right, and I show them the report—that it has been 10 years since a Prime Minister has gone to the body, which has been set up by Parliament to ensure there is liaison between Parliament and the intelligence and security services. Obviously, matters can be discussed in that committee. Some of those cannot be discussed in the open, but that is one way in which it is held to account.

Can the Minister explain what on earth is going on? Why is it so difficult for the Prime Minister to meet the committee? I am not intending to push this amendment to a vote, as I say, and I am sure the Minister will try to explain again, but it is simply unacceptable that the Prime Minister of this country has not met the ISC for 10 years. For the first 20 years of its existence, and my noble friend Lord West will correct me if I am wrong, I think it was an annual occurrence that the Prime Minister met the ISC—my noble friend Lord Murphy is nodding—yet that has not happened since 2014. That is unacceptable, and my Amendment 5 seeks to ask the Minister what on earth we are going to do to try to get the Prime Minister to attend. I would not have thought that was too much to ask.

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

My Lords, I have listened with interest to the points made in this debate. As noble Lords will be aware, we have considered carefully the amendments that have been debated. I place on record my thanks to the noble Lords, Lord West, Lord Coaker and Lord Fox, for their constructive engagement in the run-up to today’s debate on these issues and various others that will be debated later today.

I turn first to the topic of oversight of the new Part 7A regime containing bulk personal datasets, BPDs, where there is low or no expectation of privacy. Alongside the proportionate set of safeguards set out in Part 7A, the Bill currently provides for executive political oversight and accountability by requiring the heads of the intelligence services to provide an annual report to the Secretary of State about Part 7A datasets. The intention of the report is to ensure that there is a statutory mechanism for political oversight, given that the Secretary of State will not have a role in Part 7A authorisations. That is set out in new Section 226DA in Clause 2 of the Bill.

The Investigatory Powers Commissioner will continue to provide full, independent and robust oversight of the investigatory powers regime, including this new part. Nevertheless, the Government have listened to the points made by noble Lords and colleagues in the other place, and we understand their concerns about increasing parliamentary oversight. Government Amendment 4 therefore recognises the important role of the ISC in providing parliamentary oversight of the intelligence services. It places a statutory obligation on the Secretary of State to provide the ISC with an annual report containing information about category authorisations granted under the Act during the year. The amendment will ensure that the ISC is proactively provided with information about the operation of Part 7A on an annual basis. That will support the ISC in continuing to fulfil its scrutiny role and will enhance the valuable parliamentary oversight the committee provides.

It is appropriate for the ISC to be privy to certain information relating to Part 7A in the exercise of its functions, and that a statutory obligation be placed on the Secretary of State to provide it. This obligation is intended to be consistent with the provisions set out in the Justice and Security Act, and due regard will be had to the memorandum of understanding between the Prime Minister and the ISC when meeting it. It is likely that Amendments 2 and 3, tabled by the noble Lord, Lord West of Spithead, which would require that the report provided to the Secretary of State be also shared with the ISC, would not be in step with that. The information required by the Secretary of State to fulfil their responsibilities in respect of the intelligence services will not necessarily be the same as that which would assist the ISC in performing its functions. The report will almost certainly contain information about live operations, which is outside the scope of the ISC’s remit, as well as other information that it may not be appropriate to share with the ISC and which the Secretary of State could properly withhold from the ISC were the ISC to request it.

For that reason, we think it more appropriate that a report be written to meet the ISC’s functions that the Secretary of State will send to the ISC. This will provide the additional parliamentary oversight the committee is seeking and would be akin to the existing arrangements in place for operational purposes.

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[Lord Coaker (Lab)]

I thank the Minister for giving way, because this is an extremely important point. He mentioned with respect to my Amendment 5 that somebody will formally reach out. Does that mean that the Prime Minister will formally reach out to the ISC and meet with it, so that we get a resolution to this non-meeting?

[Lord Sharpe of Epsom (Con)]

I cannot say whether or not that someone will be the Prime Minister at the moment.

As I said, the Government are clear that the MoU review is the correct forum to discuss relevant potential changes to the agreement between the Prime Minister and the ISC. But the Government do not believe a report of this kind is appropriate or necessary and do not support the amendment. The noble Lord, Lord Coaker, has already answered the question from the noble Lord, Lord Murphy, and all I can say from the Dispatch Box is that I will try again.

I turn to the second of the amendments from the noble Lord, Lord Coaker, Amendment 47, which would require the Government to publish a report assessing the potential impact of this legislation on the EU’s data adequacy decision. The Government are committed to maintaining their data adequacy decisions from the EU, which play a pivotal role in enabling trade and fighting crime. The Home Office worked closely with the Department for Science, Innovation and Technology when developing the proposals within this Bill to ensure that they would not adversely impact on the UK’s EU data adequacy decisions. As the European Commission has made clear, a third country is not required to have the same rules as the EU to be considered adequate. We maintain regular engagement with the European Commission on the Bill to ensure that our reforms are understood. Ultimately, the EU adequacy assessment of the UK is for the EU to decide, so the Government cannot support this amendment.

I turn to the amendments retabled by the noble Lord, Lord Fox, on urgency provisions for individual authorisations under Part 7A and third party dataset warrants under Part 7B. The Government remain opposed to these iterations of the amendments for the following reasons. Urgency provisions are found throughout the IPA and the Government’s approach is to mirror those provisions in the regimes in new Part 7A and new Part 7B. Making the proposed amendment solely for these parts would reduce consistency—as the noble Lord, Lord Fox, predicted—and ultimately risk operational confusion where there is no good reason to do so.

It will always be in the interests of the relevant intelligence service—as the noble Baroness, Lady Manningham- Buller, said; I add my comments to those of the noble Lord, Lord Coaker, about a speedy recovery—to notify a judicial commissioner of the granting of an urgent authorisation or the issuing of an urgent warrant as soon as is reasonably practicable. These urgent instruments are valid only for five working days. A judicial commissioner must review and decide whether to approve the decision to issue or grant the instrument within three working days. If the judicial commissioner refuses to approve the decision within that time, then the instrument will cease to have effect. It would be counter- intuitive for an intelligence service to make untimely notifications, as this increases the risk of the urgent authorisation or warrant timing out because the judicial commissioner is left without sufficient time to make a decision.

In an operational scenario where the urgency provisions are required, such as a threat to life or risk of serious harm, or an urgent intelligence-gathering opportunity, it may not be practical or possible for the intelligence services to ensure completion of paperwork within a 24-hour period, as the noble Baroness, Lady Manningham- Buller, explained rather more eloquently than I have done.

The intelligence services work closely with the Investigatory Powers Commissioner’s Office to ensure that the processes for reviewing decisions are timely and work for judicial commissioners. For those reasons, I ask that the noble Lord, Lord Fox, does not press his amendments.

This group also includes the two modest but worthwhile government amendments, Amendments 8 and 9. These make it clear beyond doubt that the new third party BPD regime will fall under the oversight of the Investigatory Powers Commissioner. The robust oversight that IPCO brings will ensure compliance, ensuring that robust safeguards are in place when information is examined by the intelligence services on third parties’ systems. I hope that noble Lords will welcome these amendments and support them.

[Lord Butler of Brockwell (CB)]

My Lords, as a former member of the Intelligence and Security Committee, perhaps I may say how much I endorse what has been said by the noble Lords, Lord West and Lord Murphy, and welcome many elements in the—

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Moved by

[Lord Sharpe of Epsom]

4: Clause 2, page 11, line 16, at end insert—
“226DAA Report to Intelligence and Security Committee(1) The Secretary of State must for each relevant period provide to the Intelligence and Security Committee of Parliament a report setting out information about category authorisations and renewals of category authorisations granted in that period.(2) In subsection (1) “relevant period” means—(a) a period of at least one year and no more than two years beginning with the date on which this Part comes fully into force, and(b) subsequent periods of no more than one year, beginning with the end of the period to which the previous report related.(3) Each report must be provided to the Committee as soon as reasonably practicable after the end of the period to which the report relates.”Member’s explanatory statement
This amendment requires the Secretary of State to provide to the Intelligence and Security Committee of Parliament reports about category authorisations and renewals of such authorisations under new Part 7A of the Investigatory Powers Act 2016.

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Moved by

[Lord Sharpe of Epsom]

8: Clause 6, page 25, line 15, leave out “and (3)” and insert “to (3A)”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 25, line 30.

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Moved by

[Lord Sharpe of Epsom]

10: Clause 8, page 27, line 14, at end insert—
“(aa) deciding under section 90(11) or 257(10) whether to approve a decision of the Secretary of State,”Member’s explanatory statement
This amendment provides that the function of the Investigatory Powers Commissioner (“IPC”) of deciding, under section 90(11) or 257(10) of the Investigatory Powers Act 2016 (review of notices), whether to approve decisions may be delegated to a Deputy IPC only where the IPC is unable or unavailable to exercise the function.

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[Lord Sharpe of Epsom (Con)]

My Lords, I will speak to the government amendments in this group, Amendments 10 to 14.

The Investigatory Powers Act contains world-leading oversight arrangements and safeguards that apply to the use of investigatory powers. The Bill strengthens these to ensure that the oversight regime is resilient and that the Investigatory Powers Commissioner is able to carry out his functions effectively. These government amendments are designed to maintain this approach, and to tighten the drafting in certain areas to ensure that the scope of the measures in Part 3, in respect of communications data, cannot be interpreted more broadly than is intended.

I will start with government Amendment 12, which will ensure that there is clarity for telecommunications operators regarding their obligations to report personal data breaches relating to warrants issued under the IPA. The proposed new clause will also make provision for such breaches to be reported to the Information Commissioner and the Investigatory Powers Commissioner. This amendment will also ensure that the Investigatory Powers Commissioner has the ability to notify an individual affected by the personal data breach, if it is deemed to be in the public interest to do so and if the Information Commissioner considers the breach to be serious. Such a notification will inform an individual of any rights that they may have to apply to a court or tribunal in relation to the breach. This important amendment will bring much-needed clarity in respect of how personal data breaches committed by tele- communications operators are regulated, and ensure that there is a clear statutory basis for the Information Commissioner and the Investigatory Powers Commissioner to be notified of certain personal data breaches.

I move on to government Amendments 10 and 11. Amendment 11 adds Scottish Ministers to the list of parties, at Clause 9(5), who are to be notified by the Investigatory Powers Commissioner of the appointment of a temporary judicial commissioner. This must be as soon as practicable after any temporary judicial commissioner has been appointed. This will ensure that Scottish Ministers are kept abreast of crucial developments in the investigatory powers oversight regime. A similar requirement already exists in the Bill, which requires the IPC to notify certain persons, including the Secretary of State and the Lord President of the Court of Session, of an appointment of a temporary judicial commissioner.

Government Amendment 10 to Clause 8 allows the Investigatory Powers Commissioner to delegate to deputy Investigatory Powers Commissioners the power to approve decisions following the review of a notice. This brings this function in line with the commissioner’s other functions in the Act with regards to delegation and, as with those powers, allows for delegation in only when the commissioner is unavailable or unable.

I turn now to government Amendments 13 and 14, both of which concern communications data, which I will refer to as CD. Government Amendment 13 clarifies the extent of Clause 11 to ensure that its scope is not wider than intended. Section 11 of the IPA creates the offence of acquiring CD from a telecommunications operator without lawful authority. Clause 11 seeks to carve out from the scope of Section 11 the sharing of CD between public authorities, where one of those authorities was a telecommunications operator.

This amendment to Clause 11 ensures that the public authority carve-out from the Section 11 IPA offence of acquiring CD without lawful authority does not go wider than intended. The new definition is based on the definition of public authority in the Procurement Act 2023. The previous definition was based on the definition of public authority in the Human Rights Act 1998. This latter definition could, in some circumstances, have created doubt over whether it included certain private sector telecommunications operators.

This amendment removes that doubt and clarifies that the public authority carve-out will apply only to telecommunications operators wholly or mainly funded by public funds—in other words, they are public authorities themselves. The IPA was designed to ensure that the acquisition of CD from private sector tele- communications operators for the statutory purposes set out in the Act was subject to independent oversight to safeguard against abuse. This amendment maintains this important safeguard in relation to private sector telecommunications operators.

I turn to government Amendment 14. It is critical that the legislation is absolutely clear on what constitutes CD and the lawful basis for its acquisition. Without this clarity, we risk placing CD that is crucial to investigators out of their reach. Government Amendment 14 therefore seeks to clarify that subscriber data used to identify an entity will be classed as CD.

This amendment is necessary as the existing Act creates a carve-out in the definition of CD to ensure that the content of a communication cannot be acquired under a Part 3 acquisition request. This reflects Parliament’s view during the initial passage of the IPA 2016 that the content of a communication is inherently more sensitive than the underpinning metadata: the “who”, “where”, “when”, “how” and “with whom” of a communication. Clause 12 amends the definition of CD in Section 261 of the Act to exclude certain types of data from the carve-out of content from the definition of CD. The effect of this is to include those data types within the definition of CD.

Government Amendment 14 restricts the effect of Clause 12 to ensure that it is not overly broad and cannot be applied to bring unintended, inappropriate types of data within the definition of CD. For example, the amendment will put beyond doubt that the content of recorded calls to contact centres or voicemails is not in scope of the amended CD definition and will not be accessible with an authorisation under Part 3 of the Act. The amendment to Section 261 does not affect the oversight function of the Investigatory Powers Commissioner’s Office, which continues to inspect and highlight any errors and provide prior independent authorisation for the acquisition of CD in most cases.

I hope I have convinced noble Lords of the necessity of these government amendments; I ask that they support them. I also hope that these amendments provide reassurance to noble Lords, ahead of the debate on this group, of the Government’s commitment to ensuring that the clauses in Part 3 are drafted as tightly as possible and with a proportionately narrow scope.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support the introduction of the Government’s amendments. I echo what the noble Lord, Lord Fox, said about the amendment in the name of the noble Lord, Lord Anderson, and I look forward to the Government’s response on that point.

I would also be interested to hear what the Government have to say about my noble friend Lord West’s amendments. He has taken a keen interest in this part of the Bill, and I hope the Government will be able to answer the questions, in particular on data disclosure powers, as I think they can give a more detailed response to the expansion of disclosure powers to regulatory bodies than was given in the original legislation. It is also very likely to be further analysed and looked at as the Bill moves down to the other end of the Corridor. Nevertheless, we support the amendments as they are currently.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for this short debate and the scrutiny on these important issues. First, I will address Amendments 15 and 16 tabled by the noble Lord, Lord West of Spithead, which seek to remove Clause 13 and the Schedule from the Bill. We have covered some of the same ground as we did in Committee, and I am afraid that much of my response will make similar points to those I made then. However, I can appreciate why he has raised the points he made about these provisions, and I hope that I can still provide him with assurance on why these measures are needed and proportionate.

As the Government have been clear, the purpose of Clause 13 is to ensure that bodies with regulatory or supervisory functions are not inhibited from performing the roles expected of them by Parliament. It restores their pre-existing statutory powers to acquire CD in support of those functions. When the IPA was passed in 2016—under the expert stewardship of the noble Lord’s fellow ISC member in the other place, the right honourable Member for South Holland and The Deepings—it made specific provision, at Section 61(7)(f) and (j) respectively, for the acquisition of CD for the purposes of taxation and oversight of financial services, markets and financial stability. The noble Lord and his fellow committee members have queried whether we are “unmaking” these measures in the 2016 Act through Clause 13 of the Bill. I would therefore like to put beyond doubt what has happened since then to lead us to this point of needing to refine rather than unmake these provisions.

Following the Tele2 and Watson judgment from the Court of Justice of the European Union in 2016, the Government took the opportunity to streamline the statute book, including but not limited to some changes in response to that judgment. This streamlining included the removal of the regulatory provisions contained in the IPA because, at that time, those public authorities with regulatory or supervisory functions were able to acquire the data they needed using their own information-gathering powers, and Section 12 of the IPA had not yet been commenced, removing many of those powers. The relevant data was outside of the provisions of the IPA at this time and therefore not considered to come within the definition of CD.

Since then, businesses have operated their services more and more online. This has meant that many have become, in part at least, telecommunications operators as defined by the IPA. As a consequence, growing amounts of the data that they collect—which regulatory and supervisory bodies would have previously been able to access using their own information-gathering powers—now fall within the IPA’s definition of CD. The effect of this is that public authorities are increasingly unable to acquire the CD that they need to perform their statutory civil or regulatory functions.

In summary, the IPA has been changed since it was commenced in 2016 to remove tax-related and financial stability-related powers to acquire CD and to introduce the serious crime threshold. Technology and society have moved on, with the result that more relevant data amounts to CD. Section 12 of the IPA has been commenced to remove general information powers. The combination of these changes has meant that public authorities are experiencing increased difficulty in carrying out their statutory functions. For example, the Financial Conduct Authority, His Majesty’s Revenue & Customs and the Treasury are all examples of public authorities that already have the power to acquire CD using a Part 3 request but that may be unable to do so in the exercise of some of their functions as a result of the issue I have just set out.

These bodies perform a range of vital statutory functions using CD, including tackling breaches of sanctions regimes, enforcing the minimum wage and providing oversight of banking and financial markets. Schedule 4 to the IPA provides a list of public authorities that can acquire CD under Part 3 of the Act. The new definition of public authorities inserted by this clause will apply in the context of the sharing of CD between public authorities. This will include government departments and their arm’s-length bodies, and executive agencies administering public services. While data sharing between government entities is covered under other legislation including the Data Protection Act and GDPR, or under separate data-sharing agreements, its sharing for legitimate purposes should not be discouraged or prevented by the IPA.

Clause 13 is needed to ensure that such bodies can continue to fulfil these existing statutory duties in the context of a world that takes place increasingly online. It strikes an appropriate balance between necessity and proportionality. In particular, I re-emphasise that it makes clear that the acquisition by these regulatory bodies should be only in support of their civil and regulatory functions, and not used in support of criminal prosecutions. Furthermore, the Government have retained the serious crime threshold that applies when acquiring CD for the purposes of a criminal prosecution.

The codes of practice will also provide additional safeguards and clarity on how this should work in practice. The Government published these in draft ahead of Committee to illustrate this. Any changes to the existing codes will be subject to statutory consultation before being made and will require approval from Parliament under the affirmative procedure. I am therefore confident that the changes will be subject to a high level of scrutiny. To be clear, this applies to a limited cadre of public authorities with the necessary statutory powers conferred on them by Parliament and only specifically when in support of regulatory and supervisory functions—it is not creating a way to circumvent the safeguards in the IPA. It ensures that the acquisition routes and associated strong oversight by the Investigatory Powers Commissioner are reserved for those areas where it is most essential and has the most serious potential consequences in terms of criminal prosecutions.

I am happy to provide the reassurance—or I hope I am—that the noble Lord, Lord Anderson, sought. I am grateful to him for his comments regarding government Amendment 14, for engaging with officials to work through the concerns they raised and for his generous comments about the officials.

Our view is that the amended Clause 12 will be narrower in scope than the original drafting, which carried a risk of permitting access beyond the “who” and “where” of an entity. I assure noble Lords that the codes of practice will set out the further safeguards and details on the practical effect of Clause 12 so that operational partners are clear on the lawful basis of CD acquisition. It is appropriate that the technical detail is set out in this way rather than in primary legislation. The codes of practice will be subject to a full public consultation and will be laid in Parliament under cover of an SI, via the affirmative procedure. I reassure the noble Lord that we will consult with partners and the regulators of the IPA to ensure that the high standards of the CD acquisition regime remain world leading. I am happy to continue this conversation, and for my officials to continue with the extensive engagement already undertaken with the users of the CD powers, to see whether any further refinement is needed.

Finally, I confirm that the intention behind the amendment is to include the type of subscriber data that is necessary to register for, or maintain access to, an online account or telecommunication service. Examples of such data would include name, address and email address. It is not intended to include all types of data that an individual might give a telecommunication service that is not necessary for the purpose of maintaining or initiating access to that service.

I turn to Amendments 17, 19 and 20 on internet connection records, also tabled by the noble Lord, Lord West. Much of the argument I have heard relies on a perception that the new condition D is inherently more intrusive than the existing conditions B and C. I will set out why this is not the case.

The safeguards for the new condition D replicate the well-established and extensive safeguards already in place for CD authorisations. The authorisation process for CD varies according to the purpose for which the data is being sought and the type of CD to be acquired. This regime works effectively and has been considered by the Court of Appeal and found to be lawful.

The purpose of new condition D is to enable ICRs to be used for target detection, which is currently not possible under existing Part 3 authorisations. The level of appropriate oversight and safeguards is linked to the sensitivity of the data to be disclosed and the impact that disclosure may have on the subject of interest.

As I have said, the Government do not believe that condition D is inherently more intrusive than conditions B or C. Conditions B and C authorise “target development” work, and as such enable the applicant to request data on a known individual’s internet connections. As an example, this means that the NCA could request records of the connections a known subject of interest has made in a given time period, provided that request was judged to be both necessary and proportionate by the Office for Communications Data Authorisations. In comparison, condition A enables the requesting agency to request who or what device has made a specific connection to an internet service.

Similarly, condition D would enable an agency to request details about who has used one or more specified internet services in a specified timeframe, provided it was necessary and proportionate—for example, accessing a website that solely provides child sexual abuse imagery. The actual data returned with condition D will most likely constitute a list of IP addresses or customer names and addresses. No information concerning any wider browsing that those individuals may have conducted will be provided. Information about that wider activity would be available only under a further condition B or C authorisation. Condition D is therefore no more intrusive than conditions B and C in terms of what data is actually disclosed. As such, we see no benefit or logic to imposing a different authorisation route for condition D when the existing safeguards have proven sufficient in terms of ICRs applications under conditions A, B and C.

I use this opportunity to remind all noble Lords of the importance of this new condition D and how it will support investigations into some of the most serious crimes, as well as supporting the critical work against both state and cyber threats. ICRs could be used to detect foreign state cyber activity. For examples, ICRs could be used to illuminate connections between overseas state actors and likely compromised UK infra- structure. We understand that these actors have an intent to target UK-based individuals and organisations, including government and critical national infrastructure, from within UK infrastructure, which we typically would not see. The ICR data returned from TOs would be highly indicative of the extent of malicious infrastructure and could assist with victim exposure. Furthermore, improved access to ICR data would enable the National Cyber Security Centre to detect such activity more effectively and in turn inform incident management and victims of compromises. Using data to flag suspicious behaviour in this way can lead to action to protect potential UK victims of foreign espionage and attacks.

I now turn specifically to the ability of the intelligence agencies and the NCA to internally authorise condition D applications. The intelligence agencies and the NCA must obtain approval from the Investigatory Powers Commissioner for ICR applications for the purpose of preventing or detecting serious crime, other than in urgent circumstances. In urgent circumstances, such as threat to life or serious harm to an individual, the intelligence agencies and the NCA are able to obtain CD authorisations from internal designated senior officers in the same way that police forces are. In practice, the volumes of non-urgent requests are such that the IPC delegates responsibility for the authorisation of ICR and other CD requests to the OCDA.

In terms of oversight, the IPC could, if he wished to, consider specific types of CD authorisations himself. The IPC also has the power to directly inspect any part of the CD regime. If he wishes to focus attention on condition D applications, he has the necessary powers to do so. The approach we have adopted for condition D authorisations is therefore consistent with the wider CD regime and gives the IPC flexibility in how he exercises his powers and resources.

As is also consistent with the wider CD regime, condition D applications relating to national security will be authorised by a designated senior officer within the intelligence agencies. The CD codes of practice state that the designated senior officer must be independent of the operation and not in the line management chain of the applicant. This independence is declared within each application, and each designated senior officer completes training prior to taking up this role. Furthermore, each agency has one or more single point of contact officer, accredited by the Home Office and the College of Policing, who facilitates lawful acquisition of CD.

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Lords, Lord Ponsonby and Lord Fox, for their remarks in this debate. I reassure the noble Lord, Lord Fox, that any cheek-blowing he witnessed was more a reflection of the previous marathon speech than a reflection on his amendments.

Amendment 21, moved by the noble Lord, Lord Fox, would require that the enforcement of data retention notices—DRNs—would apply only to UK recipients of those notices. DRNs and technical capability notices—TCNs—can be given to a person overseas, but only TCNs are currently enforceable overseas. Clause 16 seeks to amend Sections 95 and 97 of the IPA to allow the extraterritorial enforcement of DRNs in order to strengthen operational agility when addressing emerging technology, bringing them in line with TCNs. It is vital to have this further legal lever, if needed, to maintain the capabilities that the intelligence agencies need to access the communications data they need to, in the interests of national security and to tackle serious crime.

The Government therefore oppose Amendment 21 as it goes fundamentally against what the Government are seeking to achieve through Clause 16 and would not provide any additional clarity to telecommunications operators. As DRNs are already enforceable against UK recipients, there is no need to re-emphasise that in the Bill.

I turn to the amendments to Clause 17 concerning the notice review period. This clause is vital to ensure that operators do not make changes that would negatively impact existing lawful access while a notice is being comprehensively reviewed. Maintaining lawful access is critical to safeguard public safety, enabling law enforcement and the intelligence community to continue protecting citizens during the review period.

Let me be clear: operators will not be required to make changes during the review period to specifically comply with the notice. Rather, under Clause 17 they will be required to maintain the status quo so that law enforcement and intelligence agencies do not lose access to any data that they would have been able to access previously. The review process is an important safeguard, and that right of appeal will remain available to companies.

On Amendment 27, tabled by the noble Lord, Lord Fox, the Government have noted the strength of feeling from parliamentarians and industry regarding the current uncertainty over the timeframe for conducting a review of a notice. We have therefore tabled Amendments 26, 32 and 33 to Clause 17 to address that uncertainty and provide further clarity and assurances regarding the notice review process.

The existing powers within Sections 90 and 257 of the IPA do not give the Secretary of State the power to specify in regulations the time period within which a review of a notice must be completed. The Government are therefore introducing a new regulation-making power to enable the Secretary of State to specify in regulations the length of time the Secretary of State can take to reach a decision on the review of a notice upon receipt of the report by the judicial commissioner and the Technical Advisory Board, and the overall length of time that a review can take.

The amendments will also make provision for a judicial commissioner to issue directions to the Secretary of State and the person seeking the review, as they see fit, to ensure the effective management of the review process. That will give the judicial commissioner the power to issue directions to both parties, specifying the time period for providing their evidence or making representations, and the power to disregard any submissions outside those timelines. These amendments will provide operators the certainty they require regarding how long a review of a notice can last, and therefore how long the status quo must be maintained under Clause 17. They will also provide further clarity on the process and management of that review.

Specifying timelines will require an amendment to the existing regulations concerning the review of notices. The Government commit to holding a full public consultation before the amendment of those regulations and the laying of new regulations relating to Clause 20, which provides for the introduction of the notification notices. Representations received in response will be considered and used to inform both sets of regulations, which we have clarified in the Bill are subject to the affirmative procedure.

Amendment 35, tabled by the noble Lord, Lord Fox, seeks to specify in statute who the Secretary of State must consult before laying regulations relating to Clause 20 and the introduction of notification notices, and the factors that the Secretary of State must have regard to when making those regulations. I hope the commitment that I have just made to hold a full public consultation provides the necessary reassurance to the noble Lord that all relevant persons will be consulted before making the regulations, and that he will agree that is it unnecessarily prescriptive, and potentially restrictive, to put such details in the Bill.

Amendments 22, 25, 28 and 31, also tabled by the noble Lord, Lord Fox, seek to limit the extraterritoriality of Clause 17 and ensure that operators can make changes to their services and systems for users in other jurisdictions during a review. To be clear, the Bill as currently drafted means that companies can make changes to their services during a review. They could choose to roll out new technologies and services while the review is ongoing, including in other jurisdictions, so long as lawful access is built into them as required to maintain the status quo. Furthermore, the status quo will apply only to whichever of their systems and services are covered by the notice in question. Naturally, anything outside the scope of the notice is unaffected by the requirement. I also emphasise that the control of telecommunications systems used to provide telecommunications services in the UK does not stop at borders, and it is highly likely that any such arbitrary geographical limitations would in fact be unworkable in practice.

Amendments 23, 24 and 29 seek to raise the threshold with regard to relevant changes that an operator must not make during a review period to a change that would “substantially limit” their ability to maintain lawful access. This would not make the position any clearer as “substantially” is a subjective test. Moreover, it would constrain Clause 17 in a way that would fundamentally prevent it from achieving its objectives: to ensure that the same level of lawful access available before the notice was issued is maintained during a review period.

Lawful access provides critical data to law enforcement and intelligence agencies. Constraining access to data that was previously available, in a limited capacity or substantially, may seriously undermine investigations and the ability to protect our citizens. It is therefore vital that the status quo is maintained during the review period. It would also be difficult to define “substantially limit” without referring to a “negative effect on” a capability.

Amendments 36 to 38 to Clause 20, also spoken to by the noble Lord, Lord Fox, seek to raise the threshold and provide more proportionality. As I have emphasised on every occasion we have debated the Bill, necessity and proportionality constitute a critical safeguard that underpins the IPA. Authorisations are approved by an independent body and all warrants and notices must be approved by a judicial commissioner. There is considerable oversight of authorisations, meaning that the threshold is already high. Necessity and proportionality justifications are considered for every request for a notice, warrant or authorisation and, by extension, whether it is reasonable to issue that request to the operator. Once operators are in receipt of such a request, they are required to provide assistance. The proposed amendments are therefore not required.

Finally, government Amendment 34 is a consequential amendment necessitated by the introduction of Clause 19, which amends the functions of a judicial commissioner to include whether to approve the renewal of certain notices.

I am grateful to all noble Lords who have spoken in this debate—

[Lord Fox (LD)]

Before the Minister sits down, winding back to the point about territoriality, he spoke of national boundaries as being arbitrary. It would help me to understand what kind of activity the Government envisage reaching across those boundaries, which he refers to as arbitrary; in other words, what would the Government be seeking to do extraterritorially?

[Lord Sharpe of Epsom (Con)]

If it would help, I am happy to write to the noble Lord with some sensible and practical scenarios because I do not think it is appropriate to make them up at the Dispatch Box, if that is acceptable.

I was just about to thank the noble Lord for the time he has taken to talk me through his concerns ahead of Report and at various other stages of the Bill on various other issues. However, I hope that I have provided reassurances through my comments at the Dispatch Box and the government amendments that we have tabled. I therefore invite the House to support these amendments and invite the noble Lord to withdraw Amendment 21 and not move the others he has tabled.

[Lord Fox (LD)]

I beg leave to withdraw the amendment.

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Moved by

[Lord Sharpe of Epsom]

26: Clause 17, page 35, line 18, at end insert—
“(b) in subsection (5)—(i) after “must” insert “, before the end of the review period,”;(ii) after “(1)” insert “(and accordingly decide what action to take under subsection (10))”;(c) after subsection (5) insert—“(5A) In subsection (5) “the review period” means—(a) such period as may be provided for by regulations made by the Secretary of State, or(b) if that period is extended by the Secretary of State in accordance with the regulations (see subsection (14)), such extended period.”(d) after subsection (9) insert—“(9A) The Commissioner may give a direction to the operator concerned or the Secretary of State specifying the period within which the operator or the Secretary of State (as the case may be) may provide evidence, or make representations, in accordance with subsection (9)(a).(9B) If the Commissioner gives such a direction to the operator or the Secretary of State, the Board and the Commissioner are not required to take into account any evidence provided, or representations made, by the operator or the Secretary of State (as the case may be) after the end of that period.”;(e) in subsection (10)—(i) for “may” substitute “must”;(ii) after “Commissioner” insert “but before the end of the relevant period, decide whether to”;(f) after subsection (11) insert—“(11A) In subsection (10) “the relevant period” means—(a) such period as may be provided for by regulations made by the Secretary of State, or (b) if that period is extended by the Secretary of State in accordance with the regulations (see subsection (15)), such extended period.”(g) after subsection (13) insert—“(14) Regulations under subsection (5A)(a) may include provision enabling any period provided for by the regulations to be extended by the Secretary of State where the extension is agreed by the Secretary of State, the telecommunications operator concerned and a Judicial Commissioner.(15) Regulations under subsection (11A)(a) may include provision enabling any period provided for by the regulations to be extended by the Secretary of State—(a) where the Secretary of State considers that there are exceptional circumstances that justify the extension, or(b) in any other circumstances specified in the regulations.(16) Where regulations under subsection (11A)(a) include provision mentioned in subsection (15), the regulations must also include provision requiring the Secretary of State to notify a Judicial Commissioner and the telecommunications operator concerned of the duration of any extended period.””Member's explanatory statement
This amendment enables the Secretary of State to make regulations, and a Judicial Commissioner to give a direction, setting time limits in connection with reviews carried out under section 90 of the Investigatory Powers Act 2016 (review of retention notices).

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Moved by

[Lord Sharpe of Epsom]

32: Clause 17, page 35, line 41, at end insert—
“(b) in subsection (4)—(i) after “must” insert “, before the end of the review period,”;(ii) after “(1)” insert “(and accordingly decide what action to take under subsection (9))”;(c) after subsection (4) insert—“(4A) In subsection (4) “the review period” means—(a) such period as may be provided for by regulations made by the Secretary of State, or(b) if that period is extended by the Secretary of State in accordance with the regulations (see subsection (13)), such extended period.”(d) after subsection (8) insert—“(8A) The Commissioner may give a direction to the person concerned or the Secretary of State specifying the period within which the person or the Secretary of State (as the case may be) may provide evidence, or make representations, in accordance with subsection (8)(a).(8B) If the Commissioner gives such a direction to the person or the Secretary of State, the Board and the Commissioner are not required to take into account any evidence provided, or representations made, by the person or the Secretary of State (as the case may be) after the end of that period.”;(e) in subsection (9)—(i) for “may” substitute “must”;(ii) after “Commissioner” insert “but before the end of the relevant period, decide whether to”; (f) after subsection (10) insert—“(10A) In subsection (9) “the relevant period” means—(a) such period as may be provided for by regulations made by the Secretary of State, or(b) if that period is extended by the Secretary of State in accordance with the regulations (see subsection (14)), such extended period.”(g) after subsection (12) insert—“(13) Regulations under subsection (4A)(a) may include provision enabling any period provided for by the regulations to be extended by the Secretary of State where the extension is agreed by the Secretary of State, the person concerned and a Judicial Commissioner.(14) Regulations under subsection (10A)(a) may include provision enabling any period provided for by the regulations to be extended by the Secretary of State—(a) where the Secretary of State considers that there are exceptional circumstances that justify the extension, or(b) in any other circumstances specified in the regulations.(15) Where regulations under subsection (10A)(a) include provision mentioned in subsection (14), the regulations must also include provision requiring the Secretary of State to notify a Judicial Commissioner and the person concerned of the duration of any extended period.””Member's explanatory statement
This amendment enables the Secretary of State to make regulations, and a Judicial Commissioner to give a direction, setting time limits in connection with reviews carried out under section 257 of the Investigatory Powers Act 2016 (review of national security and technical capability notices).

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Moved by

[Lord Sharpe of Epsom]

34: Clause 19, page 37, line 25, at end insert—
“(4A) In section 229 (main oversight functions), in subsection (8)(e)(i), for “or varying” substitute “, varying or renewal”.”Member's explanatory statement
This amendment is consequential on clause 19(4) and (6) (renewal of notices). It inserts into section 229 of the Investigatory Powers Act 2016 (main oversight functions) a reference to the Investigatory Powers Commissioner deciding whether to approve the renewal of certain notices.

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[Lord Coaker (Lab)]

My Lords, I do not have much to add to the debate. From these Benches, we fully support the amendments proposed by the noble Lord, Lord West, and the excellent way in which he presented them. They have the support of the whole ISC, which in this respect has done a great service to us all in taking forward the discussion. These amendments certainly improve the Bill.

The point that the noble Lord, Lord West, made is exceptionally important—the fact that this has to be in the Bill, and that we need it to guide us in how we take this forward. For those who read our proceedings, it is important to repeat that what we are discussing here is the interception of communications of parliamentarians, and the fact that the triple lock was introduced to give additional protection to that. The role of the Prime Minister becomes crucial in that, for obvious reasons.

I join others in thanking the noble Lord, Lord Anderson, for the way in which he has presented his arguments, and the discussions and debates that have gone on in this Chamber and outside it. He has done a great service to all of us by tabling what seems on the face of it a simple amendment—simply changing one word, from “unavailable” to “unable”—but is actually of huge significance. We have concerns about it, which we have expressed in this Chamber and elsewhere— indeed, the noble Lord, Lord West, explained them. Notwithstanding the remarks of the noble Lord, Lord Carlile, and others, we are worried about where it takes us with respect to conflicts of interest, and who decides that there is a conflict of interest for the Prime Minister in circumstances in which the Prime Minister themself does not recognise that there is a conflict of interest. I agree with the noble Lord, Lord Anderson, and others, that there may be a need for this discussion to continue—but who decides whether the Prime Minister has a conflict of interest, if the Prime Minister themself does not recognise that, is an important discussion to have. In the end, the system rests on the integrity of the Prime Minister.

The way in which the ISC has tried to bring forward some conditions to what “unavailable” means is extremely important, and we support that, as indeed we support the amendments that try to ensure that those who take decisions are those various Secretaries of State who may be designated under the Bill to take decisions, should the Prime Minister be unavailable. It is extremely important for those Secretaries of State to have experience of the use of those warrants. Again, the amendments proposed by the noble Lord, Lord West, deal with that, and we are very happy to support them.

[Lord Sharpe of Epsom (Con)]

My Lords, I offer my thanks to the noble Lords, Lord Anderson of Ipswich, Lord Fox, and Lord West of Spithead, and the noble and learned Lord, Lord Hope of Craighead, for their amendments and for the points that they have raised during this debate. I also thank the noble Lord, Lord Evans, for his perspective, and the noble Lord, Lord Carlile, for supporting the Government, which obviously I hope becomes a habit.

I have discussed the triple lock at length with noble Lords and many others in Parliament and across government. We are all in agreement that this is a matter of the utmost importance, and it is imperative that we ensure that the triple lock operates correctly. That means that the triple-lock process, when needed urgently, has the resilience to continue in the most exceptional circumstances, when the Prime Minister is genuinely unavailable, while ensuring that the alternative approvals process is tightly and appropriately defined.

On Amendment 40, I thank the noble Lord, Lord Anderson, for the valuable engagement he has taken part in with my ministerial colleagues, Home Office officials and me regarding this amendment. I take this opportunity to explain why the Government do not support this amendment. The expressed intention of the noble Lord’s amendment is twofold: first to tighten the requirement in the current clauses, which use the word “unavailable”; and, secondly, to introduce a potential provision for dealing with a conflict of interest, as one of the circumstances in which the alternative approvals process could be used.

There is certainly merit in limiting the circumstances in which the alternative approvals process may be used. However, the noble Lord’s amendment introduces the requirement for a judgment to be made on the Prime Minister’s ability to consider a warrant application, for any number of reasons, including conflict of interest. This raises a number of challenges.

The first challenge is that “unable” draws into the legislation the principle of ministerial conflict of interest. This poses a constitutional tension and a challenge to Cabinet hierarchy. The inclusion of “unable” would allow for someone other than the Prime Minister to decide whether the Prime Minister is subject to a conflict of interest in a particular scenario, which goes against clear constitutional principles regarding the Prime Minister’s powers. This would be a subjective decision on the Prime Minister’s ability, rather than an objective decision on his availability.

As such, rather than strengthening the current drafting, the amendment as proposed could be considered to constitute a watering down of the triple lock, in that it was always designed to be exercised by the Prime Minister. Someone else making a decision about whether the Prime Minister is able to make a decision, given they can be said to be available and therefore technically able to consider an application, risks the intention of the triple lock. As drafted, the original clauses require a binary decision to be made about whether the Prime Minister is available or not, whereas, in deciding whether the Prime Minister may have a conflict of interest, a judgment must be made which is not binary and therefore has much less legal clarity.

The noble Lord, Lord Anderson, asked me if it is right that the Government believe that it is proper for the Prime Minister to consider a warrant application relating to the Prime Minister’s own communications. The best answer I can give is that the Bill is intended not to tackle issues relating to Prime Ministerial conflicts of interest, but rather to improve the resilience of the warrantry process. Conflict of interest provisions and considerations relating to propriety and ethics are therefore not properly for consideration under this Bill. The Prime Minister is expected, as are all Ministers, to uphold the Nolan principles in public life. For these reasons, the Government cannot support this amendment.

The Government have, however, recognised the concerns expressed by Members of both Houses, and the seeming consensus that a more specific, higher bar should be set with relation to the circumstances in which the alternative approvals process may be used. This high bar is of particular importance because of the seriousness of using these capabilities against Members of relevant legislatures. We accept that we are not above the law and it is appropriate for it to be possible for us to be subject to properly authorised investigatory powers. However, it is right that the significance that this issue was given in the original drafting of the Investigatory Powers Act is respected, and the communications of our fellow representatives are properly safeguarded.

I therefore thank the noble Lord, Lord West of Spithead, for his amendments, and for the close engagement on this Bill which I, the Security Minister and my officials have had with the members and secretariat of the Intelligence and Security Committee. Following engagement with Members of both Houses on these amendments, it is clear that there is good consensus for these measures, and the Government will not be opposing them today. While they will reduce the flexibility of the current drafting somewhat, the Government agree that these amendments strike an important and delicate balance between providing the flexibility and resilience that the triple-lock process requires, while providing the legal clarity and specificity to allow for its effective use. The amendments will also provide further confidence to members of relevant legislatures, including those of this House, that the protection and safeguarding of their communications is of paramount importance.

I should note that the Government do not quite agree with the precise drafting of these amendments, and we expect to make some clarifications and improvements in the other place, particularly to the references to routine duties under Sections 19 and 102 of the Investigatory Powers Act 2016, but I am happy that we seem to have reached broad agreement today.

[Lord West of Spithead (Lab)]

I just want to be clear, as I have never had an amendment accepted in 14 years —is the Minister saying that the Government accept my Amendments 39 and 41?

[Lord Sharpe of Epsom (Con)]

Yes. The noble Lord, Lord Fox, says, “Don’t get too excited”, and he is right.

I now turn to the government amendment in this group, Amendment 46. This proposed new clause amends the Investigatory Powers Act’s bulk equipment interference regime to ensure that sensitive journalistic material gathered through bulk equipment interference is subject to increased safeguards. Currently, Section 195 of the IPA requires that the Investigatory Powers Commissioner be informed when a communication containing confidential journalistic material or sources of journalistic material, following its examination, is retained for any purpose other than its destruction.

This amendment introduces the need for independent prior approval before any confidential journalistic material or sources of journalistic material are selected, examined, and retained by the intelligence agencies. It also introduces an urgency process within the new requirement to ensure that requests for clearance to use certain criteria to select data for examination can be approved out of hours.

The Government recognise the importance of journalistic freedom and are therefore proactively increasing the safeguards already afforded to journalistic material within the IPA. In doing so, we are also bringing the IPA’s bulk equipment interference regime into alignment with bulk interception, which is being amended in the same way through the Investigatory Powers Act 2016 (Remedial) Order 2023; that is being considered in the other place today.

In wrapping up, I once again thank noble Lords for the constructive engagement we have had on the Bill, singling out in particular the noble Lords, Lord Anderson, Lord West, Lord Coaker and Lord Fox. With that, I hope that noble Lords will support the Government’s amendment.

[The Deputy Chairman of Committees (Lord Beith) (LD)]

If Amendment 39 is agreed to, I cannot call Amendment 40 by reason of pre-emption.

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Moved by

[Lord Sharpe of Epsom]

46: After Clause 25 insert the following new Clause—
“Bulk equipment interference: safeguards for confidential journalistic material etc(1) The Investigatory Powers Act 2016 is amended as follows.(2) For section 195 (additional safeguard for confidential journalistic material) substitute—“195 Additional safeguards for confidential journalistic material etc (1) Subsection (2) applies if, in a case where material obtained under a bulk equipment interference warrant (“BEI material”) is to be selected for examination—(a) the purpose, or one of the purposes, of using those criteria to be used for the selection of the BEI material for examination (“the relevant criteria”) is to identify any confidential journalistic material or to identify or confirm a source of journalistic information, or(b) the use of the relevant criteria is highly likely to identify confidential journalistic material or identify or confirm a source of journalistic information.(2) The BEI material may be selected for examination using the relevant criteria only if the use of those criteria has been approved by—(a) the Investigatory Powers Commissioner, or(b) in a case where a senior official acting on behalf of the Secretary of State considers there is an urgent need to do so, the senior official.(3) The Investigatory Powers Commissioner or a senior official may give an approval under subsection (2) only if the Commissioner or official considers that—(a) the public interest in obtaining the information that would be obtained by the selection of the BEI material for examination outweighs the public interest in the confidentiality of confidential journalistic material or sources of journalistic information, and(b) there are no less intrusive means by which the information may reasonably be obtained.(4) Subsection (5) applies where—(a) material obtained under a bulk equipment interference warrant (“the relevant material”) is retained, following its examination, for purposes other than the destruction of the relevant material, and(b) the person to whom the warrant is addressed considers that the relevant material contains confidential journalistic material or material that would identify or confirm a source of journalistic information.(5) The person to whom the warrant is addressed must inform the Investigatory Powers Commissioner of the retention of the relevant material as soon as reasonably practicable.(6) Unless the Investigatory Powers Commissioner considers that subsection (8) applies to the relevant material, the Commissioner must direct that the relevant material is destroyed.(7) If the Investigatory Powers Commissioner considers that subsection (8) applies to the relevant material, the Commissioner may impose such conditions as to the use or retention of the relevant material as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of confidential journalistic material or sources of journalistic information.(8) This subsection applies to material containing—(a) confidential journalistic material, or(b) material identifying or confirming a source of journalistic information,if the public interest in retaining the material outweighs the public interest in the confidentiality of confidential journalistic material or sources of journalistic information.(9) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsections (6) and (7), and(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)). (10) “Affected party” has the meaning given by section 194(14).(For provision about the grounds for retaining material obtained under a warrant, see section 191.)195A Section 195: procedure where use of criteria approved by senior official(1) This section applies where material obtained under a bulk equipment interference warrant is selected for examination using criteria the use of which was approved by a senior official under section 195(2).(2) The Secretary of State must, as soon as reasonably practicable, inform the Investigatory Powers Commissioner that the approval has been given.(3) The Investigatory Powers Commissioner must, as soon as reasonably practicable—(a) consider whether the relevant condition is met as regards the use of the criteria for the selection of the material for examination, and(b) notify the Secretary of State of their decision.(4) For this purpose, “the relevant condition” is that—(a) the public interest in obtaining the information that would be obtained by the selection of the material for examination outweighs the public interest in the confidentiality of confidential journalistic material or sources of journalistic information, and(b) there are no less intrusive means by which the information may reasonably be obtained.(5) On the giving of a notification of a decision that the relevant condition is not met, the senior official’s approval ceases to have effect.(6) Nothing in subsection (5) affects the lawfulness of—(a) anything done by virtue of the approval before it ceases to have effect, or(b) if anything is in the process of being done by virtue of the approval when it ceases to have effect—(i) anything done before that thing could be stopped, or(ii) anything done which it is not reasonably practicable to stop.”(3) In section 229 (main oversight functions), in subsection (8), before paragraph (g) insert—“(fb) deciding whether—(i) to approve the use of criteria under section 195(2)(a),(ii) subsection 195(8) applies for the purposes of subsection 195(6) and (7),(iii) the relevant condition is met for the purposes of subsection 195A(3)(a).””Member's explanatory statement
This amendment replaces section 195 of the Investigatory Powers Act 2016 with new sections 195 and 195A which include additional protections in relation to confidential journalistic material and sources of journalistic material.

Asylum: UK-Rwanda Agreement

Lord Sharpe of Epsom Excerpts

Monday 22nd January 2024 Lords Chamber

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

My Lords, I am grateful for this debate and all the contributions that have been made.

The Rwanda partnership and the treaty underpinning it, providing its foundations, if you will, is critical to the Government’s plan to establish an effective deterrent to dangerous crossings and to stop the boats. It is a topic that has been closely scrutinised in the weeks since the Supreme Court judgment, and I have little doubt that that will continue to be the case in the days and weeks ahead. That is not to say that this debate has any less merit. On the contrary, it has been instructive and insightful to have the committee’s report brought to life.

I will address the various issues that noble Lords have raised today and respond to some of the conclusions in the committee’s report and to the Motion moved by the noble and learned Lord, Lord Goldsmith, although I recognise that my time here is limited.

First, it is worth taking a moment to remind the House of what this policy is trying to achieve and its journey to this point. The UK has a track record of providing protection to those most in need of it through our safe and legal routes, with over half a million people coming to the UK in this way since 2015. We are rightly proud of that, but we also need to be clear that illegal migration diverts resources away from the effort to help the world’s most desperate and vulnerable people through safe and legal routes.

In short, the Rwanda partnership was created to enhance the UK’s efforts to tackle illegal migration, which is costly to the British taxpayer and imperils the lives of those making highly dangerous journeys. Our innovative approach goes hand in hand with our existing wider work across Europe and elsewhere, which has seen many thousands of crossings prevented and the number of arrivals fall by more than a third.

The noble Lords, Lord Fox and Lord Razzall, and the noble Baroness, Lady Lister, asked about the deterrent effect. The partnership is just one tool in our toolbox to tackle illegal migration, but we are making progress with our mission. As I said, the number of arrivals were down by a third—the first year that numbers have dropped since this problem started—while crossings to other European countries are up by 80%.

But we must go further: to fully solve this problem, we need a strong deterrent. As our work with the Albanian Government shows, deterrence works, and I thank the noble Lord, Lord Alton, for acknowledging that. Only by removing the prospect that illegal migrants can settle in the UK can we control our borders and save lives at sea—by sending the clear message that if you try to come here illegally and have no right to stay here, you will be returned home or removed to a safe third country. This will break the business model of the trafficking and smuggling gangs by removing the ability to sell entry into the UK. Of course, the deterrent effect of the MEDP will be fully realised once it becomes operational.

We are also taking action to crack down on the mafia-like criminal gangs, as the noble Lord, Lord Alton, described them, which prey on those seeking to cross the channel. That work continues, particularly in collaboration with the French. But this is also a comprehensive strategy, and we have to build on the progress we have made, which is where the Rwanda partnership comes in.

Noble Lords are well aware of the journey this policy has taken through the courts. We know the underlying principle of the policy—to relocate eligible individuals from the UK to a safe third country to have their asylum claims determined there—to be lawful and compliant with the refugee convention; the Supreme Court did not disturb the lower courts’ finding on that point. The IAC’s inquiry focused on how the agreement we now have protects those relocated to Rwanda and whether it deals with the concerns raised by the Supreme Court.

It is not right to say we have made these changes “notwithstanding” the Supreme Court; we respect the court and the rule of law. It is because of the Supreme Court’s judgment that we have made these changes. Having considered evidence submitted only up to summer 2022, the Supreme Court recognised changes that could be made to address its findings, improve the Rwandan asylum system and strengthen assurances. Significant and successful work has taken place with Rwanda since the time of that evidence to do just that.

The treaty does not override the court’s judgment; rather, it responds to it. And these are not “alternative facts”, as alleged by the noble Lord, Lord Purvis. It is perfectly constitutionally appropriate for Parliament to consider the protections we have secured and conclude that Rwanda will be safe for the purposes of asylum. Through the treaty, and associated work highlighted in the policy statement, we have addressed every point of the Supreme Court judgment.

I will highlight just some of the provisions of the treaty. There is a full package of support available for all those relocated, regardless of their eventual status. Everyone relocated will be accommodated and supported for five years, as long as they remain, so that they can study, undertake training and work. They will also have access to free healthcare for this time. Steps are being taken to further strengthen Rwanda’s asylum system, and a new appeals body is being introduced. New legislation is being developed in Rwanda to reflect the necessary changes to strengthen the asylum system, to fulfil their obligations and ensure all those relocated are protected. The appeal body will be co-chaired by one Rwandan and one other Commonwealth judge, who will select a panel of judges from a mix of nationalities to hear these appeals against refusals of asylum or humanitarian protection claims. For at least the first 12 months, the appeal body shall receive and take into account advice from independent asylum and humanitarian protection law experts before determining the appeal, and this expert opinion will be published. The establishing of the new appeals process ensures that the final determination of an asylum claim will be objective and independent, and this level of transparency makes clear our and Rwanda’s commitment to getting this right.

Crucially, there is absolutely no risk of refoulement for anyone relocated, regardless of status or circumstance, because the treaty is clear that under no circumstances will refoulement take place. The enhanced independent monitoring committee will have unfettered access to the entire system in order rigorously to assess both countries’ adherence to these obligations under the treaty.

I was asked a number of questions about the monitoring committee, which I will address. Before I go back to those, I point out that, regarding the appeals body, I did not talk about the tracking mechanism. I will come back to that, because nobody will be relocated without the necessary mechanisms for their protection being in place, in terms of the independent monitoring committee.

We have addressed explicitly the risk of refoulement through the treaty, which contains an undertaking from the Government of Rwanda that they will not remove anybody who has transferred from the UK to Rwanda. The treaty also enhances the role of the independent monitoring committee, as I have just said. Article 15 makes specific provision that enhanced monitoring will take place for a minimum of three months from the date the individual is notified that they are being relocated. The monitoring committee will ensure that obligations under the treaty are adhered to in practice and will be able to take steps to prevent errors at an early stage through real-time monitoring. The monitoring committee will provide real-time comprehensive monitoring, with an initial period of enhanced monitoring over the end-to-end relocation and claims process to ensure compliance with treaty obligations.

The monitoring committee will have the power to set its own priority areas for monitoring. It will have unfettered access for the purposes of completing assessment reports. It can monitor the entire relocation process from the beginning, from the initial screening to relocation and settlement in Rwanda. It will be responsible for developing a system to enable relocated individuals and legal representatives to lodge confidential complaints directly to the committee and will undertake real-time monitoring of the partnership for at least the first three months, but this can be extended. Then the monitoring committee will report on its findings to the joint committee and, following notification to the joint committee, it may publish reports as it sees fit.

These are significant protections, and they have been agreed in an internationally, legally binding treaty which the UK and Rwanda will abide by.

[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for giving way. He has been very helpful, as he usually is. He has been going through the 10 items in paragraph 45, but he has not given a timeline for any of them. Will he give us a timeline for when those 10 items will be completed and an undertaking that nobody will be taken to Rwanda until they have all been completed and implemented?

[Lord Sharpe of Epsom (Con)]

If the noble Lord will indulge me, I have a long way to go and I hope to get to all of his questions.

To question the treaty’s effect is to question both parties’ commitment to the rule of law, so I am grateful to my noble friends Lord Howell, Lord Sandhurst and Lord Wolfson, who made some very good points on this. I was sorry, but not particularly surprised, to hear the noble Baroness, Lady Bennett, cast aspersions in the direction of Rwanda.

Again, I thank the IAC for its report, to which we will respond in writing as a priority; but I must be clear that the Government intend to see the conventional Constitutional Reform and Governance Act process through to the end, as normal. The Government recognise the intent behind the Motion, but we believe it is unnecessary and misguided. The Motion in question is completely unprecedented, as the noble and learned Lord, Lord Goldsmith, noted, and, with all due and sincere respect to the noble and learned Lord, a mischaracterisation of the process. It is unnecessary as it is completely usual for Parliament to complete its scrutiny of a treaty and for the CRaG process to end before a treaty has been implemented. In just one example of this, the free trade agreements that the UK signed with Australia and New Zealand in 2021 and 2022 were laid before Parliament for scrutiny, and in both cases legislative changes were required to implement the obligations in the agreements; those changes were introduced in parallel. The scrutiny debates happened and the CRaG process ended long before those treaties were implemented. The implementing primary and secondary legislation measures were put in place and the treaties were brought into force in early 2023.

It is for any Government to decide, ahead of ratification of any treaty, whether the implementation required for the UK to be legally compliant with its treaty obligations has been duly put in place. I do not believe that the two debates should be confused, as they have been. We urge noble Lords to support the Government in their plans for the treaty to be implemented and ratified by both countries in due course. We have been clear throughout the development of this partnership that Rwanda and the UK must place the utmost importance on the safety of all those who are relocated. The mechanisms in place will ensure that both parties adhere to the obligations under the internationally legally binding treaty. It is vital that we stop the boats as soon as possible. The British people clearly do not want to see any further delay.

It would be remiss of me not to mention at this point the Safety of Rwanda (Asylum and Immigration) Bill, which will reach this House next week and ties in closely with what I have just said. This Bill sits above existing statutory provisions to enable Parliament to conclude that Rwanda is a safe country. The supporting evidence pack, which was released on 11 January, and the supporting policy statement, first given on 12 December, go into great detail concerning the information that gives us the confidence to say that Rwanda is safe. I look forward to noble Lords’ support for the Bill at Second Reading next week.

It is true that Parliament is being invited to conclude that Rwanda is safe based on this treaty and other matters, but that is not what is being debated today. We are debating whether there is anything in this treaty that means it should not be ratified, as my noble friend Lord Wolfson noted. The IAC has made some points about the treaty, but fundamentally it has not identified anything objectionable in the treaty itself. A debate on whether Parliament considers Rwanda safe is a debate that should and will happen in depth in the coming weeks as part of the scrutiny of the Bill. The IAC’s report concludes that the treaty might in time provide the basis for such an assessment—that is, that Rwanda is safe—if it is rigorously implemented. The Government’s position is that the treaty provides that basis, so we invite noble Lords to reject the Motion today and recognise that standard procedure should be followed. Once the treaty is ratified and the Bill passed, we can begin to operationalise the partnership.

I will now try to answer some of the more specific questions to do with the deterrence of the partnership. It was never about Rwanda or any other partner country being a hellhole, as described by the noble Lord, Lord Razzall, which I find quite offensive. It is about organised criminal gangs not being able to sell the UK as a destination. Only by removing the prospect that illegal migrants can settle in the UK can we control our borders and save lives at sea. By sending the clear message that if you try to come here illegally and have no right to stay here you will be returned home or removed to a safe third country we can break the business model of the trafficking and smuggling gangs.

The noble Lord, Lord Hannay, asked me about international comparisons as regards treaty scrutiny. The Government believe that 21 joint sitting days, which in parliamentary terms is likely to be a minimum of five weeks and often somewhat longer, is sufficient for Parliament to scrutinise a treaty. It is difficult to make comparisons between governmental systems, even with other parliamentary democracies, as each has evolved over time in line with its constitutional arrangements, which differ from one state to another. Each system reflects the constitutional make-up and separation of powers in that country. When similar parliamentary democracies are compared with ours, it is clear that our practice is in many respects similar to systems such as those of Canada, Australia and New Zealand. We consider that in many respects our system is in fact stronger than theirs, not least due to the existence in the UK of a statutory framework for treaty scrutiny.

The noble Lord, Lord Kerr, referred to the Supreme Court and Israel and the various comments that have been made about its agreement with Rwanda. We do not agree that it sets a relevant precedent or implies that Rwanda will not adhere to its obligations under our treaty. The terms of the arrangements between Israel and Rwanda are not available for scrutiny, are not transparent and are not monitored in the way that ours are. The scheme referenced was voluntary and open-ended and did not openly commit to guaranteed acceptance or a custodial role on the part of Rwanda. So on the information known, it bears little resemblance to the UK-Rwanda treaty and the lessons there are not directly applicable.

The noble Baroness, Lady Lister, asked a number of questions about children. Article 3 states:

“The Agreement does not cover unaccompanied children and the United Kingdom confirms that it shall not seek to relocate unaccompanied individuals who are deemed to be under the age of 18”.


The treaty does, however, provide for the relocation of children as part of a family. It should be noted that this does not constitute a policy change and is consistent with the principles of the extant memorandum of understanding. I urge those with family links in the UK to seek to come here via the existing safe and legal routes.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt but I asked specifically about age-disputed children, where the protections seem to be less than they were under the original memorandum of understanding.

[Lord Sharpe of Epsom (Con)]

I was just getting to that. As regards children where the age-assessment results are not conclusive, the Home Office will treat an individual claiming to be a child as an adult only after further inquiries by two officers, one of at least chief immigration officer grade or equivalent, have separately determined that the individual’s physical appearance and demeanour very strongly suggest they are significantly over 18 years of age.

The lawfulness of this process was recently fully endorsed by the Supreme Court in the case of BF (Eritrea) from 2021. If doubt remains about whether the claimant is an adult or a child, they are treated as a child for immigration purposes until a further assessment of their age by a local authority or the National Age Assessment Board. This will usually entail a careful holistic age assessment, known as a Merton-compliant age assessment. Only once this assessment is completed could the individual then be treated as an adult if found to be so.

Under the Illegal Migration Act, those wishing to challenge a decision on age will be able to do so through judicial review, although these challenges are non-suspensive and can continue from outside the UK after an applicant has been removed. The treaty provides for the return of anyone who is removed as an adult and later determined to be a child, and appropriate temporary care of such an individual.

A number of noble Lords have referred to the UNHCR report. The first thing to state is that the Government are not abdicating responsibilities, as alluded to by the UNHCR, and as suggested by the noble Lord, Lord Alton, and the noble Baroness, Lady Hayter. This is a partnership with Rwanda, helping to make the immigration system fairer and ensuring that people are safe and enjoying new opportunities to flourish.

As this Government have made clear, tackling the issue of illegal migration requires bold and innovative solutions, and our partnership with Rwanda offers that. Rwanda is a safe country that cares deeply about refugees and currently hosts over 130,000 asylum seekers. Indeed, the UNHCR has signed an agreement with the Government of Rwanda and the African Union to continue the operations of the emergency transit mechanism centre in Rwanda. By temporarily accommodating some of the most vulnerable refugee populations, who have faced trauma, detentions and violence, Rwanda has showcased its willingness and ability to work collaboratively to provide solutions to refugee situations and crises. This agreement has also attracted EU funding, which will support the continued operation of the ETM until 2026.

The Home Office has granted refugee status to nationals from Rwanda, as noted by the noble Lords, Lord Coaker, Lord Kerr and Lord Hannay, and the noble Baroness, Lady Lister. How then can we say Rwanda is safe? People from many different nationalities apply for asylum in the UK. They include nationals from some of our closest European neighbours and other safe countries around the world.

Each case is considered on its individual merits by caseworkers who receive extensive training. All available evidence is carefully and sensitively considered in light of published country information. Asylum decision-makers carefully consider everyone’s protection needs regardless of nationality by assessing all the evidence provided by the claimant, in light of the latest available country-of-origin information. Asylum claims made by persons from Rwanda will have an individual assessment made against the background of relevant case law, policy guidance and the latest available country-of-origin information. Paragraphs 339J and 339JA of the Immigration Rules require decision-makers to take into account all relevant country-of-origin information in making their decision.

The noble Lord, Lord Alton, and the noble Baroness, Lady Lawlor, asked about the Home Secretary and the signing of the Section 19(1)(b) human rights statement. This does not mean that the legislation is incompatible with the ECHR. It means that the Home Secretary cannot say that it is more likely to be compatible than not. That is the consequence of this being an ambitious and novel Bill, which is what is needed to fulfil our commitment to tackle the small boats. There is nothing improper or unprecedented about pursuing ambitious and innovative ways of solving such endemic issues as migration. We believe that it is lawful and we are acting in compliance with our international obligations.

The Supreme Court’s judgment was made on the basis of the facts in June 2022.

[Baroness O'Loan (CB)]

Before the Minister sits down, could he explain to your Lordships why, if the Government believe this Bill is lawful, the Minister is unable to say that it is lawful?

[Lord Sharpe of Epsom (Con)]

My Lords, I think I just did. I will go over it again. As I said, the Home Secretary, cannot say that it is more likely to be compatible than not. That is not the same as the question that the noble Baroness just asked me. This is the consequence of it being an ambitious and novel Bill. There is nothing improper or unprecedented about pursuing ambitious and innovative ways of solving such issues. We believe that it is lawful and we are acting in compliance with our international obligations.

The Supreme Court’s judgment was made on the basis of the facts in June 2022 when the case was brought. It made clear that, while it had concerns about the arrangements in place in June 2022, changes to safeguard against risks “may be delivered in the future”.

The UK’s treaty with Rwanda responds comprehensively to the court’s concerns. It provides a binding guarantee in international law against refoulement and provides guarantees about the treatment of relocated individuals in Rwanda. It reflects the work that we and the Rwandan Government have completed in the 18 months since June 2022 and, once ratified, it ensures that no one will be sent into a position where they would face a real risk of harm.

As the noble and learned Lord, Lord Goldsmith, noted, it is unprecedented for the House of Lords to place conditions on an international treaty in this way. Never in the history of the Constitutional Reform and Governance Act 2010 has either House forced a vote to try to delay the ratification of a treaty until its provisions have been implemented.

[Lord Carlile of Berriew (CB)]

I am sorry to be naggy, but I think the Minister got close to promising me an answer to my simple question about when, in relation to paragraph 5. Can we have that answer before he sits down?

[Lord Sharpe of Epsom (Con)]

The answer to the noble Lord, Lord Carlile, is when we have the treaty and the Bill, and the Rwandans have passed their laws. That is when.

As I was saying, this begs the question: is Labour using the House of Lords to try to frustrate our plan to stop the boats?

[Noble Lords]

Oh!

[Lord Sharpe of Epsom (Con)]

Last week the Prime Minister urged the Opposition in the House of Lords to get on board and do the right thing to stop the boats. They have a choice tonight: push this amendment to try to obstruct an effective deterrent or back down and let the treaty pass, like every time this procedure has been used before.

I offer thanks again to all who have participated. We must stop the boats. We must put an end to this mass trafficking of people and save lives. That is the humane and fair thing to do, and it is why we remain absolutely committed to delivering this partnership without delay.

Female Domestic Homicides: Black, Asian and Ethnic-minority Overrepresentation

Lord Sharpe of Epsom Excerpts

Monday 22nd January 2024 Lords Chamber

[Baroness Gohir (CB)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw attention to my interests in the register.

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

My Lords, domestic homicide is a horrific crime that disproportionately impacts women. The Home Office homicide index shows that 22% of the 249 female victims recorded between March 2020 and March 2022 were from minority-ethnic groups. These groups were overrepresented in domestic homicide data when compared to the 2021 census. Preventing domestic homicide is a key government priority, and we have set out commitments to reduce it in the Tackling Domestic Abuse Plan.

[Baroness Gohir (CB)]

My Lords, the Home Office funded a project in 2020 based in the vulnerability, knowledge and practice programme which confirmed that there is an overrepresentation of minority-ethnic women in domestic homicides rates—the rates may be higher because the police do not always record ethnicity data accurately. What follow-up has there been on that project? Will the Minister agree to holding a public consultation or an inquiry to uncover fully the contributing factors to safeguard black, Asian and minority-ethnic women and girls? Will he meet me to discuss that?

[Lord Sharpe of Epsom (Con)]

My Lords, I am short on the detail of that specific programme, but in March 2022, we published the cross-government Tackling Domestic Abuse Plan, which invested more than £230 million in tackling this crime between 2022 and 2025. This includes more than £140 million for supporting victims and £81 million for tackling perpetrators. As regards the domestic homicide review, work is under way to review, improve and update the statutory guidance on that review. The consultation on that is about to open, so if any Peers are interested and would like to get involved, please let me know and I will be happy to supply the details.

[Baroness Brinton (LD)]

My Lords, studies have shown that ethnic-minority survivors of domestic abuse are much less likely to have previously been known to the police than white victims, often because of a wish to protect their partner from police—rather than health interventions—because of institutional racism. What are the Government doing to ensure that all police are properly trained not to move to police intervention and to be able to signpost mental health support for all victims of domestic abuse?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Baroness asks a good question. We understand the importance of specialist services in providing the tailored support that victims and survivors of domestic abuse need. The Home Office is providing funding of more than £2 million to the London Community Foundation, Peterborough Women’s Aid, Diversity Matters North West and Sahara in Preston for the 2023-24 and 2024-25 financial years through the VAWG support and specialist services fund. This forms part of a programme called By and For, which is the Government’s commitment to provide specialist services that are led, designed and delivered by and for users and communities they aim to serve.

[Baroness Verma (Con)]

My Lords, does my noble friend agree that part of the issue for women from minority communities, particularly the south Asian community, is language, and that, before it gets to the stage that we hope it will not get to—homicide—those women should be able to report? Due to language barriers, they cannot. Will my noble friend look at ways of working with other departments to ensure that we can get English into communities? It may be through funding community groups, but the insistence should be that English is part of the programme. Secondly, will he look at how we do training within the Home Office—rolling it out to recognise the start of the need for intervention rather than waiting for it to become a big problem?

[Lord Sharpe of Epsom (Con)]

My noble friend raises some very good points. It links into part of the question put to me by the noble Baroness, Lady Brinton, which I did not answer: about the police response to tackling domestic abuse. We have provided funding to support the rollout of the Domestic Abuse Matters training to police forces which have yet to deliver it, or which do not have their own specific domestic abuse training, to improve and ensure consistency in the police response to domestic abuse. I would imagine—I will check—that that includes the language barriers that my noble friend identifies. That programme has been completed by 34 police forces to date. Considerable work is also going on in building up the evidence base and, indeed, starting a library, which will help police forces to investigate these crimes.

[Baroness Thornton (Lab)]

My Lords, the opening words of the briefing from Home Office-funded project referred to by the noble Baroness say:

“The onus is too often placed on survivors from minoritised ethnic groups to navigate a system that has not been designed to take account of their needs, rather than addressing structural barriers that prevent their access to support”.


I suspect that not much has changed since that briefing was written and published in 2022. By the time a woman becomes a victim of domestic homicide, the truth is that she may have been repeatedly failed by the system. How is the Casey report into the Met Police feeding into the Government’s programme, and what targets do the Government have to reduce domestic abuse and violence against women and girls? Of course, the Labour Party does have a target for if and when we are in government.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I have already gone through a number of the programmes that have been put in place, many of which started only in 2022. I do not think it is fair to characterise the Government as not treating this as a priority. As the noble Baroness will be aware, we made it a strategic policing priority alongside terrorism and other priorities only last year. It is worth mentioning at this point someone I have referenced many times from the Dispatch Box. Maggie Blyth, who is the VAWG lead at the NPCC, has recently been appointed as the new deputy CEO at the College of Policing. I think that is a very positive step forward from an enforcement perspective. I would also like to commend Louisa Rolfe, who is the domestic abuse lead at the NPCC. We are doing a great deal. A consultation is under way on the domestic homicide statutory guidance; I suggest that the noble Baroness participates.

[The Lord Bishop of Gloucester]

My Lords, after contacting the police to report domestic violence crimes, migrant women in the UK have often been reported to Immigration Enforcement. For this reason, those women often stay silent for longer. What are the Government doing to ensure that black, Asian and minority-ethnic women who are victims of domestic violence can report abuse without fear of detention or deportation?

[Lord Sharpe of Epsom (Con)]

The right reverend Prelate will be aware that, if they do, they are not subject to immigration action—a subject that has been talked about a number of times from the Dispatch Box.

[Baroness Falkner of Margravine (CB)]

My Lords, I declare an interest as the chair of the Equality and Human Rights Commission. The Minister will know that, in the Istanbul convention, which is the foundation of much of our statutory work in this area, Article 12.5 refers specifically to honour-based killings and violence. The Minister has indicated that a consultation is about to open in this area. Will the Article 12.5 requirement, which calls for the Government to have improved statutory definitions of honour-based violence, be part of that consultation?

[Lord Sharpe of Epsom (Con)]

I cannot answer the last part of the noble Baroness’s question, but I can say that last week we hosted at the Home Office GREVIO, the organisation looking at our compliance with Istanbul, and I think we had a very positive meeting. It was a privilege to be able to host them in the office and to go through much of the work that we have already done. I will try to come back in writing on the specific question that she asked.

[Baroness Hussein-Ece (LD)]

My Lords, the report by the Centre for Women’s Justice, which the Minister has probably seen, highlights a number of barriers faced by women, particularly from black and minority-ethnic communities, in reporting domestic violence and abuse. One of them—and there have been a number of high-profile cases of this—is that victims face criminalisation by counter-allegations. As they lack the ability to navigate the service and the relevant support, that often leads to devastating consequences. Another issue is a fear of losing their children when social services get involved. The Minister mentioned police training, but specialist services and access to them are also important. The report says that cuts to those services have cost lives. I ask the Minister to comment on those issues and how best women can be supported to make sure that we bring down the level of fatalities in this cohort of women.

[Lord Sharpe of Epsom (Con)]

The noble Baroness makes a good point. Obviously, I cannot comment on individual cases or indeed on the operational aspects of this. The criminal justice system will have to look at all those individual matters and judge them appropriately. What I can do is repeat what I have said about police training, which has now been rolled out to 34 forces. Obviously, there is more to do. The police force is being very well led in this area, as I have just highlighted. I will also say that the By and For programme to which I referred earlier supports services by and for those specifically affected. That makes perfect sense, and it should be as local as possible.

Immigration Act 2014 (Residential Accommodation) (Maximum Penalty) Order 2023

Lord Sharpe of Epsom Excerpts

Thursday 18th January 2024 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Orders laid before the House on 15 and 27 November 2023 be approved.

Relevant documents: 5th and 7th Reports from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 16 January.

Motions agreed.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2024

Lord Sharpe of Epsom Excerpts

Thursday 18th January 2024 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Order laid before the House on 15 January be approved.

Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, I am grateful to the House for its consideration of this draft order, which will see Hizb ut-Tahrir proscribed.

It may be helpful if I start by setting out some background to the proscription power. Some 79 terrorist organisations are currently proscribed under the Terrorism Act 2000. For an organisation to be proscribed, the Home Secretary must believe that it is concerned in terrorism, as set out in Section 3 of the Terrorism Act 2000. If the statutory test is met, the Home Secretary must then consider the proportionality of proscription and decide whether or not to exercise their discretion.

Proscription is a powerful tool with severe penalties, criminalising membership and invitations of support for the organisation. It also supports other disruptive activity, including immigration disruptions and terrorist financing offences. The resources of a proscribed organisation are terrorist property and are therefore liable to be seized.

The Home Secretary is supported in his decision-making by advice from the cross-government Proscription Review Group. A decision to proscribe is taken only after great care and consideration, given its wide-ranging impact. It must be approved by both Houses.

Part II of the Terrorism Act 2000 contains the proscription offences, in Sections 11 to 13. An organisation is proscribed if it is listed in Schedule 2 to that Act or, in most cases, it operates under the same name as an organisation so listed. Article 2 of this order adds Hizb ut-Tahrir to the list in Schedule 2 as a new entry.

With this House’s consent, Hizb ut-Tahrir, including all regional branches, such as Hizb ut-Tahrir Britain, will be proscribed. Having carefully considered all the evidence, the Home Secretary has concluded that Hizb ut-Tahrir is concerned in terrorism and should be proscribed. Noble Lords will understand, I am sure, that I am unable to comment on specific intelligence. Nevertheless, I can provide Members with a summary of the group’s activities, which supports this decision.

Hizb ut-Tahrir, which I will now refer to simply as HuT, is an international political organisation with a footprint in at least 32 countries, including the UK, US, Canada and Australia. Its long-term goal is to establish a caliphate ruled under Islamic law. HuT’s headquarters and central media office are in Beirut, Lebanon, and its ideology and strategy are co-ordinated centrally.

The British branch, which I will refer to as HTB, was established in the 1980s. While HTB is afforded autonomy to operate in its local environment, it is important to emphasise at this point that HuT should be considered as a coherent international movement, with HTB recognising the overall leadership of HuT on its website. This decision to proscribe therefore relates to HTB, and other regional branches, in forming part of a single, global entity, which is HuT.

There is current evidence that HuT is concerned in terrorism. HuT’s central media office and several of HuT’s Middle Eastern branches have celebrated and praised the barbaric 7 October terrorist attacks carried out by Hamas, which, as noble Lords will be aware, is a proscribed organisation. When the proscription of Hamas was extended to include both the military and political wings in 2021, the Government were clear that Hamas prepares, commits and participates in acts of terrorism.

Further recent activity includes an article attributed to HuT’s Egyptian branch, which referred to the killing of Jewish tourists by an Egyptian police officer as

“a simple example of what should be done towards the Jews”.

Elsewhere, HuT has frequently referred to Hamas as “the heroes of Palestine” in articles on its website. HTB also published an article on its website, which was subsequently removed, which described the 7 October attacks as a “long awaited victory” and referred to the fact that they

“ignited a wave of joy and elation amongst Muslims globally”.

It is the Government’s view that the content included in this article betrays the organisation’s true ideology and beliefs, aligned with the organisation’s global output.

HuT has regularly engaged in anti-Semitic and homophobic discourse. While HuT claims to be committed to non-violence, it rejects democracy and its aims bear similarities to those of terrorist groups, including Daesh, which of course is already proscribed.

The decision to proscribe is supported by our international partners. Hizb ut-Tahrir is banned in many countries around the world, including Germany for anti-constitutional reasons, with restrictions also placed on its activities in Austria, among others.

Proscription is a powerful tool. It will significantly thwart HuT’s operations in the UK. It is a criminal offence for a person to belong to a proscribed organisation; invite or express support for a proscribed organisation; arrange a meeting in support of a proscribed organisation; or wear clothing or carry or display articles in public in such a way or in such circumstances as to arouse reasonable suspicion that the individual is a member or supporter of a proscribed organisation. The penalties for conviction of proscription offences can be a maximum of 14 years in prison and/or an unlimited fine.

The first duty of the Government is to keep the people of the United Kingdom safe. They rightly expect us to take every possible measure in service of that endeavour. Our message is clear: we will not tolerate the promotion or encouragement of terrorism, nor will we accept the promotion or glorification of Hamas’s abhorrent attack of 7 October. We will confront anti-Semitism wherever and however it rears its ugly head, taking every possible step to keep the Jewish community in the United Kingdom safe.

We must and will use every available measure to safeguard our values and tackle terrorism in all its forms. I therefore urge the House to support this proscription, which is a proportionate and justified response to the promotion and encouragement of terrorism, and to calls for violence and disorder, as espoused by HuT. I beg to move.

[Lord Polak (Con)]

My Lords, I thank my noble friend the Minister and the Government for this. I am not sure that I am going to go down the route of, “What took us so long?” I recall Tony Blair talking about banning Hizb ut-Tahrir. I even recall our new noble friend the Foreign Secretary talking about it in 2010, before becoming Prime Minister, saying that it was something that would be done. Therefore, I am very grateful to the Minister and his colleagues for ensuring that it has been done.

I guess I declare an interest: I am a Jew, and very proud of it. I know full well what Hizb ut-Tahrir wants to do to me, my family and my co-religionists. I am grateful to the Minister for this measure, so obviously I will support it.

However, the Minister will know that I do not miss an opportunity—and I will not miss this opportunity. While the Government are on a roll and have done the right thing, they know that I and others in this House believe that the IRGC should be going in exactly the same way. The IRGC are the masters of everything that we do not like, in the way that the Minister described at the beginning. While thanking him, I hope that he will not mind me asking for a little bit more. The IRGC needs to be proscribed.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I thank the Minister for opening the debate today clearly and concisely, and I agree with much of what the noble Lords, Lord Polak and Lord Purvis, said.

Today’s proscription order is underpinned by the exceptional men and women who serve in our intelligence and security services, in government and in our police. They work tirelessly to keep our country safe. We are extremely fortunate to have them. Keeping our country safe is the first duty of government and a common cause that we share and all treat with the utmost seriousness. On that basis, it is vital, as the Minister knows, that the Government and His Majesty’s Opposition work in the national interest on these crucial issues.

As the Minister laid out, this order will amend Schedule 2 to the Terrorism Act 2000 to add Hizb ut-Tahrir to the list of proscribed organisations. Doing so will make it a criminal offence to belong to Hizb ut-Tahrir, to engage in activities such as attending meetings, to promote support for the group or to display its logo. After years of serious and increasing concern about Hizb ut-Tahrir’s activity in the UK, His Majesty’s Opposition strongly support its proscription. It is a necessary step to effectively counter its hateful extremism and divisive rhetoric, which threatens the safety and security of our country. As the Minister outlined, proscription of this international terrorist organisation comes after other countries, including Germany, have already banned it.

Hizb ut-Tahrir has been proscribed now because of its escalating activity in the aftermath of Hamas’s barbaric terrorist attack on Israel. Unlike the condemnation of these attacks by the vast majority of Muslims here in the UK, who are just as horrified as the rest of us, Hizb ut-Tahrir Britain glorified as heroes the Hamas terrorists who revelled in acts of indiscriminate violence against civilians. Again, unlike the deep sorrow and outrage the British people shared with the Israeli people in the aftermath of 7 October, Hizb ut-Tahrir boasted of its euphoria on the news of this appalling and tragic loss of life.

There is no place on Britain’s streets for vile anti-Semitism. There is no place on Britain’s streets for those who incite violence and glorify terrorism. There is no place on Britain’s streets for Hizb ut-Tahrir. This terrorist group peddles hate, glorifies violence and is hostile not only to our values but to the common sense of humanity. As the noble Lord, Lord Polak, mentioned, there is nothing new about its divisive and poisonous rhetoric, which has been widely recorded for over two decades in the UK, long before the horrific attacks of 7 October. Organisations such as the Community Security Trust, the Antisemitism Policy Trust and the Union of Jewish Students have long raised serious concerns about Hizb ut-Tahrir’s anti-Semitism, alongside its misogynistic and homophobic hate speech, which provides a channel for extremism. We have already heard that that is why previous Prime Ministers, Home Secretaries and Security Ministers have considered proscribing Hizb ut-Tahrir, but its activities were not recognised as sufficient under the definition of terrorism in Section 3 of the Terrorism Act 2000 until now.

Given for how long these matters have been debated and considered, I would be grateful if the Minister could answer some questions when he responds. To start with, does he think that there are lessons to be learned regarding the length of time it has taken to proscribe this organisation? Does he believe that the current proscription process is robust enough to counter threats to our national security, and can he say when it became a proportionate response in this case as well as in others? Can he say whether other bodies, as we have heard, are under consideration for proscription, given the various global threats we face? Is the speed of decision-making up to the task? In particular, and he will know that we have asked for this, does he agree that a bespoke proscription mechanism for state-sponsored organisations is now required—something that, as I say, His Majesty’s Opposition, along with others, have called for?

Countering threats to our national security requires joined-up government working, but the counter-extremism strategy has not been updated since 2015, with important elements of policy around community cohesion now the responsibility of the Levelling-Up Secretary. Given the significance of these matters, can the Minister tell the House when the Government will bring forward a new definition of hateful extremism? Can he confirm whether his department will update the counter-extremism strategy, as my right honourable friend the shadow Home Secretary has called for?

To conclude, proscribing Hizb ut-Tahrir is the right thing to do for our national security. For too long, the public have been exposed to its extremist ideology, its glorification of terrorist activity and its core aim of overthrowing our democratic system of government to replace it with an Islamist theocracy. If left alone, extremism can and will spread insidiously and spread deceit deep into our national conversation. No Government must ever relent in their determination to ensure that we are always one step ahead of those who seek to harm or to undermine our way of life. We must always be on the side of the public we seek to serve and protect. That is why we strongly support the Government’s actions in taking forward the proscription order before us.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the three noble Lords who have contributed to the debate. I would very much like to associate myself with the remarks of the noble Lord, Lord Coaker, thanking our security services and our police forces, and those in government—many of whom are, as noble Lords will be aware, in the Home Office—who are very engaged in this subject, and who keep us safe.

I shall do my best to address as many as possible of the points that have been made. If I miss anything, I will, of course, commit to write—and just to reassure the noble Lord, Lord Purvis, I can say that a letter is on its way.

I shall briefly give the House some key facts, in terms of the number of organisations proscribed in this country. There are currently 79 proscribed terrorist organisations, in addition to the 14 Northern Ireland-related terrorist organisations that were proscribed before 2000, and 38 terrorist groups have been proscribed since 2010—a very depressing statistic indeed, as the noble Lord, Lord Purvis, noted. The most recent proscription order came into force in September 2022, when the Wagner group was proscribed. I think all the noble Lords here participated in that debate.

Of course, the Government will always consider the full range of powers available to tackle threats on our soil or against our people and interests. We will continue to make use of our counterterrorism powers, including the proscription tool, where appropriate, to tackle the modern threats we face. The work on that is ongoing. I acknowledge the bespoke proscription tool for state threats, as asked for by the noble Lord. Obviously, I cannot comment on that, but the National Security Act, which came into force last year, provides robust powers to deal with the complex state threats that the UK faces in a broader context. I am aware of his ongoing interest in this, and I am sure I will continue to engage in discussion with him about it.

The barriers for proscription, and the qualifications and tests, are robust. As I said in my opening remarks, they are governed by the Terrorism Act 2000, and it might be worth going through them for the record. The Home Secretary may proscribe an organisation if he believes it is concerned in terrorism, and this means that the organisation

“commits or participates in acts of terrorism … prepares for terrorism … promotes or encourages terrorism (including the unlawful glorification of terrorism); or … is otherwise concerned in terrorism… If the statutory test is met, there are other factors which the Home Secretary must take into account when deciding whether or not to exercise the discretion”.

Those factors include

“the nature and scale of an organisation’s activities … the specific threat that it poses to the UK … the specific threat that it poses to British nationals overseas … the extent of the organisation’s presence in the UK; and … the need to support other members of the international community in the global fight against terrorism”.

The Home Secretary will exercise his power to proscribe only after thoroughly reviewing the available evidence on an organisation. This includes information taken from both open sources and sensitive intelligence, as well as advice that reflects consultation across government.

That brings me to the question asked by my noble friend Lord Polak, which is: why has it taken so long? I have explained how the Home Secretary must believe that an organisation is concerned in terrorism and, as the House has heard, since the 7 October attack HuT has promoted and encouraged terrorism, and celebrated and praised the 7 October terrorist attacks by Hamas, including in an article that referred to the killing of Jewish tourists by an Egyptian police officer, which I referred to in my opening remarks, as a simple example of what should be done to the Jews.

Elsewhere, HuT has frequently referred to Hamas as the heroes of Palestine, in articles on its website. As has been noted, it has a long history of praising and celebrating attacks against Israel and attacks against Jews more widely. This vile anti-Semitism cannot be decoupled from the statements recently attributed to HuT encouraging and promoting terrorism. But of course, the facts changed after 7 October. I think that explains the decision to act now. When the facts change, we change our minds.

On religious communities, obviously I agree with all noble Lords that the growth in anti-Semitism is extraordinarily concerning. A number of my friends are affected by it and have said that they are now afraid to walk the streets in certain circumstances.

[Lord Polak (Con)]

Exactly on that point, I pay tribute to the Government because for a number of years they have helped to fund the security of our schools and synagogues, and so on. Noble Lords might not realise that, to get into a synagogue to pray, one has to go through security—that is here in Britain, in 2024. After 7 October, the Government gave the Home Office another £3 million towards this. Just so that noble Lords understand, just days after 7 October my daughter called me and asked, “Dad, do you love your grandchildren?” I said to Natasha, “What’s this question?” She said, “Should we send them to school?” That is a Jewish, state-aided school in Finchley, north London. They were scared to send their kids to school here in Britain. That is just to get over to noble Lords that this is the problem, but I am grateful to the Government for their support.

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for his personal perspective, which—I think I can safely speak for the whole House—we obviously regret very considerably. That just amplifies the point I was making that some of my friends have expressed to me that they are also afraid, in certain circumstances, to walk the streets of the capital in particular, although I imagine that that applies across the entire nation. I personally think that is disgraceful.

However, I thank my noble friend for pointing out that the Government have made significant efforts to protect the Jewish community. The Jewish community protective security grant provides security measures, such as guarding, CCTV and alarm systems at Jewish schools, colleges, nurseries and some other Jewish community sites, as well as a number of synagogues. The JCPS grant is managed on behalf of the Home Office by the Community Security Trust. In response to the Israel-Hamas conflict and reports of increased incidence of anti-Semitism in the UK, the Prime Minister has announced an additional £3 million of funding for the Community Security Trust—which my noble friend referred to—that will provide additional security at Jewish schools, synagogues and other Jewish community sites. This brings total funding for CST through the Jewish community protective security grant to £18 million in 2023-24. The Chancellor’s Autumn Statement confirmed that protective security funding for the Jewish community will be maintained at £18 million in 2024-25. So I thank my noble friend for his thanks. Obviously, the Government are very alive to the fact that we need to do as much as we can.

On the question about the statistics on anti-Semitism, I will have to write on that—I am afraid I do not have them to hand.

It would be wrong not to highlight also what is being done to protect Muslim communities, who obviously are also affected by events in the Middle East. We recognise that the developments there can impact British Muslim communities, and they lead to a rise in community tensions. The Government have made an additional £4.9 million available for protective security at mosques and Muslim faith schools this year and the next. That brings total funding for UK Muslim communities to £29.4 million for both 2023-24 and 2024-25. We have also extended the deadline for the protective security for mosques scheme, and invite mosques and Muslim faith community centres to register for protective security measures by 18 February 2024. The protective security for mosques scheme provides physical security measures such as CCTV, intruder alarms and secure perimeter fencing to mosques and associated Muslim faith community centres. Guarding services for both mosques and Muslim faith schools will become available early this year.

My noble friend did not surprise me by asking about the IRGC. There is obviously significant parliamentary media and public interest in potentially proscribing the IRGC. Both the House of Commons and the House of Lords have discussed this subject on a number of occasions, with the House of Commons unanimously passing a Motion in January to urge the Government to proscribe. The department keeps the list of proscribed organisations under review and, as noble Lords will be aware, our policy is not to comment on the specifics of individual proscription cases. I am therefore unable to provide further details on this issue in particular. Ministers have previously confirmed to the House that the decision is under active consideration, but we will not provide a running commentary. However, I think I can refer to the most recent public position on this, which was a comment from the current Foreign Secretary on the proscription of the IRGC. In an interview with the Telegraph on 23 December, the current Foreign Secretary said:

“The move you’re talking about is not something that either the intelligence agencies or the police are calling for. So I think our stance is the right one”.


That is the latest information on that subject, but I am quite sure that we will return to it.

The noble Lord, Lord Coaker, asked me what is happening with the counterextremism strategy. The Government, obviously, remain focused on disrupting the activities and influence of extremists, supporting those who stand up to extremism and stopping people being drawn into terrorism. We keep our response to extremism under constant review to ensure that it is best placed to tackle the evolving threat.

Building on the foundation set by the 2015 counterextremism strategy, we have scaled up our approach to disrupting groups who seek to radicalise others in order to focus on those who pose the biggest threat to our communities and our security. The Government’s focus is to use existing mechanisms to analyse, prevent and disrupt the spread of high-harm extremist ideologies that can lead to community division, and to radicalisation into terrorism, particularly those that radicalise others but deliberately operate below counterterrorism thresholds. Where there is evidence of purposeful actions that are potentially radicalising others into terrorism or violence, proportionate disruptive action will be considered.

The noble Lord, Lord Coaker, asked me about investigation and prosecution of offences. He will be aware that that is an operational matter for the police and the Crown Prosecution Service. But His Majesty’s Government are working with operational partners to support their management of terrorism offences, particularly in the context of the ongoing crisis in Israel and Gaza, and we will continue to do that to realise the disruptive benefits of this proscription swiftly.

I do not have access at the moment to the Foreign Office guidance for Lebanon. I will find out what it is and come back to the noble Lord, Lord Purvis.

In conclusion, the security of our communities is the Government’s foremost priority. The effort to counter and contain terrorism is complex and relentless. When action is needed, we will not hesitate. This is why we have brought forward this order, which I commend to the House.

Motion agreed.

Investigatory Powers (Amendment) Bill [HL]

Lord Sharpe of Epsom Excerpts

Thursday 18th January 2024 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the amendments for the Report stage be marshalled and considered in the following order: Clauses 1 to 13, The Schedule, Clauses 14 to 31, Title.

Motion agreed.

Sir Edward Heath: Operation Conifer

Lord Sharpe of Epsom Excerpts

Wednesday 17th January 2024 Lords Chamber

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

My Lords, I thank my noble friend Lord Lexden for securing this debate. I recognise that this is an issue of long-standing interest for him and all other noble Lords who have contributed. I thank them particularly for their many personal experiences of Sir Edward Heath, the great statesman, especially those reminiscences from my noble friend Lord Waldegrave, and the noble Lords, Lord Hunt and Lord Birt. While I commend my noble friend Lord Lexden for his tenacity, I am afraid that my response will not differ greatly from that which I have given in the past. Nevertheless, I will again set out for the House the Government’s position.

The first point to make is that it is unfortunate that Operation Conifer was not able to resolve conclusively the position in respect of all the allegations made against Sir Edward. I appreciate the strength of feeling from Sir Edward’s friends and former colleagues that this traduces his memory, but I must, once again, make very clear the point that it does not. The Operation Conifer summary closure report emphasised that no inference of guilt should be drawn from the fact that Sir Edward would have been interviewed under caution had he been alive.

I think we can all agree that it is deeply unfortunate for all concerned that these allegations did not come to light until after Sir Edward’s death. We can certainly agree that the manner in which the then chief constable of Wiltshire Police, Mike Veale, chose to publicise those allegations deserves the censure it has rightly received. Indeed, Mr Veale has admitted that his actions in that respect were inappropriate. As the noble Lord, Lord Macdonald of River Glaven, pointed out, and I agree, it was, in fact, a new low.

However, we must separate the understandable opprobrium for Mr Veale’s mistakes from a clear-sighted, objective and fair assessment of the investigation and its outcomes. Of course emotions run high in this case—indeed, it is laudable that noble Lords show their loyalty and long-term commitment to the cause of their friend and, as my noble friend Lord Cormack noted, a great statesman—but the Government cannot and should not be guided by emotion, nor by the status of individuals. It is certainly not a unique situation that a deceased individual has allegations made against them to which they are unable to respond, and there can be no justification for treating that individual differently because he or she was a former Prime Minister. There are important principles at stake. It is a fundamental tenet of our legal system that anyone accused of a crime is innocent until they are proven guilty. To maintain that Sir Edward’s reputation is besmirched by the fact that unproven allegations have been made about him is to undermine that precept.

Another critically important principle is at stake, however uncomfortable, and it certainly is in this instance: we must continue to uphold the right of the individual to challenge the holders of power in this country, be they institutions or those occupying high office. I can do no better than echo the words of the 2017 Guardian editorial referenced in the briefing note on Operation Conifer, which was published last Friday by the House’s Library. It said:

“Yet there is a good defence of the decision to investigate, and it must be heard. It rests on the Human Rights Act, which exists to protect individuals in their dealings with official power. The supreme court is due to rule whether the police are always obliged to investigate allegations of serious crime, after the appeal court upheld the argument that the greater the power of the agency of the state, the stronger the duty to investigate allegations made against it. So the police investigation into allegations against Edward Heath was not a futile attempt to bring a dead man to justice, but an important exercise in upholding the right of the citizen. This may be scant comfort to Heath’s friends. But it is an important principle”.


That was written in 2017, of course, but it remains pertinent. I agree with the noble Baroness, Lady Doocey, that upholding the rights of the citizen is paramount. Indeed, even this week we have seen many instances of the consequences of the failure to do that.

Of course, it was subsequently proved that the allegations were those of a deranged fantasist, and he is rightfully serving a very long sentence for his crimes, but we also must acknowledge—and not one speaker has mentioned this—that significant political cover was afforded to that individual by some senior politicians, including Members of your Lordships’ House. That is also regrettable and deserves to be on the record.

We cannot lose sight of our duty to uphold the rights of the citizen, whatever our personal views about the merits of the citizen’s case. In line with that principle, I reiterate that the Government have given this matter careful consideration and concluded that there are still no grounds to justify a review or intervention by the Government. The Government do not have plans to commission a review of either the conduct of the investigation into allegations made against Sir Edward or the findings of that investigation.

I know this will disappoint noble Lords, but I must underline again that the investigation has already been subject to considerable external scrutiny by an independent scrutiny panel, two reviews by Operation Hydrant in September 2016 and May 2017, and a review in January 2017 by Her Majesty’s Inspectorate of Constabulary, as it was then. These reviews concluded that the investigation was legitimate and proportionate. Furthermore, questions about the national guidance that the force was following in conducting the investigation have already been picked up by the College of Policing.

I have explained in considerable detail at various other outings on this subject the scrutiny that the original investigation has been subjected to, so I will not repeat all that, but some noble Lords have proposed a more limited review of the allegations in respect of which Wiltshire Police has said that it would have interviewed Sir Edward had he been alive. Such a review, it is proposed, might consider whether any of those allegations would have justified a decision by the Crown Prosecution Service to prosecute, but the ability of a review to do this would, of course, depend on the evidence itself. But it is not for the Government to commission reviews of evidence in respect of individuals. This would be a matter for the local force if it considered it to be appropriate.

I have to a large degree retraced—

[Lord Butler of Brockwell (CB)]

My Lords, may I just contest the point the Minister has just made? This is not a local issue; it is a national issue. That has been made perfectly clear by the points that have been made. While I am on my feet, I will just say that when I came to this debate, my view was—and it followed a point made by the noble Lord, Lord Parekh—that there were pros and cons for an inquiry but that the case against one was that we were just reviving charges against Sir Edward Heath that nobody now believes and that that served no purpose. I want to say, having heard the debate tonight, that I have changed my mind.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for his intervention. I did not say that it was a local matter; I said that it was for the local force to decide whether they considered that to be appropriate. I think that is an important distinction. I accept that—

[Lord Cormack (Con)]

Will my noble friend, at the very least, do as the noble Lord, Lord Lexden, requested and give the Home Secretary a copy of this debate, and underline how unanimous the general sentiment in this House was? Will he do one other thing? Will he ask the Home Secretary to receive a deputation of Members of your Lordships’ House who have taken part in this debate?

[Lord Sharpe of Epsom (Con)]

I say to my noble friend that I am coming to that in a second.

I have to a large degree retraced a lot of old ground, which is perhaps only to be expected when considering a question that we have already discussed many times. I am reconciled to the fact that this will obviously annoy and disappoint my noble friend Lord Lexden—

[Lord Sherbourne of Didsbury (Con)]

Given that the reputation of the former Prime Minister has been tarnished, and my noble friend the Minister has set out the reasons why there should be no further inquiry, does he regard it as satisfactory that that reputation remains tarnished?

[Lord Sharpe of Epsom (Con)]

My Lords, I will also come to that.

I am grateful to my noble friend Lord Lexden for securing this debate, as I said earlier, and to other noble Lords for their contributions. As regards the question that was asked of me by my noble friend Lord Lexden, which has just been reiterated by my noble friend Lord Cormack and asked also by the noble Lords, Lord Hunt and Lord Coaker, I absolutely will take this back to the current Home Secretary and make sure that he is aware of this debate and the strength of feeling, and indeed all the preceding debates we have had on this subject.

Of course, I am genuinely sorry to have to disappoint the House, but I hope that I have provided some clarity and reassurance around the current position. I stress that this is unlikely to alter without a material change to the situation, but I commit quite happily to take this back to the Home Secretary.

[Lord Deben (Con)]

Will my noble friend also say to the Home Secretary that we will go on demanding this inquiry until we get it and that it would be much easier to give way now?

[Lord Sharpe of Epsom (Con)]

I am happy to provide my noble friend with that reassurance.

As regards whether I regret that Sir Edward’s memory and legacy have been in some way tarnished, of course I do. I think it is incredibly regrettable, and it is incredibly regrettable that the deranged fantasist was encouraged in the way that he was. However, he is paying the price.

As I have set out, Operation Conifer has been subject to external scrutiny, whether your Lordships agree with that scrutiny or not, and it is the Government’s assessment that there are not currently any grounds for further intervention.

[Lord Lexden (Con)]

My Lords, I do not think it is normal for a debate of this kind to have any final words from the person who introduced it, but I think there is perhaps an expectation that I should do so. It is important that the new Home Secretary studies this most carefully, reading the Hansard, and I hope that we will have a full and considered reply from him. This debate has not only touched on very difficult events and actions but has contained very considerable scrutiny and critique of the grounds on which the Government have previously rejected an inquiry. We need to bring this matter to a conclusion. We must have an inquiry.

Immigration Act 2014 (Residential Accommodation) (Maximum Penalty) Order 2023

Lord Sharpe of Epsom Excerpts

Tuesday 16th January 2024 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Immigration Act 2014 (Residential Accommodation) (Maximum Penalty) Order 2023 and the Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2023.

Relevant document: 5th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, the first instrument for noble Lords to consider in this single debate is the Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2023.

The Home Office is the first line of enforcement against illegal migration and works across government to prevent individuals without lawful status in the UK accessing work, benefits and services. Illegal working often results in abusive and exploitative behaviour, the mistreatment of unlawful migrant workers and revenue evasion. It can undercut legitimate businesses and have an adverse impact on the employment opportunities of people who are lawfully in the UK.

Employers have a role to play in ensuring that all their employees have the right to work in the UK. Since 2008, this has been underpinned by the right-to-work civil penalty scheme, under which employers are required to carry out prescribed checks on individuals before employing them. This is to ensure that they are lawfully allowed to work in the UK. If an employer employs somebody who does not have the right to work in the UK, they may be liable for a civil penalty. Employers can avoid liability for a civil penalty if the correct right-to-work checks are carried out before the individual commences employment.

The level of civil penalty for non-compliance has remained the same since 2014, diluting its impact as a deterrent to those who facilitate illegal working, including instances of labour exploitation. Accordingly, the Government intend to increase the civil penalty for employers from £20,000 to £60,000, by virtue of the Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2023.

This will ensure that the scheme continues to act as a deterrent in respect of employers who employ illegal migrants and send a clear message that only individuals with a right to work in the UK can secure employment. In the case of a first breach, the starting point is £45,000. Employers who elect to pay the penalty via the fast payment option will benefit from a further 30% reduction in the overall amount, after reductions have been applied for any specified mitigating factors.

It remains a criminal offence for migrants to work illegally in the UK, or where the individual is in the UK unlawfully. The offence of working illegally carries a maximum penalty of 51 weeks’ imprisonment in England and Wales and six months’ imprisonment in Scotland and Northern Ireland, or a fine.

The second instrument for noble Lords to consider in this single debate is the Immigration Act 2014 (Residential Accommodation) (Maximum Penalty) Order 2023, which will be in force in England only.

Since 2014, anyone offering rental accommodation in the private rented sector should carry out checks on new adult occupiers before renting to them. This is to check that the individual has the right to rent, and is commonly known as the right-to-rent scheme. Allowing those without a lawful right to be in the UK to rent property enables them to establish a settled life in the UK. This creates costs to the public purse, including through the provision of local authority support, and reduces the amount of housing stock available to those who are lawfully residing in the UK. It often allows abusive and exploitative behaviour, with rogue landlords housing unlawful migrants in unsafe accommodation.

The maximum civil penalty for landlords, including letting agents, will be raised—by virtue of the Immigration Act 2014 (Residential Accommodation) (Maximum Penalty) Order 2023—from £3,000 to £20,000. In the case of a first breach, the starting point is £10,000. Landlords and letting agents who elect to pay the penalty via the fast payment option will benefit from a 30% reduction, from £10,000 to £7,000 or from £5,000 to £3,500 as applicable. As is the case now, the maximum penalty will be levied only on an employer, landlord or letting agent who has breached one of the schemes on more than one occasion in a three-year period, where the fast payment option was not utilised and where no specified mitigating factors apply.

Employers, landlords and letting agents can also appeal a civil penalty decision if, following an objection to the Home Office, that decision has been upheld. An appeal must be on the same grounds as the objection and an employer, landlord or letting agent must make the appeal within 28 days, registering it at a county court or sheriff’s court. This allows accidental non-compliant employers, landlords or letting agents safeguards against penalties.

In summary, these draft orders aim to change the behaviour of rogue employers, landlords and letting agents; to eliminate any financial gain or benefit from non-compliance; to tackle the harm caused by regulatory non-compliance where appropriate; and to deter future non-compliance. I therefore commend them to the Committee.

[Lord Lilley (Con)]

My Lords, these regulations are a regrettable consequence of our failure to prevent—it is extremely difficult to prevent—deter or remove illegal immigrants from this country. I hope that the Rwanda Bill, which we will consider shortly, will belatedly change that situation.

The reason why I have chosen to intervene briefly in this debate is to seek information. When I was the Secretary of State for DSS, I was told that it was impossible to work legally in this country without a national insurance number—a NINo. You cannot get a national insurance number unless you can demonstrate the legal right to work. It then emerged that there were far more national insurance numbers than people of working age in this country. Various explanations were put forward—they were numbers of people who had emigrated and the numbers were not rescinded, and so on.

First, I want to know whether that issue has been cleared up. Can my noble friend the Minister confirm that it is necessary to have a national insurance number to be employed? The employer has to ask for it and obtain it; it will then go into the system and, if the number is invalid, it will be thrown out. Secondly, is it possible in any way to obtain a national insurance number if you do not have the legal right to work? Are those two aspects effective in preventing illegal immigrants obtaining legal employment or accessing benefits? I appreciate that they will not stop people employing people illegally and failing to report that to the authorities, the tax authorities and so on.

I appreciate that my noble friend may not have the answers to those questions here and now but it would be helpful if we could clear this up and put on the record the precise effectiveness of national insurance numbers in dealing with these issues.

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I will comment briefly on the question raised by the noble Lord, Lord Lilley, about whether people are checked for their legal right to work before they receive a national insurance number. I do not know what answer the Minister will give, but if he wants to give a more detailed written answer, I would be very interested to read it. In my experience in magistrates’ courts, there is often no relationship between people who have national insurance numbers and those who have no status to work here. In fact, I have been told—it may well be inaccurate—that they are separate systems, which is the reason the Government are bringing in the extra checks we are talking about in these two orders. Nevertheless, this is just tittle-tattle I have heard in magistrates’ courts, and I would be interested to hear what the Minister has to say.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for their contributions to this debate. We can deliver a comprehensive response to tackle illegal migration only if we work with UK employers, landlords and letting agents to deny employment and housing to those without the right to work in this country. Illegal working and renting are the main incentives for illegal migration and often involve exploitation and unfair competition. The civil penalty scheme encourages employers, landlords and letting agents to comply with their obligations to check the right to work and rent of all employees and occupiers, without criminalising those who make a mistake.

Legitimate employers, landlords or letting agents will not face higher costs through increased penalties. The scope of the penalty regime has not changed. Those who continue to act in a legitimate manner, by checking and recording the documents of their employees or tenants, will not be affected by the strengthened penalty regime. I was interested in the comments from the noble Lord, Lord Ponsonby, on consultation. Given what I have just said, who would the noble Lord consult with—those who are legitimately employing and renting or those who are not? I would have thought that would make the consultation a little problematic to set up.

I will try to answer all of the various questions asked of me. On my noble friend Lord Lilley’s question, as I understand it, a national insurance number is not a prerequisite for the right to work. You can prove the right to work alongside another document, such as a birth certificate. This is a DWP matter, so I will commit to taking this to the DWP and ask that department to write on the specifics of his question.

All noble Lords have asked perfectly sensible questions about whether the schemes are discriminatory, because there are risks of that sort of thing. On 21 April 2020, the Court of Appeal found the right-to-rent scheme to be a proportionate means of achieving its legitimate objective of supporting a coherent immigration system in the public interest. As a result, the court considered the scheme to be justified and not in breach of the prohibition on discrimination in Article 14 of the European Convention on Human Rights when read with Article 8, which is the right to respect for private and family life.

The scheme is capable of being operated proportionately by landlords and letting agents in all cases. The very purpose of the statutory code of practice on avoiding unlawful discrimination when conducting checks recognises and seeks to address the risk of discrimination. While there may be discrimination on the part of a minority of landlords and letting agencies, that is because they have chosen not to comply with the spirit of the scheme, whether for their own perceived administrative convenience or some other economic advantage.

We have made it easy to carry out checks digitally, with no requirement for landlords, letting agents or employers to understand the types of documents renters and employees have. In some cases, it is actually easier to bring a migrant into employment or a residential tenancy agreement than a British citizen. We continue to work closely with the rental sector through landlord representative groups and have recently contacted Citizens Advice for further engagement. A considerable amount of work and thought has gone into this and it is governed under the code of practice, which is on GOV.UK.

The noble Lord, Lord German, asked about the economic impact on lawful migrants entering the country. Employers, landlords and letting agents may favour to employ and rent to British and Irish nationals, who they see as low risk as they do not have time-limited leave and do not require further checks. The lawful migrant may therefore choose not to enter the UK. But the Home Office has published the statutory code—it is on GOV.UK—on how to avoid unlawful discrimination when undertaking checks. The guidance clearly stipulates that employers, landlords and letting agents are advised to provide individuals with every opportunity to demonstrate their right to work or rent. They should not discriminate on the basis of nationality, or any of the other protected characteristics. It is clear that those who discriminate are breaking the law.

Employers, landlords and letting agencies are encouraged to familiarise themselves with the guidance and the statutory codes of practice. It is considered that any indirect discrimination in this limb is justified as a proportionate means of achieving a legitimate aim: operating and enforcing a fair immigration system, protecting taxpayer-funded services and protecting vulnerable migrants from exploitation by seeking compliance with regulation.

I have already dealt with the consultation. However, I should also say that the Home Office is not under a duty to consult but, since the proposals to increase the civil penalties were announced in August, it has undertaken proactive, wide-reaching communications with employers, landlords and letting agents. Home Office officials have supported over 30 forum events as of 12 January and reached over 11,000 stakeholders in the sectors. It is clearly wrong for stakeholders to say they have not had an opportunity to be made aware of the Government’s intentions.

We used an economic note instead of an impact assessment because the costs for non-compliant landlords, employers and letting agents were not taken into account, so the better regulation threshold was not met. Our published economic note shows that a total increase of around £16 million might be expected over five years after higher penalties come into force. This is the central scenario and measures receipt changes for the right-to-work and right-to-rent schemes combined. There is uncertainty on this figure for several reasons, including the number of civil penalties issued and the recovery rate to expect for civil penalties of higher values than seen historically.

On enforcement activity, between January 2023 and November 2023, more than 1,400 right-to-work civil penalties were issued; that is an increase of 40% on the same period in 2022. The value of the right-to-work civil penalties issued was more than £26 million, which is 45% more than in the same period in 2022. Between January 2023 and the end of September 2023, 10,509 enforcement visits took place, of which 4,721 were illegal working enforcement visits. In 2022, 6,865 enforcement visits took place, of which 2,808 were illegal working enforcement visits. Illegal working enforcement visits have increased by more than 40% in 2023 from the same period in 2022.

The noble Lord, Lord German, asked where the funds go. They are collected from civil penalties and are required to be paid into the Consolidated Fund after deductions from processing costs.

I think I have dealt with all of the questions. I have committed to write to my noble friend Lord Lilley on the DWP-related matters. Addressing illegal working and renting not only protects the domestic labour and housing market but identifies unscrupulous employers, landlords and letting agents who exploit vulnerable migrants. Equally, it ensures that only those in the UK legally with permission to work and rent are able to do so. On that basis, I commend these orders to the Committee.

Motions agreed.

Misuse of Drugs Act 1971 (Amendment) Order 2024

Lord Sharpe of Epsom Excerpts

Tuesday 16th January 2024 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Misuse of Drugs Act 1971 (Amendment) Order 2024.

Relevant document: 7th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, this draft order, which was laid before Parliament on 27 November last year, proposes amendments to the Misuse of Drugs Act 1971 to control 15 substances as class A drugs, four substances as class B drugs and one substance as a class C drug. To achieve this, it proposes amendments to Schedule 2 to that Act, which sets out what drugs are controlled and their classification.

Fifteen synthetic opioids, including 14 nitazenes, will be controlled as class A drugs under the 1971 Act. This follows recommendations from the Advisory Council on the Misuse of Drugs in its report of 18 July 2022 and addenda of 19 December 2022 and 6 October 2023. The Government commissioned the ACMD for its advice following international control of three of the synthetic opioids—at this point, I beg noble Lords’ indulgence because pronouncing some of these names is not easy; they are isotonitazene, metonitazene and brorphine—under Schedule 1 to the United Nations Single Convention on Narcotic Drugs 1961, to which the UK is a signatory.

In addition to reviewing these substances, the ACMD considered the harms of other similar synthetic opioids and concluded that they pose serious acute health risks, reinforced by reports of their involvement in a number of drug-related deaths and near-fatal overdoses. The ACMD determined that their potency and availability present a significant potential threat to public health and therefore recommended the highest level of control as class A drugs under the 1971 Act. This is for all 15 synthetic opioids, including the three controlled internationally.

Additionally, three stimulants—diphenidine, ephenidine and methoxyphenidine—will be controlled as class B drugs under the 1971 Act by this order. This follows international control of diphenidine under Schedule 2 to the United Nations Convention on Psychotropic Substances 1971 in April 2021, after which the Government commissioned the ACMD to review its harms. In its report of 25 May 2023, the ACMD noted the involvement of these substances in a number of drug-related deaths worldwide and recommended that they be controlled as class B drugs under the 1971 Act. This is in line with similar dissociative class B drugs, such as ketamine.

Also to be controlled as a class B drug is Cumyl-PeGaClone, a synthetic cannabinoid receptor agonist—SCRA—which, similarly to diphenidine, was added to Schedule 2 to the United Nations Convention on Psychotropic Substances 1971 in April 2021. Many SCRAs are currently controlled as class B drugs under a generic definition in the 1971 Act. However, owing to its structure, Cumyl-PeGaClone falls outside the generic definition. The ACMD report of 25 May 2023 recommended that the Government consult relevant stakeholders on modification to the definition, which the Government have agreed to do. In the meantime, to address the harm it poses and meet our international obligations more quickly, the Government have opted to control Cumyl-PeGaClone individually as a class B drug, in line with other SCRAs. We will consult on modifications to the generic definition in due course.

Finally, remimazolam, a benzodiazepine, will be controlled as a class C drug under the 1971 Act. Remimazolam is the active ingredient in a product given marketing authorisation, otherwise known as a medicines licence, by the Medicines and Healthcare products Regulatory Agency in 2021. The ACMD recommended in December 2022 that it should be controlled as a class C drug as its potential harms are commensurate with other benzodiazepine drugs already controlled under class C.

I am grateful to the ACMD for the comprehensive reports it has produced. Those reports have been the foundation of this legislation. According to the ACMD’s advice, all the substances are psychoactive and therefore potentially subject to the offences under the Psychoactive Substances Act 2016. The 2016 Act contains offences for the production, supply, possession with intent to supply, import or export of a psychoactive substance where a person knows, or is reckless as to whether, it will be consumed for its psychoactive effects. It does not, however, contain an offence for the simple possession of a psychoactive substance, other than in a custodial setting. Medicinal products are exempt from the provisions of the 2016 Act, and medicines based on remimazolam are therefore currently exempt.

The control of these substances under the 1971 Act would make it an offence to possess them and impose higher penalties and enforcement provisions for supply and production offences. Those found in unlawful possession of a class A drug could face up to seven years in prison, an unlimited fine or both. Meanwhile, those who supply or produce a class A drug could face up to life imprisonment, an unlimited fine or both.

One of the substances, remimazolam, has a known medicinal value in the UK as it has been granted a marketing authorisation. To enable its use in healthcare, remimazolam will be placed in part 1 of Schedule 4 to the Misuse of Drugs Regulations 2001 by a statutory instrument made under the negative procedure. It is the Government’s intention that it will come into force on the same date as this affirmative order. The other 19 substances will be placed in Schedule 1 to the 2001 regulations by that same negative statutory instrument. This is because they have no known medical or therapeutic value in the UK and will mean that they can ordinarily be accessed only under a Home Office-controlled drug licence. Again, this follows ACMD advice. Cumyl-PeGaClone will also be placed in Schedule 1, in line with other SCRAs already controlled under the 1971 Act and 2001 regulations.

These substances, excluding remimazolam, will therefore be added to part 1 of Schedule 1 to the Misuse of Drugs (Designation) (England, Wales and Scotland) Order 2015. Controlled drugs are designated where the Secretary of State is of the opinion that it is in the public interest for production, supply and possession of that drug to be wholly unlawful or unlawful except for research or other special purposes, or for medicinal use of the drug to be unlawful except under licence.

Drug misuse ruins lives and adversely affects society as a whole. The Government have a responsibility to protect the public, their safety and their health, and that is why we are proposing this action. As I have set out, these substances cause or have the potential to cause significant harm to both the individual who uses them and the communities in which they live, and must be subject to stricter controls. I commend this order to the Committee.

[Lord Allan of Hallam (LD)]

My Lords, in speaking for these Benches I would ordinarily speak from a health perspective. From our point of view, a lot of the drug abuse issues fall within that category. We are obviously dealing with a Home Office statutory instrument today, but I hope that the Minister will indulge me if I put some questions that come from that angle of considering the impact on individuals of the drugs we are due to control.

The first is around how we will monitor, in particular, the prevalence of the synthetic opioids that are to be classified by the instrument we are considering. I think we have all looked in horror at the situation in the United States, where the firewall that exists between heroin and other forms of drugs has broken down, in a sense, through the distribution of synthetic opioids to a much broader demographic who, it seems, feels more comfortable taking them than would feel comfortable taking heroin. But the medical harm is just as severe—in some cases, more severe—so I will be interested to hear from the Minister how the Government intend to monitor the prevalence and usage, particularly across different demographics, of these synthetic opioids, as well as prohibiting them, which is right. It is correct that we are following the advice of the advisory council here, but also really important that we understand the way in which these synthetic opioids are being consumed within the community.

The second issue I want to raise follows on from that, which is to consider how treatment services will deal with people who present because they have an addiction to the drugs we are considering. The numbers are quite stark: in 2021-22, just over 289,000 people presented for treatment services. Nearly half of them presented for opiate addictions and over 70% had mental health problems. It is critical to understand, as we broaden the net on the drugs that we bring into scope, how we will be able to respond to the people who come to the attention of the authorities because they are using these opiates—and get them off those. Just as important as any attempt to ensure that they are prosecuted is to get them out of that drug dependency and back into a normal state. Again, I want to understand what consideration has been given to how treatment services will need to be adapted to cover this broader range of synthetic opiates that we are bringing into scope.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we too welcome the amendments in this instrument. I will start with two specific questions and then make some more general comments.

First, beyond adding the specific substances which the Minister referred to in his speech and in the document, what more are the Government doing to address the risks posed to our communities from drugs more generally? The second question is about a particular drug, xylazine, a non-opioid veterinary anaesthetic that is being used in combination with synthetic opioids to devastating effect. I understand that the Minister for Crime wrote to the ACMD in June to ask it to consider the harms of this drug and that he is still waiting for a response. How long should the Minister for Crime expect to wait before he gets either action or a response to his letter about this drug?

Those are my two particular questions. More generally, I want to use the same structure as the noble Lord, Lord Allan. The first question he asked was about monitoring the prevalence and usage of synthetic opioids. As I mentioned in other speeches, including in the King’s Speech debate, I travelled to North America in the summer and went to Portland, Oregon. I also went to Seattle in Washington state. I was shocked by the amount of drug use on the streets. I saw hundreds if not thousands of people sleeping rough on the streets of those two cities. I saw people shooting up in front of me in the middle of those cities—and I had young children with me. It was a truly shocking sight.

While I was there, I visited a court that dealt with drug issues. I also had breakfast with a district attorney who is an elected prosecutor. We spoke about the way their current drug policy is working. What was interesting and depressing to me was the uniform agreement across the political spectrum that it was a disaster, yet they did not agree on the solution to that disaster; there was an ongoing political debate on it. The district attorney also said to me—it is relevant to this debate—that there is a strong suspicion, or belief, that synthetic opioids are getting into prescribed drugs. He told me that he had gone on holiday to Mexico but had forgotten some of his normal prescription drugs, so he had to go and buy the drugs while in Mexico. He became aware that synthetic opioids are illegitimately getting into prescribed drugs. This is a very worrying development; it is all over the internet in that part of the world. It is something that we should be aware of as a possible problem over here as well. It really is a huge issue. I am sure that the Minister is aware of it, but it would be good to hear what is being done to monitor the scale of this problem, which is potentially coming our way.

The second point made by the noble Lord, Lord Allan, was about treatment services and more drugs being brought into scope. I am quite worried about the experiments being carried out in Glasgow. I suppose that would be a good question for the Minister to answer: what monitoring are the UK Government doing on the experiments being done around drug treatment centres in Glasgow? I will leave it there.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their contributions to this short debate. I take on board the personal experience of the noble Lord, Lord Ponsonby, in the States; his observations are obviously extremely interesting. Perhaps it is worth pointing out that just under half of all drug poisoning deaths registered in this country in 2022 already involved an opiate of some sort. The noble Lord made some acute points; of course, the Government remain aware of the situation overseas and continue to monitor that as much as they monitor the situation here.

The noble Lord, Lord Ponsonby, asked me a specific question about xylazine. The ACMD is independent, so I cannot comment on its timeframes, but we are hoping for its response on this particular drug in early 2024. Obviously, we will come back to this as and when we have its response.

The noble Lord, Lord Allan, asked about monitoring and the noble Lord, Lord Ponsonby, backed that up. As I said, UK agencies are highly alert to the threat from synthetic drugs, including synthetic opioids such as fentanyl as well as synthetic cannabinoids and benzo- diazepines, which have been linked to drug-related deaths in this country. Along with law enforcement partners, the UK Government stand ready to respond to the threat from synthetic drugs. They have established a cross-government task force to monitor that threat and to lead and co-ordinate the government response to the risk from these synthetic opioids in the UK. The aim of the task force is to consider evidence-based policy; programmatic and legislative decisions in response to the level of risk; and the nature of synthetic opioids. Members of the task force include the Home Office, the Office for Health Improvement and Disparities, the Ministry of Justice, the National Crime Agency, HM Prison and Probation Service, Border Force and the police.

Through the UK’s drugs strategy, which was published in December 2021, we are implementing an end-to-end plan to disrupt the supply of all drugs at every stage of the supply chain from a source to the street. As part of that strategy, we have provided additional resources to the international networks of the NCA and the Home Office in key source and transit countries; this is for them to work with other Governments in identifying and disrupting cartels that seek to exploit the UK, as well as to seize drugs before and during their journey to the UK and the EU.

Also outlined in the strategy, we have increased the availability of naloxone, including naloxone nasal spray, to prevent drug-related deaths, and have committed to supporting local provision of a broader range of medicines, including newer medicines such as long-acting buprenorphine injection. We believe firmly in the importance of engaging with experts and delivery partners to respond swiftly to the evidence of emerging drug threats, including learning from international partners through international fora such as the US-led Global Coalition to Address Synthetic Drug Threats.

On the health situation that was brought up by both noble Lords, FRANK, the Government’s free drugs advice service, contains information on synthetic opioids, synthetic cannabinoids and benzodiazepines, which will be updated to reflect the changes when this legislation comes into force. The Department for Education has also worked with the Office for Health Improvement and Disparities to make sure that good-quality teaching resources are available for teachers providing drug, alcohol and tobacco education, and lesson plans on drugs, alcohol and tobacco are available on the PSHE Association website.

We are of course concerned that banning these substances will discourage people from access to treatment services, but the Government’s drugs strategy, From Harm to Hope, published in December 2021, is clear about the Government’s ambition to achieve stigma-free treatment, providing the full, positive impact of treatment services for those seeking help. But, noting the potential harms associated with misuse of these substances, we believe it is necessary to take action to restrict access to these drugs and reduce their misuse. Through the drugs strategy, we are investing more than £2.8 billion over three years to support people through treatment and recovery, which includes support for those who have used a range of drugs and suffered various health harms.

Of course, key to all this is reducing the demand for drugs. We are committed to reversing the rising trend of drug use in society, to protect vulnerable people from harm and exploitation. It enables us to keep our communities safe and we must therefore reduce the demand for drugs, which fuel violence and exploitative criminal markets. Around 3 million people in England and Wales report using drugs each year, putting themselves at risk and driving a violent and exploitative supply chain, including through so-called recreational drug use. Through programmes announced as part of the drugs strategy, such as drug testing on arrest, and our plans to roll out pilots to change behaviour and attitudes towards drug use, we will provide the powers and access to appropriate interventions and support. We also know that we need to step up action in addressing the visible forms of drug use within our communities, so we will work with our enforcement partners to see what more we can do to tackle this, while ensuring that those who need treatment and support are diverted into the appropriate services.

The noble Lord, Lord Allan, asked a very specific question about remimazolam. There are no known established legitimate uses for any of these substances except remimazolam. The Government recognise the importance of ensuring that that in particular remains available for legitimate and lawful purposes, so in line with the recommendations from the ACMD, remimazolam will be placed in part 1 of Schedule 4 to the 2001 regulations, as I said in my opening remarks. That will enable lawful access in healthcare settings, subject to the requirements of the 2001 regulations. The remaining 19 substances will be placed in Schedule 1, as I mentioned, and access will therefore be permitted only under a Home Office-controlled drug licence. That will ensure that organisations can still lawfully undertake research with these substances, should they choose to do so.

On the specific question about paramedics, that is a Department for Health situation: it would have to request that paramedics be able to prescribe or use this drug in the appropriate way. I hope that answers the questions that I have been asked and, again, I thank both noble Lords for their participation in this debate. These are dangerous substances with the potential to cause significant harm, and they should therefore be subject to the strict controls under the 1971 Act. With that, I commend this order to the Committee.

[Lord Ponsonby of Shulbrede (Lab)]

I specifically asked about the Glasgow drug consumption rooms and whether there is a UK oversight of the way they are operating, rather than just a Scottish Government oversight.

[Lord Sharpe of Epsom (Con)]

With apologies, I forgot that question and, as it happens, I also do not know the answer—so I will have to find out and write to the noble Lord.

Motion agreed.