EU: Justice and Home Affairs

Lord Taylor of Holbeach Excerpts

Wednesday 3rd July 2013 Grand Committee

Moved by

[Lord Taylor of Holbeach]

To move that the Grand Committee takes note of the report to Parliament on the application of Protocols 19 and 21 to the Treaty on European Union and the Treaty on the Functioning of the European Union in relation to EU justice and home affairs matters (Cm 8541).

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the previous Administration made a commitment to table a report each year on the operation of the JHA opt-in protocol. The Government agreed to maintain that pledge and have ensured that such reports cover not only decisions taken under the JHA opt-in but also those taken under the Schengen opt-out protocol. The Government have since published three such reports. The most recent of these, which is the subject of this debate, was published on 25 April this year. It covers opt-in decisions taken between 1 December 2011 and 30 November 2012.

I apologise that the annual report was later than usual this year. We aim for publication in January, but opt-in decisions included in the annual report fall to a wide range of government departments. The late publication of this year’s report was due to a delay in finalising data from across Whitehall. We regret this delay and will aim to ensure that the next annual report is published promptly.

During the period of the latest annual report, the Government took 35 decisions on UK participation in EU justice and home affairs proposals. Under the JHA opt-in protocol we opted in to 24 proposals and did not opt in to eight. The Government took three decisions under the Schengen protocol, choosing to remain bound in each case.

As the Committee will be aware, the Government have stated that we will take opt-in decisions on a case-by-case basis. We consider factors such as the impact of the measure on our security, civil liberties, the integrity of our criminal justice and common law systems and on the control of immigration. At the heart of it is a commitment to focus on the national interest. As such, we will only opt in where we believe it is in the UK’s interests to do so. Examples of proposals where we judged UK participation was in the national interest were the EU-US passenger name records agreement and a directive on data protection. Both of these agreements promise to assist law enforcement authorities in combating serious crime, while including all the necessary data protection safeguards.

Conversely, the Government decided not to opt in to a proposed directive on the freezing and confiscation of proceeds of crime. While we were sympathetic with the aims of this proposal, we had concerns that the published text posed risks to the UK’s domestic non-conviction-based confiscation regime, and therefore felt that it was too risky to opt in prior to negotiations, given that we would then be bound by the final text, once adopted. The Government also decided not to participate in the internal security fund regulation due to concerns over value for money. Despite our decisions in these latter cases, I note that the Government have taken an active role in both of these negotiations and will consider participation post-adoption should our negotiating objectives be met.

The Government have been clear that we want Parliament to play an important role. For this reason, we have further strengthened the role of Parliament in scrutinising opt-in decisions. My noble friend Lord Howell of Guildford’s Written Ministerial Statement of 21 January 2011 pledged to give Parliament as much opportunity as possible to comment on and influence future opt-in decisions. Under these new arrangements, we have committed to the setting aside of government time for a debate on opt-in decisions where there is a particularly strong parliamentary interest. The Government must also now report each opt-in decision to Parliament by a Written or, where appropriate, an oral Ministerial Statement. This procedure is now well practised.

The commitments included in that Statement, to give Parliament more of a say in opt-in decisions, are something which the Government take very seriously. I emphasise to the Grand Committee that we are keenly aware of the essential need to make these new arrangements work on a practical level. To this end, noble Lords will be aware that following extensive consultation with interested parties, including our own European Union Committee, the Government have recently finalised an internal code of practice. Through the code we hope to reach and maintain a consistently high standard across government in respect of handling the parliamentary scrutiny aspects of future opt-in decisions.

I do not plan to dwell on more recent opt-in decisions today because they will be covered by the next annual report to be published early next year, and before then in our six-monthly update to the European Union Committee. However, I note that since 30 November 2012, the Government have taken a further 10 decisions under the JHA opt-in protocol, opting in on seven occasions. No decisions were taken under the Schengen protocol during the period.

I hope that this is a good introduction to the background of the report we have presented to Parliament. I commend it to the Grand Committee and I beg to move.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, this has been a good debate. I would love to be able to amaze the noble Lord, Lord Rosser. I will do my best, but he is quite right in assuming that some of the questions are quite detailed. However, I am becoming more informed every minute, as the noble Lord can see, which is a very helpful support. I think that the noble Lord and I start off as relative novices in this esoteric part of the Home Office brief. We bow to the expertise to which we have had the opportunity of listening. However, I have found in the briefings which I have had that this is a fascinating and important area of government with real effects on how the Government operate and on the lives of the citizens of our country.

I am delighted that my noble friend Lord Taverne takes the view that our approach of being pragmatic and looking at issues on their merits is the right one. That is certainly true, and I have been impressed by the rigour with which this process has been pursued by the Government.

The Government are fully committed to engaging with Parliament on European Union issues and on the opt-in in particular. As such, the debate has been useful. Indeed, as noble Lords have mentioned, this is the second time this week we have considered the implications of this. This is a more general debate; we had a specific debate on Europol on the Floor of the House on Monday. This shows the seriousness with which the Government take these matters. During the period of this report, your Lordships have debated two other decisions on UK participation in EU measures: one on data protection and the other on the confiscation of criminal assets.

I will commence by going through points that noble Lords have made. I am grateful to the noble Baroness, Lady Corston, for her contribution. She started off with a modest reprimand which was reinforced by the noble Lord, Lord Boswell, that we were late. I acknowledge that, but we have plans and do not want this to happen again. We will be providing a report in January. We understand how important that is.

The noble Baroness also rightly asked that the committee be given enough time to consider our proposals. The committee exists to scrutinise, and we want to facilitate that. That is the intention of the code of practice. We are conscious of the time constraints on the committee and, indeed, sometimes on the process in which we are engaged. We will seek to keep the committee informed of what is in development, as well as providing Explanatory Memoranda promptly.

The noble Baroness regretted our decision not to opt in to the justice programme. My noble friend Lord Taverne also expressed concerns about this. We have said that we will consider seeking to opt in after it is agreed, if there is evidence to show that it is worth while. We take note of what the noble Baroness has said and would welcome any further evidence she or interested parties may wish to submit so that my right honourable friend the Justice Secretary can consider it at the appropriate time.

My noble friend Lord Taverne asked what the sums involved are. That issue remains under negotiation. The sums will depend on the nature and outcome of negotiations.

The noble Baroness mentioned the committee’s advice on civil and criminal measures. I completely agree with her about the measure concerning the estate of a deceased person and the directive on access to lawyers. Certainly, there needs to be a cautious approach in both cases because of civil and criminal law. On the question of a common European sales law, I agree it risks causing some legal uncertainly. However, the opt-in does not apply to the measure since it has been brought forward only as an internal market measure not as a justice measure.

My noble friend Lord Taverne wanted more detail on the reasons for the decision not to opt in to the internal security fund. The sums involved are still unclear as discussions on the EU budget remain under negotiation. However, we have committed to review the decision post-adoption and will consult Parliament then. He asked also why the merger of Europol and CEPOL is not a good thing. Noble Lords who were present at the debate on Monday evening will have heard me explain the Government’s position on this measure. We are concerned that by combining the two we are going to dilute the core functions of Europol. We do not believe that is in our interests.

The noble Lord, Lord Boswell, asked what was happening to our mid-year reports. Given this report was presented late, will our mid-year report be late? We plan to send it to the committee this month. We are catching up, and I hope we will continue to be on time in the future. The noble Lord—I keep thinking of him as my noble friend but given his now exalted position I have to reduce my friendship with him as we need to be at arm’s length and it is difficult to do—asked whether the Government’s position on the interpretation of the opt-in had changed. The Government believe that any measure including substantial JHA content triggers the opt-in protocol irrespective of whether it has been categorised as a JHA measure by the EU by, as he says, the citation of a JHA legal base. We often assert that the opt-in applies to measures that are predominantly non-JHA but which include a binding JHA content. That is what is determining policy. The Government have not changed their position in that regard, but it is very important to emphasise that it is the binding JHA content that triggers the opt-in procedure.

The noble Lord also asked about the inaccuracies that had crept into the annual report in the matter of legal bases. There was an administrative error in relation to the correct legal bases. The Secretary of State wrote to the chair to explain that the correct bases for the Turkey social security measure were Articles 289 and 48 TEU and on assurance mediation were Articles 53(1) and 62 TEU.

The noble Lord also asked whether we had ever successfully negotiated a change of legal base. We have done so in the case of a directive on road transport offences, which secured unanimity in the Council to change the transport legal base to a JHA legal base on police co-operation. We did not, in fact, opt into that measure.

As regards further information on the Government’s position on the 2014 opt-out, all noble Lords would like to receive it as quickly as possible. The Government’s position is that we will keep Parliament informed.

The noble Lord, Lord Rosser, asked about the question asked by his noble friend Lady Smith of Basildon in the Europol debate about opt-in decisions pending. I had hoped that the noble Lord would ask about that because I can place this on record and save myself a stamp. Among others, we have opt-in decisions pending on the directive on legal migration, a co-operation agreement with Indonesia, a mandate for an agreement with Cuba, an association agreement with Ukraine, a mandate for an EU-China investment agreement and the Europol decision, as the noble Lord will know. All are being managed within required deadlines.

Talking of the Europol debate, the noble Lord asked which law enforcement agencies say that we should not opt into Europol. The Government are yet to take a decision on the new Europol regulation and in the decision-making process we have been consulting a number of law enforcement colleagues, including the Met police and SOCA, on the options. Given that the decision-making process is ongoing, I cannot give any further detail on that matter.

The noble Lord also asked when the debate will take place. I gave a commitment that Parliament would be informed of the decision and I have little doubt that the debate in the other place will be tabled for consideration before the Recess. We are committed to a debate on the Europol regulation and are seeking to arrange for it to take place before the House rises.

The noble Lord asked about the European surveillance order, which I remember the noble Lord, Lord Hannay, talking about. I asked about that because I could not find any record of it. I think the reference was to the European supervision order, but the noble Lord, Lord Hannay, is normally so reliable, I can understand why the noble Lord, Lord Rosser, followed up on this matter. However, this measure was agreed under the pre-Lisbon arrangements and would fall within the Protocol 36 decision. The Government will determine their approach to implementation when the decision on that protocol has been made.

The final issue on which I have a note here was about the measures in Annexe 1 to our report. Would the Government be forced to leave if we took a block opt-out decision in 2014? I cannot give noble Lords a definitive answer until we have completed our discussions with the Commission on the measures that we would intend to rejoin. We regard the legal thresholds of practical operability and coherence to be a high bar. I hope that I have surprised the noble Lord, Lord Rosser, to some degree but not in absolute terms, and there are some points that I should like to cover in correspondence. I will not have saved a postage stamp, after all.

If we look to the future, it is not possible to say what proposals regarding an opt-in will be brought forward over the remainder of this year. In the report, we have given an indication of what we expect to happen based on work programmes, our knowledge of dossiers which are being considered, those which were carried over from last year and discussions we are having on an ongoing basis with our European partners. The Government have been very clear that we will take opt-in decisions on a case-by-case basis, so noble Lords will understand that it is not appropriate for me to comment on whether we will opt in to any new proposal that might come forward in coming months. I can give a commitment that whatever happens, we hope that the committee will work with us in scrutinising these matters and we will give Parliament as a whole the opportunity to be engaged in this important part of democratic scrutiny of European policy.

We expect a number of EU measures to emerge that will trigger a European opt-in decision. Most significant is the new Eurojust regulation which we expect to be published this month. At the same time, there is likely to be a proposal for a European public prosecutor. We expect that, as with the Europol proposal, the Eurojust opt-in decision will be subject to parliamentary debates in government time. Noble Lords will be aware that the Government have already indicated that we will not participate in the European public prosecutor. We also anticipate the publication of proposals on combating money laundering. After long negotiations, it is possible that an EU-Canada passenger names records agreement will be signed and concluded triggering opt-in decisions. I understand that the Ministry of Justice is anticipating proposals on special safeguards in criminal procedures for vulnerable suspected or accused persons and an initiative regarding legal aid in criminal proceedings. It is also possible that new initiatives on e-justice and the law applicable to contractual and non-contractual obligations will emerge.

Additionally, it is usually the case that we expect a number of further opt-in decisions will fall to other government departments during this period. I assure noble Lords that as the lead government departments on the opt-in the Home Office and the Ministry of Justice are committed to providing advice and assistance to other departments which are grappling with what can be quite a complex policy area.

I look forward to the participation of the European Union Committee and, in particular, the specialist committee headed by the noble Baroness, Lady Corston. Our next annual report covering the period 2012-13 will be laid before the House in January.

Motion agreed.

Europol Regulation: European Union Opt-In

Lord Taylor of Holbeach Excerpts

Monday 1st July 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I am grateful to the noble Lord, Lord Hannay, and the European Union Committee for calling this debate. I am pleased that we have had such a wide-ranging discussion, although some noble Lords have made a little bit of fun with expressions such as “hokey-cokey”. At bottom, the debate has been firmly rooted in the issues that the Government are having to consider and deliberate on. I think that noble Lords have taken their cue from the report and I am therefore extremely grateful to the noble Lord, Lord Hannay, and his committee for the clarity with which the report presents the issues before the Government.

I must say right now that the Government have not decided whether to opt in to the measure at this stage. The arguments are finely balanced. I do not feel that this decision has been overshadowed by any other decision which is also before the Government at this time. The point made in the committee’s report is that Europol and its future is an entirely separate issue. The noble Lords, Lord Judd and Lord Foulkes, referred to the importance of Europol in the fight against cross-border crime.

We also need to protect the independence of our own law enforcement agencies and there are elements in the draft measure which cause us concern. We therefore need to decide whether it would be better to opt in at this stage and use our vote in the negotiations to try to improve the proposal or to stay out for now and reconsider our position once the final text is agreed. Both options are open to us.

In saying that, I want to be clear that we strongly support Europol as it currently operates. As noble Lords have pointed out, we work very closely with it in tackling many serious offences, such as people smuggling and online child abuse. My noble friend Lord Sharkey gave some detailed examples of where Europol has been important in tackling cross-border crime affecting this country. Indeed, the noble Baroness, Lady Smith, also recognised that point of view. Europol provides real benefits to our law enforcement agencies. It is an effective and well run organisation with strong leadership. Indeed, as noble Lords have pointed out, with a Briton as its director, the UK plays an important part.

However, we are worried that some aspects of the new proposals may risk making our law enforcement agencies accountable to Europol, which would be a different thing. Policing is a core function of a sovereign country and must remain a member state responsibility. Perhaps I may illustrate this with an example. I refer to the proposals on police training. I am pleased that the European Union Committee shares our concerns about the proposed merger between the European Police College and Europol. The noble Lord, Lord Hannay, confirmed that in his opening speech. However, the Commission’s proposals go beyond the merger. They would give the Europol academy a much broader role than CEPOL currently has in police training, significantly expanding the EU’s responsibilities in an area that really should be left to member states.

We also have concerns about the stronger obligation to give Europol data, to which I shall perhaps return later in response to contributions. We accept of course that Europol needs good-quality intelligence from member states if it is to do its job properly. This country has a good record in that respect. But the new regulation goes far beyond specifying exactly what must be shared and in what circumstances. It does not allow us to withhold information that would threaten national security or harm an ongoing investigation. That worries us because it seems to undermine the control of member states over their law enforcement intelligence. Another factor we perhaps need to bear in mind is that it also risks overwhelming Europol with data provided by member states without regard to its quality simply to avoid being taken to the European Court of Justice.

Another concern is the provision that allows Europol to ask member states’ law enforcement agencies to carry out investigations. Europol already has some powers in this area but the new regulations strengthen them, which suggests a presumption that a member state will comply with Europol’s request. Any reason for not complying could be subject to challenge before the ECJ. Indeed, my noble friend Lord Sharkey acknowledged that this was a risk. We would have real concerns if that led to the European courts judging our policing priorities.

The committee has argued that we should opt into the text and negotiate out these provisions. That is an option, especially as opting in before 30 July would give us a vote in the negotiations. However, the proposal is subject to qualified majority voting, so if we did opt in we could still be out-voted. We would then be bound by the outcome even if we did not get the changes we were seeking.

It is right to bear in mind that the decision to stay out at this stage will not necessarily exclude us from Europol for ever. We would remain involved in the negotiations and would have another chance to take part once the measure had been adopted. That would give us the advantage of knowing exactly what the regulation would require of us before we signed up to it but with the offset of having no vote in the negotiations.

[Lord Foulkes of Cumnock]

My Lords, while the Minister is going through these arguments, perhaps he could explain why he has had no support from his own Back-Benchers and why none of the people who gave evidence to the sub-committee supported his point of view? Why has he not been able to persuade anyone inside or outside this House?

[Lord Judd]

I am rather confused by what the Minister is saying. Do the Government agree that we best look to our interests on international crime and terrorism by being in an arrangement which ensures maximum European operational effectiveness? If they do agree that that is the case, how will we make sure that the regulation is what it should be if we sit on the sidelines, wait until others have decided and then make up our minds as to whether or not we want to join?

[Lord Taylor of Holbeach]

I have clearly said that we are not determining whether we will be in the negotiations or sitting and observing them. We are not likely to be passive—this Government are not inclined to be passive—and we shall certainly not be passive on an issue in which this country plays an important part, such as the future of Europol.

I am trying to be even handed on the issue. The Government have not made up their mind. We recognise that there are differences. That is why I have made clear that there are advantages in being a party to the negotiations having opted in, but I also pointed out the disadvantages that we might not achieve what we want to achieve through those negotiations and we would not have the freedom to negotiate from outside if we did not opt in. That is a reasonable position to present and I hope that noble Lords will accept it. There are strong arguments either way and the Government have not yet decided which option they will take.

Let me now deal with some of the points raised by the committee in its report. We agree that the data protection provisions in the regulation should take full account of the draft data protection directive and regulation. We also support appropriate scrutiny of Europol by the European Parliament and national Parliaments, a point made by the noble Lord, Lord Hannay. However, we would need to know how the proposals to disclose classified information to the European Parliament might work.

The noble Lord, Lord Hannay, said that US information is higher than other member states. I can confirm that the UK is currently in the top three countries that provide data. As I have indicated to noble Lords, whether or not we opt in, we will fully participate in negotiations and work closely with member states to seek the necessary amendments to these draft proposals. In response to the question put by the noble Lord, Lord Hannay, on retaining CEPOL, following the announcement of the closure of the Bramshill site, the Government’s priority is now to relocate the College of Policing so that it will be put on as strong a footing as possible to support policing in the UK. Other member states have expressed an interest in accommodating CEPOL, and there seems little point in insisting that it should stay in the UK just for the sake of it. We expect that the new proposal will repeal and replace the existing Europol Council decisions, although this does remain subject to negotiation. No final decisions have been made as to whether the Government will seek to rejoin as part of the wider 2014 opt-out decision. That decision has not been determined.

The noble Lord also asked why the debate scheduled for 3 July in another place was postponed and whether it will be reinstated. In truth, the debate was postponed to give the Government more time to consider the important voice of the opt-in and to reach a final view on it. The noble Lord will be aware that opt-in debates in another place are held on a Motion setting out the Government’s position. As I said earlier, we have not yet reached a decision on what that position will be. However, the Government are clear about their intention to hold a debate on this matter in another place, and such a debate will take place.

[Baroness Smith of Basildon]

My Lords, I apologise to the noble Lord because he has been generous in giving way. He has said that time will be made for the other place to debate this issue once the government decision has been made. The decision has to be taken by 30 July, which is the last sitting day in your Lordships’ House before the Summer Recess. However, the other place will finish around two weeks earlier. Can I have an assurance that, if the decision is taken between the other place rising and 30 July when this House rises, the noble Lord will make an Oral Statement so that we can debate the issue on the basis of the decision that is made, not the theory of the decision?

[Lord Taylor of Holbeach]

I imagine that I will be able to tell noble Lords that it is highly probable that a decision will be made before the other place rises, rather than before 30 July. The business of this House is a matter for the usual channels and I place myself in their hands. However, I would want to communicate any decision of this importance to the House and, indeed, to Parliament. I am sure that that will be acknowledged by my noble friends who occupy the usual channels.

My noble friend Lord Sharkey is correct to say that there are numerous examples of good co-operation. He illustrated the virtues of Europol and why, notwithstanding the discussions on whether to opt in or to let it run and then negotiate, it is such an important institution and we support it. I am aware that we share common ground with other member states on some issues, but there are no guarantees. The issues are subject to qualified majority voting and there have not been any detailed negotiations that have allowed us to gain a clear idea of how much support we have for our concerns. Should we not succeed in amending it, we would be bound by the final text, and that is a matter of concern to the Government.

Perhaps I may respond to the noble Lord, Lord Foulkes. I should like to highlight that there are two separate issues here: the block opt-out and the Europol negotiations. The two issues are not being confused and this debate is about the Europol regulation, not the opt-out.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Taylor of Holbeach]

If the noble Lord will forgive me, I am going to run out of time.

[Lord Foulkes of Cumnock]

My notice said that the House would rise at 10 pm, so we have an hour and a half. I wonder if the Minister will think again because the two issues are related. The recommendation I read out indicates that they are related. If you opt in and there is a block opt-out, and then you have to opt in again, there must be a relationship between the two.

The Minister and I know a little about another member state of the European Union, la belle France. The French are just as concerned about their national interest, their policing and the other concerns that he has expressed. Why does he think that they do not have the same anxiety that this Government seem to be expressing?

[Lord Taylor of Holbeach]

That is exactly the point that I have been trying to lay before the House and why the Government are deliberating carefully on this. It is a matter of common interest across European countries and of measuring that common interest. This is all a worthwhile endeavour but it requires the national interest to be taken into account. That is the background against which the Government are making this decision. Of course, there is a big issue about the general opt-out but this decision stands alone and is being considered by the committee and by the Government on its own merits. I have tried to demonstrate that this is an even-handed consideration of the issue.

I say to the noble Baroness that, whatever our decision, negotiations are important for us in ensuring the operational independence of law enforcement agencies and the security of our citizens. We expect there to be some common ground among member states, such as la belle France, if the noble Lord, Lord Foulkes, was referring to the interests that a number of noble Lords in the Chamber at the moment have. We are committed to ensuring the best possible outcome from these negotiations. We will need to consider the proposals in detail as the negotiations progress but we agree that strong data protection, for example, is important. The regulations here will need to reflect the data protection provisions being negotiated elsewhere. None is likely to change during the negotiating position. The noble Baroness asked how many other measures are awaiting an opt-in. I know of no others but will seek to find out and let her know if there are any.

This good-natured and deep-thinking debate, despite the hokey-cokey allusions, has considered the seriousness of this issue. As the noble Lord, Lord Judd, said, the security of the country requires us to make sure that law enforcement agencies have the co-operation they need from other European countries. I stress that the Government still have an open mind on the issue. We will of course consider the view of your Lordships’ House and the arguments made by noble Lords here tonight very carefully before we make our decision. I assure the House that the Government will ensure that this House, and Parliament are kept informed about that decision.

[Lord Hannay of Chiswick]

My Lords, this has been a relatively brief debate, and I hasten to assure those faithful few still here that I do not intend to apply Professor Parkinson’s law and use all the time available to wind it up. I think that the common point among all noble Lords who participated was the recognition that serious crime is an international problem now and that we need a great deal of co-operation to deal with it. That really was agreed by everyone. The noble Baroness, Lady Smith of Basildon, said that crime does not stop at Calais. I sometimes think that some of the Government’s supporters believe that crime starts at Calais, but we can leave that on one side. The fact is that it occurs on both sides of the Channel and the perpetrators are more and more imaginative about their use of technology and very rapid and easy travel, and all the other tricks of the trade, and that is why we need this sort of co-operation to deal with it.

I thank the faithful members of the sub-committee that I chair, the noble Lords, Lord Sharkey and Lord Judd, for having participated in this debate. The noble Lord, Lord Sharkey, very helpfully drew our attention to some of the practical consequences of Europol co-operation. Sometimes our debates must seem a bit theoretical, but he brought us firmly back to earth. The noble Lord, Lord Foulkes, who is on the EU Select Committee, was also very convincing.

Even I find this opt-in and opt-out business pretty confusing sometimes. We should remember, if we find it infuriatingly confusing, that it is entirely of our own making. No other member state goes through these agonies. This is an exercise in sadomasochism. I am not contesting it because I know how it came about. The various previous Governments who negotiated these rather complex arrangements were justified in doing so, in my view, but the complications are of our own making, so we should not get too irritated by them even though they are difficult to understand.

To answer a question asked by the noble Baroness, Lady Smith—the noble Lord did not answer it—first, there is the directive on the proceeds of crime, which your Lordships’ committee recommended the Government should opt into. The Government did not opt in, but they have not excluded opting in at the adoption stage. That is the position which the noble Lord described in relation to Europol. Rather more seriously, there is the European surveillance order, in which the Government do not have an opt-in or an opt-out; they have simply failed to implement a piece of European legislation which they agreed to. It came into force throughout the European Union in December last year.

The European surveillance order is actually rather important for British citizens because it provides the possibility for someone who is subject to a European arrest warrant to be bailed in their own country: that is, to stay in this country and avoid being taken to, say, some insalubrious jail in Greece where they are kept while awaiting trial. My own view, and that of everybody who participated last week in the very good seminar in which the noble Lord’s colleague, James Brokenshire, participated very positively, is that it is unconscionable that we have not opted into this. Apparently the reason is that the Government did not wish to pre-empt the view they were going to take on the European arrest warrant, but as a result of that decision there are British citizens who are not able to make use of the European surveillance order and be bailed in this country. That number will grow as the delay grows.

Turning to the purpose of the debate—the Europol regulation—I am most grateful to the noble Lord, Lord Taylor, for his habitually calm and friendly presentation of his position. I think I understand the complexities of the timing in the other place. The window of opportunity is rather modest, since the other place goes away on 18 July. It is the normal practice to give it one week’s notice of a government Motion, which takes us to 11 or 12 July, but after all that will be after 5 July, and we all know what is happening on 5 July in the other place on matters European.

I thank the noble Lord for his very helpful response about how he would keep the House informed of a decision by the Government. I am sure that it can be done in a light and easy way. Of course, there is no question of another debate of this sort, but if he could find a way of doing that, it would be really helpful, and I accept his undertakings on that with great thanks.

Undercover Policing

Lord Taylor of Holbeach Excerpts

Monday 24th June 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, with the leave of the House, I will repeat a Statement made by my right honourable friend Mrs Theresa May in the House of Commons earlier today. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement about the latest allegations concerning the use of undercover officers to smear the reputations of Doreen and Neville Lawrence and Duwayne Brooks. These allegations follow several serious claims about the activities of police officers engaged in undercover operations, and I would like to update the House on the several investigations and inquiries into the conduct of these officers. But before I do so, I know the whole House will want to convey their support for the Lawrence family. They experienced an unspeakable tragedy; their pain was compounded by the many years in which justice was not done; and these latest allegations, still coming 20 years after Stephen’s murder, only add to their suffering. I know, too, that the House will agree with me about the seriousness of allegations concerning police corruption and wrongdoing. We must be ruthless in purging such behaviour from their ranks.

As Members of this House will remember, in February I announced that the Commissioner of the Metropolitan Police had agreed that Mick Creedon, the Chief Constable of Derbyshire Constabulary, would investigate allegations of improper practice and misconduct by the Metropolitan Police’s special demonstration squad, which for around 40 years specialised in undercover operations.

Mick Creedon took over a Metropolitan Police investigation called Operation Herne, and in addition to these latest allegations about the Lawrence family, Operation Herne is also looking into claims about the use by police officers of dead children’s identities, the conduct of officers who had infiltrated environmentalist groups and other serious matters. Given the nature of those allegations and the many years the special demonstration squad was in existence, we should not be surprised if further allegations are made, and I want to be clear that all such allegations will be investigated.

Operation Herne is led by Chief Constable Creedon and elements are supervised by the Independent Police Complaints Commission. I can tell the House today that the Metropolitan Police are also referring details of the new set of allegations to the IPCC, meaning that this aspect of the investigation will also be supervised. I know that some Members have suggested that the IPCC should take over Operation Herne completely, and that is an understandable reaction. I spoke to Dame Anne Owers, the chairman of the IPCC, earlier today, and I can tell the House that she does not believe a greater degree of IPCC control would enhance the investigation, but I can confirm that where the Creedon investigation finds evidence of criminal behaviour or misconduct by police officers, the IPCC will investigate and the officers will be brought to justice.

I have also spoken to Mick Creedon today. He told me that the first strand of his work regarding the allegations about the identities of dead children will report before the House rises for Summer Recess. At present, there are 23 police officers working on the case, with a further 10 police staff working in support. In the course of their investigation they have already examined in the region of 55,000 documents and have started to interview witnesses, including police officers who worked in the special demonstration squad.

I want to emphasise that undercover operations are a vital part of protecting the public, but it needs very detailed supervision, and undercover operations need constant reassessment to ensure that what is being done is justified. For obvious reasons, members of the public cannot know the details of the police’s undercover operations, but we need to have the assurance that this work is conducted properly, in accordance with a procedure that ensures that ethical lines are respected.

In February last year, Her Majesty’s Inspectorate of Constabulary reported on how forces go about undercover policing. This work was undertaken partly in response to allegations about the conduct of a police officer named Mark Kennedy, who had been tasked to infiltrate an environmental protest group. HMIC’s report made a series of recommendations designed to improve the procedures that police forces have in place for managing and scrutinising the deployment of undercover officers. Among other recommendations, HMIC said that the authorisation arrangements for high-risk undercover deployments should be improved and that additional controls should be put in place where a deployment is intended to gather intelligence rather than evidence.

Since March this year, HMIC has been working on a further report that will check on how the police have implemented its recommendations, and I can tell the House that this report is due to be published on Thursday. I can also tell the House that Tom Winsor, the new chief inspector, plans to undertake a further review of undercover police work later this year.

Last week, my right honourable friend the Minister of State for Policing and Criminal Justice told the Home Affairs Select Committee that the Government intend to bring forward legislation to require law enforcement authorities to obtain the prior approval of the Office of Surveillance Commissioners before renewing the deployment of an undercover officer for a period exceeding 12 months. In future, authorisation should also be sought under the Regulation of Investigatory Powers Act for any activity to develop a cover persona.

I want to turn now to the allegations regarding the Lawrence family. The investigation into Stephen’s murder has cast a long shadow over policing, especially in London. That is why, in July last year, I asked Mark Ellison QC to investigate allegations of deliberate incompetence and corruption on the part of officers involved in the original investigation into the murder. Mr Ellison was the lead barrister in the successful prosecutions of Gary Dobson and David Norris, and he was supported by Alison Morgan, junior counsel from the prosecution.

I have spoken to Mr Ellison today, and I encouraged him to go as far and wide as he would like in his investigation. I have also spoken to Mick Creedon to make sure that Mr Ellison will have access to any relevant material uncovered in the course of Operation Herne. We must await the findings of the Ellison review, which, given the latest allegations, will be published later than originally intended. When the review concludes, a decision will have to be made on whether its findings should lead to any formal police investigations.

I am determined that we should have zero tolerance of police corruption and wrongdoing. That is why the Government are beefing up the IPCC, making the inspectorate more independent, and why we asked the College of Policing to establish a code of ethics for police officers.

As the House knows, I have also launched a panel inquiry into the murder of Daniel Morgan, and I am determined that we get to the bottom of these latest allegations. We must do so to ensure public confidence in the police and the criminal justice system, not least for the sake of Doreen and Neville Lawrence, and for the memory of their son Stephen. I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, there is no doubting the seriousness of these allegations, nor indeed the determination of the Home Office, and the Home Secretary in particular, to expedite investigations and report the conclusions of those investigations to Parliament. I emphasise that elements of the inquiries in Operation Herne, the Creedon investigation, will be reported to the Home Secretary and in turn to Parliament as the sections of those investigations are concluded. A Statement will be made to the House before it rises in the summer on the particular aspects that were mentioned by the noble Baroness.

I think it is true to say that police officers are just as appalled as Members of this House at these latest allegations which, if they are true, suggest a mindset that existed in those days, quite some time ago now, which sought to discredit victims. That is an intolerable thing for policing to accept. The Home Office is determined to pursue these matters.

There has been some criticism. I was in the other place earlier and heard the Opposition there suggest that perhaps what we need is one big investigation. I think that the current investigations are actually making considerable progress. The burden of the new allegations will, of course, add to the work that needs to be done. We will make sure that the work is properly resourced and that Parliament hears about the progress of the reports.

Mark Ellison QC has indicated to the Home Secretary that the inquiry of his team is going much wider than just using Metropolitan Police Service files. Because of that, and because of the allegations that are involved, the inquiry is going to take longer to come to its conclusions, but it hopes to report in the late autumn. The Ellison review is working with other investigations. The allegations made in the media today will form part of Ellison’s task, as well as forming part of Mick Creedon’s own investigations through Operation Herne.

I hope I can reassure the noble Baroness that we understand her determination to get to the bottom of this, but I think that the police as a profession want to do so as well, to make sure that we know how these things happened in the past and that there is no risk of them happening in this day and age.

[Earl Attlee]

My Lords, for the benefit of the House, perhaps I may remind noble Lords that short questions should be put to the Minister in order that my noble friend can answer as many as possible.

[Lord Fowler]

My Lords, I was the shadow Home Secretary at the time of the Macpherson report, and like the then Home Secretary, Mr Straw, I did not hear a whisper of this. This is a vastly serious charge to make against the police. Perhaps the assumption is that nothing of this kind would happen today, but I think the Andrew Mitchell case shows that that is not necessarily true. I wonder if the time has come when, in addition to the criminal inquiries that have been set up, there should be one public inquiry to look at the whole question of police ethics. Would not that be to the benefit of the police and the public?

[Lord Taylor of Holbeach]

My Lords, I can understand the concern of my noble friend, who speaks from considerable experience of these matters. As he will know, the Home Secretary has set up the College of Policing, one of the principal tasks of which is to review police ethics and to establish within the policing profession a code of ethics that will guarantee that within the police force itself there is an acknowledgement of what is proper and what is acceptable in policing terms. I share my noble friend’s concern; it is the reason why we are taking things which happened in the past so seriously. We recognise that if we do not eliminate these issues from policing practice, there is a risk that we could see events similar to the ones that we have to talk about today.

[Baroness Howells of St Davids]

My Lords, I can tell the House that on the night that Stephen was murdered, I was the community relations officer detailed to keep an eye on what was happening. A week after the murder, I was invited to meet the Minister for race relations in the Home Office, the then Mr Peter Lloyd. I was asked if I could say something about what was happening in Greenwich. I explained to him that the Lawrence family were the epitome of any British family. They were married, they had three children who went to school regularly, and they played tennis. Five Englishmen set upon their eldest son and murdered him in the street. At the time the community, in its grief, was concerned about how the police were reacting to the death of an 18 year-old. On the night of the murder, I went to the hospital and had to drive along the road, but the police had not cordoned off the area where Stephen had been murdered. I have said this many times, but today I can say it publicly: we were all very concerned.

After I had explained in detail what was happening, we were told that Peter Lloyd was so moved that he appointed a Member of this House to visit Greenwich. The Member called into the police station and spent a day with the police, and he said in his report that the police were doing everything they could. He did not contact the local council, he did not contact the community relations council and he did not contact the community. He did none of those things. We were outraged because we knew that something was wrong.

I stayed by the Lawrences in their struggle for 10 years, at which point I felt that they were strong enough. I would like to ask whether the Member of this House who spent a day with the police will be questioned during this inquiry. He gave the police confidence that they were doing a good job. The community knew that they were not, the race relations people knew that they were not, and the council knew that they were not.

For the black community, the police perjuring themselves in the way they have done is well known. A lot of young people were disenfranchised because of how the police treated them. They would arrest them, but when they asked, “What have I done?”, they would be charged with obstructing the course of justice. There was a time when the Metropolitan Police made it impossible for a young black person to walk the streets of London. If the Government are taking this seriously, and I am sure that they are, this cannot be a “surface” inquiry. I feel that the House deserves to know how a Member of this place could give the police such a good report while the families were suffering. I thank all noble Lords for listening.

[Lord Taylor of Holbeach]

My Lords, it has been a privilege to listen to the noble Baroness, who has recreated some of the fears and anxieties which the Macpherson report sought to address. There have been few more damning indictments of an institution than that report. What is currently being alleged is that there may have been some aspects of policing at the time which were not reported to Macpherson, including this particular unit and its activities. These are matters of great concern. I have to be brief because other noble Lords want to come in, but I am pleased to have listened to the noble Baroness.

[Lord Dear]

My Lords, first, I declare my interest as a senior officer in the police service, and also that in the past 18 months I have given professional advice as part of a small group advising HMIC on the Kennedy case. That should go on the record.

I associate myself absolutely with the comments in the Statement that the noble Lord has read out to us. I share entirely the concern, and the tone of that Statement chimes exactly with my own feelings. I would also like to associate myself with the comments that have been made about the Lawrence family, and I will not go over that again. The whole issue is deeply worrying. I have only one small query in my own mind: why has it taken so long for that undercover officer to come forward? No doubt that will be a matter of record later on.

I will make one point and pose one question. The point I would like to make is that my knowledge of undercover operations at the extreme end is that it is a critical and highly dangerous part of policing. Penetrating officers into organised crime groups is difficult. It is critical—as the Front Bench has already acknowledged—and a very dangerous involvement indeed, which was not the case with Lawrence and is not the case with Kennedy either. I hope that the ongoing investigations will bear in mind the important end—the dangerous end—of undercover operations.

The noble Lord, Lord Fowler, has already mentioned the need for ethics and I subscribe to that. He is quite right, but I would take it a stage further. My question to the Minister concerns leadership. Ethics are no good unless the values of the service and the moral and professional compass of the service are there first. It needs leadership to hold it together and move it forward. This is a drum I have beaten here before, as the Minister knows. I would like reassurance from him that the whole question of leadership—not the College of Policing but leadership—is being addressed as a matter of urgency within the Home Office. It is to do with recruiting and training the right people, giving them the space to operate and encouraging leadership rather than management. With good leadership, this sort of thing should not and would not happen. That is the essence of the whole problem that we are looking at.

[Lord Taylor of Holbeach]

Many senior police officers are aware that there is far too much focus on management and not enough on leadership. It is, after all, the police force that we are talking about. Police forces need leadership and command and a sense of direction and focus. All that the noble Lord has said, from his vast experience, points to the disappearance of some of that focus in modern policing. The Home Office is determined to get it back. I hope that addresses the issues that concern him.

[Lord Dholakia]

My Lords, this is one of the most positive Statements to have emerged from the Home Office on this episode. Obviously, differences of opinion remain about the nature of the inquiry. I will make three points.

First, we endorse the sentiment expressed with regard to the tragedy and the further agony that the Lawrence family will experience on realising that the undercover operation was actually trying to implicate them—the nasty part of British policing. Two questions arise. The Macpherson inquiry talked about institutional racism. Would that inquiry have stopped talking about institutional racism if it had known that the police were involved in such an undercover operation? Would it not have recommended at that stage the need to criminally investigate police who were involved in this undercover operation? I raise this because there has been botched operation after botched operation in the investigation of this case.

My second point concerns the nature of the investigation, which the noble Baroness from the Opposition spoke about. I have full confidence in the IPCC and how it is supervised. However, public perception is still that the police and others tend to investigate themselves no matter how one supervises them. I do not believe in that. In this case, it is matter of innocent people against whom the police acted wrongfully. We need clear answers and that can come about only through an independent investigation.

The third point, if the Minister could reply, is that whereas one endorses what he says about covert operations where matters of national security are involved, this is an ordinary family who had lost a family member. What is the matter of national security in relation to this case? The sooner we get to the root of this problem with an independent inquiry, the better for British policing.

[Lord Taylor of Holbeach]

My noble friend is absolutely right. The Macpherson inquiry was only as good as the information that was made available to it. I said in my earlier response that if the Macpherson inquiry had had knowledge of the allegations that we are now aware of, there would have been a fuller investigation of this particular aspect, which may have changed the tone of that report even further.

I emphasise that the Ellison inquiry is an independent report. It stands outside the police force. However, we know that we need the police to investigate these sorts of matters. They are the vehicle in this country—they have the powers of arrest. They have the power and we need that power if we are going to pursue these allegations fully. Having Mark Ellison working alongside them, investigating the scope of these investigations at the same time, we have that degree of independence, which justifies the parallel passage of these inquiries and investigations.

[The Lord Bishop of Ripon and Leeds]

My Lords, I express from these Benches the way in which our hearts go out to Doreen and Neville Lawrence at this fresh pressure upon them at this time. In that context, accepting the point made by the Minister that undercover operations are necessary to protect the public, I emphasise that the distinction between undercover operations and dishonest deception is a fine one. Therefore, can he tell us more about the possibility and timescale for a clearer code of conduct for undercover operations? How much—if any—of that could be published?

[Lord Taylor of Holbeach]

In order to set up proper supervision of undercover operations, primary legislation will probably be required; certainly legislation of some sort will be required, as was indicated by my right honourable friend Damian Green last week. He talked about secondary legislation to raise the level of authorisation for long-term undercover deployments to that of chief constable and to introduce a system of independent approval by the Office of Surveillance Commissioners for all renewals of long-term undercover deployment at 12-month intervals, so that there will be supervision by an independent body, set up by Parliament, to ensure that these operations are properly supervised.

Of course, the right reverend Prelate is absolutely right that we cannot reveal details without blowing the operation. However, the principles under which these operations are conducted will be established by using the Office of Surveillance Commissioners to supervise them.

[Baroness Uddin]

My Lords, I echo the sentiment of the House and pledge our support to Doreen Lawrence, whom I have the privilege of knowing personally. It must be devastating to learn, just as she begins to build a relationship with the police, hoping that there will be proper and full justice for her son, that she faces yet another blow. If these despicable allegations are true, were the Home Secretary or the Metropolitan Police Commissioner at the time aware of them? If so, what assurance will the Minister give to the House that there will be zero tolerance for institutional racism, not only within the Metropolitan Police but all across our institutions in this country?

[Lord Taylor of Holbeach]

There is no tolerance of racial discrimination in this country. It is one of the features that have changed since those times. The Home Secretary became aware of these allegations only on Thursday last week. No Home Secretary that I know of has been aware of these allegations. We know that the noble Lord, Lord Condon, who is not in his place today but who was commissioner at the time, has widely condemned these allegations and had no knowledge of them, as he says in a statement which he issued earlier today.

[Lord Elystan-Morgan]

My Lords, I most warmly congratulate the Minister on the sincerity and sensitivity with which he has approached these grave allegations. The question has been raised as to exactly how boundaries should be drawn. I respectfully suggest that this House, sitting in its appellate capacity in the Loosely case 13 years ago, laid down very specific and intricate rules. If those can be made a living law—exactly how that is to be done I am not sure—the problem, to a large extent, would be answered.

On the Lawrence question, it is perfectly clear to the House that a small, select, covert and confidential cell was set up to do a very specific job—to besmirch the Lawrence case. That decision could not have been a haphazard one. It must have been arrived at at a fairly senior level of management. The British public will want to know who that person was. Anything short of that would leave a huge gap in credibility.

[Lord Elystan-Morgan]

Saying that gives me no pleasure, as someone who was Police Minister in the other place 45 years ago and thinks that we still have a most splendid police force, with few exceptions.

[Lord Taylor of Holbeach]

What the noble Lord says is quite clearly the nub of the issue. That is what the investigation of these allegations is designed to discover. It is not going to be easy. This was quite some time ago and many of those involved have passed on. It will not be easy to get to the truth. The paper trail and the documents may not exist—we do not know. However, I believe that the public demand this sort of scrutiny and transparency and it is right that they do so. We need to pursue the allegations with vigour because we need to show that this cannot be tolerated in retrospect and it certainly cannot be tolerated today.

Visas

Lord Taylor of Holbeach Excerpts

Monday 17th June 2013 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what is the average time taken to assess and process an overseas visitor’s application for a visa.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, in the financial year 2012-13, on average, visit visa applications were processed in under 10 working days—the exact figure is 9.17 working days. We measure this from the time that the customer submits their biometric information to when the application is ready for collection by the customer.

[Baroness Smith of Basildon]

My Lords, the president of the China International Travel Service has criticised the Government’s changes to the visa system as making little difference in encouraging Chinese tourists to the UK and complains that the system is even more complicated than that to get into the US. Does the Minister accept that the potential loss of income to the UK economy remains at £1.2 billion? What urgent discussions will Ministers have with the Chinese authorities and tour operators to make it easier to apply for UK visas without compromising security, as other countries seem to be much more successful at doing this?

[Lord Taylor of Holbeach]

My Lords, I read the article containing Miss Yu’s comments. It is vital that the UK is seen as being open for visitors and business. That is very much the case as far as China is concerned. The President of China has talked about there being 400 million visitors from China by 2018. We need to recognise the need for a customer focus in our visitor offer. That is why the Government have broken up the UK Border Agency into two parts, one of which deals with immigration enforcement. The other, UK Visas and Immigration, is dedicated to delivering a high-quality customer service to those wishing to enter the UK.

[Lord Naseby]

Is my noble friend aware that the new fast-track system introduced in Colombo for prospective visitors, particularly from the business sector, is working well and is greatly to be welcomed? On behalf of those who are using it, I say a huge thank you to the Home Office for listening and implementing this new system.

[Lord Taylor of Holbeach]

I thank my noble friend as brickbats are often flung on Questions such as this. I emphasise that the Government are actively looking at ways in which we can improve the focus of UK Visas and Immigration. I have met Sarah Rapson, the new director-general of the service. The whole point behind the creation of this new service is to make sure that our offer to visitors is competitive and customer-oriented.

[Baroness Symons of Vernham Dean]

My Lords, may I ask the Minister particularly about business users? I declare an interest as the chairman of the Arab British Chamber of Commerce. Is he aware that we are getting an increasing volume of complaints from the countries of the Arab League about the delays in getting visas? Would he be kind enough to meet those of us who have concerns on this issue to discuss why this is the case and what can be done to ameliorate the position?

[Lord Taylor of Holbeach]

I certainly would be prepared to meet the noble Baroness and any people she wishes to bring along. As I have emphasised, we want to expedite visa processing. Ninety-four per cent of visas are processed within 15 days. That is a pretty good figure. It can be improved but 94% are processed within 15 days and, in the case of China, the figure is 99%.

[Lord Dholakia]

My Lords, what arrangements are in hand to review the decisions of entry clearance officers? My noble friend will be aware that in the past immigration adjudicators overturned the decisions of entry clearance officers in many cases. How do we ensure that there is no bias in the way decisions are taken, particularly as regards family visits and visits to attend marriages and funerals, when people wish to be in the country for a very short period?

[Lord Taylor of Holbeach]

I am grateful to the noble Lord. He has a strong focus on this issue. Indeed, the noble Baroness, Lady Hamwee, is presenting a report, which we will be debating shortly, on the whole question of family visas. We need to make sure that we have a proper balance between safeguarding our own position and our commitments within the wider communities here in the United Kingdom and, at the same time, facilitating visits to this country.

[Lord Lea of Crondall]

My Lords, one of the concrete points made by the Chinese authorities in this article to which reference has been made is that a decreasing proportion of Chinese visitors to Europe—the European Union, broadly—are coming to this country, because they can get a Schengen visa for all of the continent, in effect, and the extra hassle of getting a visa for Britain deters people from adding Britain to the European tour, as it were. Will the Minister carry out a study as to whether our documentation could not be nearer in line with what is done for the Schengen countries without our sovereignty being impugned so that, as a result, a bigger proportion of the Chinese would be able to come to this country?

[Lord Taylor of Holbeach]

I think the noble Lord is very perceptive in anticipating future debates on this subject. This is clearly one of the difficulties that we have in not being party to the Schengen agreement. Given that the House, I am sure, would not welcome our incorporation into the Schengen agreement, we are seeking to discuss with others, including the Schengen countries, ways in which we can maximise the opportunities for visitors to come to this country.

[Lord Avebury]

My Lords, since the Secretary of State rightly disbanded the UKBA, what steps has she taken to address the dysfunctionality, not only in terms of immigration visas for visitors but throughout the whole system, to ensure that the immigration service universally provides an adequate service to people entering the United Kingdom?

[Lord Taylor of Holbeach]

My right honourable friend the Home Secretary is in Liverpool today addressing former UK Border Agency staff, and I have given a pretty clear indication that we want to make sure that, in future, this service reflects the needs of the customer.

Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013

Lord Taylor of Holbeach Excerpts

Monday 10th June 2013 Lords Chamber

Moved By

[Lord Taylor of Holbeach]

That the draft regulations and orders laid before the House on 25 April and 8 May be approved.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 4 June.

Motion agreed.

Global Migration and Mobility (EUC Report)

Lord Taylor of Holbeach Excerpts

Thursday 6th June 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, this has been an interesting afternoon—indeed, evening—spent in discussing a high-quality report. It forms another chapter in this House’s dialogue with the Government on migration policy, and if most of the paragraphs have been on international students, so be it. My honourable friend Mark Harper has been dealing with a debate on this subject in another place today. The Government are very aware of the points being made by noble Lords on the subject.

I will begin by congratulating the noble Lord, Lord Hannay, both on the report and on getting the debate today. As I said, it is a high-quality report, and I congratulate all those noble Lords who participated in its production. I thank all noble Lords for the strong contributions made in today’s debates. I have spoken to the noble Lord, Lord Hannay, about this, and I will, if I may, do as I did in the previous debate and give a commentary on the debate, taking points made by noble Lords and giving a proper answer. It is very difficult at the end of a debate like this to give proper consideration of all the points made. Of course, in cases where I do not have the information that noble Lords would want, I will make sure that an answer is sent to all noble Lords who participated, and a copy put in the Library. I hope that this will enable me to concentrate my words in the main on the report and on the reasons we welcome it.

There were some key insights in our debate. One important one came from the right reverend Prelate the Bishop of Derby, who showed us the consequences of this policy on local communities. It is one of those important aspects that we have to bear in mind when we discuss systems and processes: that at the end of the day, policy impacts on people and on communities. It was good to hear not only of the work that is being done in his diocese but of the way in which he is aware, and has made us aware, of the problems that can arise.

I was pleased that my noble friend Lady Hamwee was able to give us a promotional trailer for her forthcoming report. I look forward to having a debate on family unification policy. It will be very helpful. Our noble friend Lord Teverson pointed to the importance of the issue.

One of the most interesting speeches came, rather out of the blue, from my noble friend Lord Hodgson of Astley Abbotts. We have to accept that we have a consensus. We are all badged with different political beliefs and party allegiances, but I felt that my noble friend’s speech was sobering. The noble Lord, Lord Judd, referred to it as a challenging speech. It made us realise that there is no room for complacency in this area, that our policies have to be addressed to the real anxieties of our fellow citizens, and that we have to draft policy with that in mind.

I turn to the report. The EU’s renewed Global Approach to Migration and Mobility, which was the principal focus of the inquiry, was published in 2011. It provided a welcome renewal of the EU’s external migration policy framework, which was established in 2005 under the UK presidency. As my noble friend Lord Sharkey made clear, the Government welcomed many of the proposals set out in the Commission’s communication on the GAMM, including the incorporation of international protection, alongside existing priorities, in order to broaden the geographical coverage of the global approach. The intention is to ensure a more strategic and coherent approach, to work with third-party countries in the area of migration, and to enhance links to wider development and foreign policy efforts. Alongside other member states, we agreed the Council’s conclusions on the renewed global approach in May 2012.

Unlike the EU’s more general approach to migration policy, which perhaps has placed too much emphasis on legislation and on a common approach—some noble Lords supported that approach today, but it is not the Government’s position—the GAMM is centred on a framework for practical co-operation between the EU’s member states and third countries. The Government particularly welcome this focus on practical co-operation; the pragmatic approach is perhaps part of our political tradition. Alongside the GAMM’s non-binding and voluntary character is an approach that allows member states to decide how they can best contribute to joint initiatives in this area, in their own national interests and in those of the EU as a whole.

Following the Council’s agreement, this flexible, practically-oriented approach has allowed the UK to explore possibilities for working with our EU and third-country partners under the renewed GAMM, assessing whether and how we will participate in line with the UK’s broader immigration policy. The national interest is at the heart of this decision-making process and, alongside our migration objectives, the Home Office works closely with other government departments, in particular the Foreign and Commonwealth Office and DfID, to ensure that wider home affairs, security, foreign policy and development implications are given due weight in deciding when and where to participate in GAMM initiatives. I think that the noble Lord, Lord Hannay, emphasised that the responsibility for these initiatives is not just for the Home Office but is pan-government. Indeed, noble Lords have pointed to the implications of immigration policy for a number of other aspects of government policy.

Given the range of factors involved and the specific considerations with regard to any given country or region, we make these decisions on a case-by-case basis, albeit that our decisions are informed by a set of overarching principles and principally by the Government’s objectives with regard to controlling migration. Following such considerations, we have announced our intention to take part in a number of new initiatives under the GAMM. For example, the Home Secretary will tomorrow join her counterparts from a number of EU member states in signing a new EU mobility partnership with Morocco. The flexibility afforded by the GAMM has allowed us to offer to work with Morocco in the area of border management, where we feel we have useful experience to share, rather than needing to participate across the whole of the proposed partnership. This includes areas such as legal migration or the portability of social security benefits, where other EU partners are better placed to lead, or where proposed initiatives would not be in line with our national policy.

Indeed, the UK has remained a leading voice in the development and implementation of the renewed global approach. We have played a leading role in the development of the new Silk Routes Partnership, identified in the Council conclusions on the GAMM as a key strategic requirement in the EU’s work with key countries of transit and origin. At April’s ministerial conference in Istanbul, which launched the Silk Routes Partnership, my colleague the Minister of State for Immigration, Mark Harper, announced the UK’s financing of a bridging project for the new partnership, ensuring that momentum will be maintained on concrete, practically-oriented initiatives in the silk routes countries ahead of the commencement of EU funding for these projects in 2014.

However, it will not always be in the UK’s interests or, given limited resources, within our abilities, to participate in GAMM initiatives. Therefore, while we continue to maintain good working relationships with other member states and the EU institutions in this area, and while we welcome the increased capacity and added leverage provided by working alongside our EU partners, the Government will always consider whether it might be more appropriate, or more effective, to work bilaterally with third countries. For example, the Government’s policy is not to opt in automatically to EU readmission agreements, which are increasingly linked to mobility partnerships and other negotiations under the GAMM. Rather, we will weigh up the benefits of participation in each agreement, including an assessment of the impact of such decisions on wider bilateral relationships, exercising our opt-in where we believe participation will benefit the UK, or where the UK’s participation will strengthen the readmission agreement overall. I assure the noble Lord, Lord Hannay, that these decisions are carefully considered. This is consistent with the UK’s case-by-case approach to the application of our JHA opt-in. We believe that this is right. The noble Lord, Lord Sharkey, mentioned this issue, as did the noble Lord, Lord Teverson.

We believe that it is right to consider our relationship on a case-by-case basis. We make very few enforced returns to either Belarus or Armenia and we are happy with our existing bilateral arrangements with those two countries. That is why we are not participating collectively in that agreement.

We will have an opportunity to talk about family reunification, and my noble friend Lady Hamwee has clearly worked hard at producing her report, which will be a subject for debate. The UK did not opt into the directive because we wanted the ability to set our own family migration policy. The UK is concerned about the potential for abuse of the right to family reunification, in particular by third-country nationals. In view of that, we maintain the view that it is not in the UK’s interest to be part of the directive.

I can assure my noble friend Lord Phillips of Sudbury, who talked about the need to make sense of regulations in this area and make the procedures as straightforward as possible, that I am the Minister for Deregulation within the Home Office and I have an extremely good and productive relationship with Mark Harper, the Minister for Immigration. We are working as one to make sure that the immigration Bill, which will be presented later in this Session of Parliament, contains measures that will make this area much more straightforward.

The noble Lord, Lord Kakkar, rightly reminded us of another subject, the contribution of migrant medical professions to the healthcare of this country. He was right to mention the debt that we owe to migrants in this country, to which a number of noble Lords alluded. That is why we do not have closed borders. We have not turned our back on the talent of the world, nor do we want to cut ourselves off from the ability to share our talent through soft diplomacy throughout the world.

Perhaps the whole debate has been dominated by international students. Scarcely a noble Lord has failed to mention them in some way or another. That board at Gatwick stating, “Welcome international students”, summed up the Government’s policy. The noble Baroness, Lady Prashar, is shaking her head. Noble Lords have asked for reassurance on what the government policy is. I am giving that policy. There is no limit on numbers. We want to work in partnership with the universities of this country to build our student population.

The whole issue of where the statistics lie is, to my mind, a red herring. The task is not about the compilation of statistics or even their interpretation. What matters is the partnership between the Government and the universities themselves, and going out there in an increasingly competitive world to get the students from which this country can prosper here to our universities. The noble Lord, Lord Bew, was honest on this point. He turned the argument towards the universities to make them aware of the need to take a positive role in this. It is not enough to wait for students to arrive. If I may say so, I sometimes wonder how much the negative talk on this issue by universities has become self-fulfilling. I wonder about the extent to which the campaign to get these statistics removed, the use of the association of student numbers as part of the immigration policy of this country, and the suggestion that the Government are seeking to reduce those numbers and that that is part of our migration policy are all false. I think that in many cases those things have added to the impression that this Government do not take a positive view of university students.

I know that Mark Harper’s commitment is genuine, and it was repeated today in the House of Commons. I share his enthusiasm for advocating international students as being of enormous importance to our universities. Yesterday, I went to a celebration in the Speaker’s residence, where it was announced that 11 new universities have been recognised by this Government. We have a valuable—if I may say so, it is incapable of being valued sufficiently—resource in our universities, and I think that we make a mistake in arguing that the way we are presenting our statistics is the reason that people are not coming to this country.

Noble Lords will know that we have a commitment to present our statistics in a consistent fashion. David Willetts has made it quite clear that student numbers are disaggregated from the net migration figures. The figures are available. We are all aware of the student numbers—we can all calculate the figures for ourselves. However, in terms of public presentation—and, if I may say so, in terms of resource allocation within this country—we need to recognise that students, as migrant numbers, in communities need resources. They need adequate provision in public services and in financial resourcing.

The possibility of the presentation of these numbers being changed has been discussed in government but I cannot offer any comfort on that. I think that we need to change the tone of the argument to one which makes it clear that this Government have no limit on numbers and that they welcome international students, and they want the universities of this country to make that absolutely clear throughout the world.

[Baroness Warwick of Undercliffe]

Perhaps I may interrupt briefly not on a question of statistics but on another point raised by several noble Lords concerning the Brazilian high-achieving language students who were told that they would have to leave this country in order to get another visa to study in the UK. Will the Minister comment on that?

[Lord Taylor of Holbeach]

When that point was being made, my noble friend Lord Wallace of Saltaire was sitting next to me and he said, “My son is studying in the States and he has just had to come back to the UK to renew his visa to go back to the States for a second course there”. If I may say so, that is not unusual. However, I have a note here on the Brazilian students. I am very conscious of the hour but am very happy to reply in detail. The noble Baroness has been sitting in her place and I have been very conscious of her position, but it is perhaps a pity that she was not able to participate in the debate. I am pleased that she has come in at this late hour and I will include her in the circulation of the commentary that I make on this debate.

In conclusion, this has been a worthwhile debate but it is no use for me, as a Minister, to say things to noble Lords about how the Government are going to present immigration statistics which I cannot then follow up. I can say that international student numbers will indeed be disaggregated in the presentation of those figures. More importantly, let us turn what we know we all want to do into positive action—selling our universities around the world. I thank the noble Lord, Lord Hannay, for bringing this debate to us.

Crime: Child Abuse

Lord Taylor of Holbeach Excerpts

Tuesday 4th June 2013 Lords Chamber

[Baroness Smith of Basildon]

To ask Her Majesty’s Government what information they have on the number of individuals who have downloaded child abuse images, and on the number of those individuals who have been charged.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the Government take the issue of tackling illegal content very seriously. In 2012, 255 individuals were found guilty of the principal offence of possessing prohibited images of children or of possessing indecent photographs. In the same year, 1,315 individuals were found guilty of the principal offence of taking, permitting to be taken, making, distributing or publishing indecent photographs of children. It is, unfortunately, clear that there are links between these sick activities and the attacks on young children which have featured in the news recently.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. The latest estimates show that up to 60,000 people are involved in downloading child pornography. Even though we can obtain their names and addresses, as the noble Lord said, there are fewer than 2,500 convictions each year. The figures show that one in six of those involved in child pornography will commit a sexual offence on a child. We would like to work with the Government to ensure swift and co-ordinated action on this issue. What progress has been made in the technology industry to make a step change in how we tackle this? Do the Government accept that they must be prepared to act if no changes are forthcoming?

[Lord Taylor of Holbeach]

These are important issues, and I am very grateful to the noble Baroness for the way in which she supports moves to strengthen the Government’s position in this regard. The work of the Internet Watch Foundation to encourage search engines and internet service providers to put in place warning messages known as splash pages that tell users that they are about to access a website containing illegal child abuse images is a very important development. However, our preference is for such websites to be taken down or, where that is not possible, blocked from being accessed. Work with the internet service providers is key to getting this problem solved.

[Baroness Howe of Idlicote]

My Lords, the quite appalling April Jones case has raised wider questions about access to pornographic material on the internet, with its very obvious dangers for children. What progress do the Government think has been made after publication of the response to the report on the outcomes of parental control consultation? Is there not increasing evidence of the need for an adult age verification opt-in requirement, as proposed in my Online Safety Bill, if adult viewers wish to watch pornography?

[Lord Taylor of Holbeach]

I thank the noble Baroness for bringing her Bill to the House during the previous Session. I understand, and hope, that she will bring her Bill here again so that we can discuss these matters. The respondents to the Department for Education’s consultation said clearly that parents feel that it is their responsibility, with the help of the industry, to keep their children safe online. It was also clear that, in accepting that responsibility, parents want to be in control, and that it would be easier for them to use the online safety tools available to them if they could learn more about those tools. We are focusing our discussions with the industry on those lines.

[Baroness Benjamin]

My Lords, the Child Exploitation and Online Protection Centre has warned that the growing availability of access to the internet is likely to see an increased threat to children’s safety. Recently there has been a 14% increase in the reported sexual abuse of children. Will my noble friend tell the House what financial support the Government are giving to CEOP and other agencies to deal with this increase?

--- Later in debate ---

[Lord Taylor of Holbeach]

As my noble friend will know, CEOP is not just funded by the Government but has partners of its own. It is a very valuable vehicle for tackling this problem. There has been a projected 10% reduction in its budget, but that is against a context of a 20% reduction overall. The number of people working in CEOP, now 130, is 50% more than just five years ago.

[The Lord Bishop of Chester]

My Lords, can the Minister confirm to the House the implication of the question of the noble Baroness that the problem is increasing and comment on the adequacy of the normal police response which is to offer a caution to those who admit the offence?

[Lord Taylor of Holbeach]

The police do not necessarily offer a caution and it is our desire to see people who use these websites prosecuted. The most important aspect is to get these websites taken down so that they are not seen. The great advantage of the Internet Watch Foundation is that it engages the whole public in this mission. It has meant that 56% of images are removed within an hour of their appearing on the web. This is the only way that the whole community can join the battle against this evil.

[Lord West of Spithead]

My Lords, the Minister will be aware that we will shortly lose the ability to identify the IPs of these loathsome people and bring them to justice. Does the Minister agree that it is therefore crucial that we move forward with the communications data Bill?

[Lord Taylor of Holbeach]

I agree with the noble Lord that this is a very important item of government legislation and I welcome his support for that. As the noble Lord will know, a draft Bill was brought before the House and it is hoped that we will be able to build on that draft Bill for the future to make sure that we can identify these people.

Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013

Lord Taylor of Holbeach Excerpts

Tuesday 4th June 2013 Grand Committee

Moved by

[Lord Taylor of Holbeach]

That the Grand Committee do report to the House that it has considered the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, these regulations will apply transitional labour market restrictions to nationals of Croatia when that country joins the European Union on 1 July. The Government have been clear that they will apply the toughest possible transitional restrictions to any country joining the European Union in the future. We are implementing transitional restrictions because it is sensible to do so.

Free movement rights are a fundamental aspect of membership of the European Union and the internal market. However, the accession treaty makes provision for member states to apply transitional controls on labour market access for up to seven years to ensure an orderly transition to the enjoyment of full free movement rights. The restrictions that these regulations apply are similar to those which the UK already applies to nationals of Bulgaria and Romania.

The Government have not made an estimate of the number of Croatians who may migrate to the United Kingdom. Given the variables, including the economic situation and the decisions of other member states, a reliable forecast is not possible. Croatia is a small country and not traditionally a source of migrants to the United Kingdom. There is little reason to expect a large influx after 1 July. However, in the light of previous experience, it would be rash not to take the precaution of applying restrictions, particularly if other member states do so. Germany and the Netherlands have confirmed that they will apply restrictions to Croatian nationals after 1 July.

The transitional restrictions that these regulations put in place are as restrictive as the terms of Croatia’s accession to the EU permit them to be. Under the accession treaty, we cannot apply restrictions that are more restrictive than those which applied to Croatian nationals under the Immigration Rules in force when the treaty was signed in December 2011.

The effect of the regulations is that Croatian nationals will generally have a right to reside in the UK as workers only if they have obtained permission to work from the Home Office in the form of an accession worker registration certificate. They will have no right to reside by virtue of being a jobseeker. In line with our obligations, there are some exceptions to the requirement to obtain permission to work—for example, those who have worked legally and continuously in the United Kingdom for 12 months, and certain family members, will have free access to the labour market. The regulations also provide for the most highly skilled to be granted free access to the labour market from the outset.

Where permission is required, a Croatian national will need to obtain this before they commence employment. In order to obtain an accession worker registration certificate, a Croatian national will, as now, normally need to be sponsored by an employer who has been licensed by the Home Office under the points-based system arrangements. Points-based system criteria will apply, which means that Croatian nationals will normally obtain permission to work under tier 2 of the points-based system only when they are offered a job that is skilled to National Qualifications Framework level 4, meets minimum salary criteria and for which resident labour is not available.

These controls will not prevent Croatian workers obtaining permission to work where they have skills that are in short supply and will benefit the UK economy. However, they will reduce the risk of uncontrolled flows of workers coming to undertake low-skilled work or to take work for which British workers are available. The regulations do not place an upper limit on numbers but the requirement that a Croatian national must have an offer of employment that meets strict criteria will restrict numbers. To put this in context, only 90 Croatian nationals were admitted to the United Kingdom in 2012 for the purpose of work under the points-based system criteria.

It is necessary that these transitional measures are backed up by proportionate enforcement powers. As with the measures applied to prevent the illegal employment of non-EU nationals, the regulations will make it an offence to employ a Croatian national where the worker requires permission to work but does not have it and will provide the Secretary of State with the option of imposing a civil penalty as an alternative to prosecution. They will also make it an offence for a Croatian national to take employment in breach of the regulations. In such cases, liability to prosecution will be discharged by payment of a penalty.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for that explanation, which answered a few of my questions, which I know he is always pleased to do. I wish to clarify a couple of points by asking a few questions. The Minister mentioned a seven-year transition period, yet the order refers to a five-year transition period and 2018. I assume he referred to seven years because there is a possibility of extending the transition period for a further two years at another date, but this order is for only five years. In case I have misunderstood, will the Minister clarify that?

I am interested in the enforcement regime regarding those who come from another country and try to work. Is it the same as the regime for other employment visa requirements or will there be something different in place for transitional arrangements? Can the Minister say anything about how this will be monitored? I would be interested to know the details, and if he wants to write to me I would be happy for him to do so.

Obviously, we support transitional arrangements. As the Minister acknowledged in his comments, we brought them in for Bulgaria and Romania. I fully understand why it is not possible to get an accurate assessment of the numbers involved, but the Minister said that this order is being brought forward today because of the fear of uncontrolled flows of workers from Croatia to the UK. He also said that there is no anticipation of large numbers coming to the UK. That seems somewhat contradictory. Has there been any assessment of the numbers involved, or was the assessment that it was not a large number and the order is just to minimise the risk in case that is wrong? It is not quite clear as the Minister’s comments were contradictory. If there has been some assessment, I am interested in the flows in the other direction. How many people from the UK want to go to work in Croatia?

On the more general points, from what has been said today and from comments made by other Ministers in the past, is the Minister able to clarify the Government’s longer-term position on free movement within the EU and say whether there are any plans to change the rules on it? I noted the Minister’s comments about unskilled workers from Croatia or, indeed, any other country when local workers are available. On that point, which is slightly tangential but very relevant to this discussion, how can we ensure that unscrupulous employers do not illegally employ those who are not entitled to work in this country and exploit them by doing so? I am thinking of things such as ensuring that the minimum wage is paid and that health and safety regulations are taken note of because cutting back on those issues is one way that unscrupulous employers exploit foreign workers and therefore undercut and undermine the local workers to whom the Minister referred. Will the Minister give us an assurance that the Government will not weaken those protections, and that when they are not upheld they will take action?

I know that the Government have been very slow in enforcement. There has been a lax approach to the minimum wage legislation. I was very pleased to hear this weekend that HMRC has recently brought a swathe of prosecutions on this, because it had fallen by the wayside. I am pleased that it is picking up now. An assurance from the Minister on those particular issues would be very welcome. I appreciate that that is slightly tangential but it is an important issue. This is the point he is making; we must ensure that people who are not legally allowed to work in this country do not do so.

We are broadly content with the order before us today, but if the Minister is able to address the questions I have raised it would be helpful.

[Lord Taylor of Holbeach]

My Lords, I thank the noble Baroness for her contributions. As usual, she sets me a high standard if I am to avoid writing in detail, although I certainly would not hesitate to do so if I felt I was not able to answer satisfactorily.

I should like to reiterate that these regulations implement the commitment contained in the Government’s programme for government to apply the toughest possible transitional restrictions to any future member state in the EU. That is why we are presenting them. We do not expect levels of migration from Croatia to be significant, however. I made that clear in introducing these regulations.

It was interesting that the Baroness said that she was concerned that we had not given an actual estimate of these figures. We know there could have been considerable numbers from other countries if we had not set these restrictions in place in the past, so we feel that the policy that we arrived at in the coalition agreement was the right one.

I will first explain the business of the five years. I did so in introducing the speech when I explained that these regulations go up to June 2018 but provide for a further extension of two years; they can go up to 2020. They put in place the mechanism whereby the Government can indeed have a seven-year transitional regime.

The noble Baroness asks, “Why apply transitional regimes?” and, “Is it contradictory?”. I hope the noble Baroness supports that.

[Baroness Smith of Basildon]

I thought I made it clear that I did support transitional regimes. I never asked, “Why transitional arrangements?”. My query is about the Minister’s contradictory comments. I recognise that it is difficult to make an accurate assessment of the numbers involved, but the Minister used the term “uncontrolled flows” when he was talking about the need for this and then said he did not expect large numbers. That was the point I was making. The two comments seemed contradictory. I was trying to square the circle on that. I hope I was clear that we support transitional arrangements—indeed, we brought them in previously for Romania and Bulgaria. So that was not the point I was making. I want to be clear on that.

[Lord Taylor of Holbeach]

I am grateful for that explanation. As a result, I now understand the position of the noble Baroness. Thank you.

She asked me about the details of how these figures would be monitored. Obviously, where transitional permits are actually applied for, we know how many people are coming from Croatia to this country. As to how they will be enforced, the noble Baroness will know that we now have within the Home Office an immigration enforcement unit that ensures that illegal workers—and, indeed, illegal employers—can be prosecuted. These matters can be dealt with much more forcefully than before.

I am pleased that the noble Baroness noted HMRC’s assault on minimum wages. There has been a lot of cross-departmental working on these issues as the Department for Work and Pensions has an interest in them as well as the Home Office and HMRC. The rather amusingly entitled Operation Pheasant was designed to seek out exactly this problem in the part of the world in which I live, and successfully identified weaknesses that we do not want to see. After all, an exploiting employer is also an unfair employer who presents unfair competition to those who respect the law. The enforcement of the law is an important aspect of making sure that business in this country is conducted on a level playing field.

The noble Baroness also asked whether we would seek to reopen the free movement directive and what our approach to that was. We are examining the scope and consequence of the free movement of people across the EU as part of the general balance of competences review. We monitor enforcement issues and publish the outcomes on the Home Office website. All details of instances where employers have been discovered to be illegally employing individuals are published on that website. I hope that that satisfies the noble Baroness and that she will approve the regulations.

Motion agreed.

Extradition Act 2003 (Amendment to Designations) Order 2013

Lord Taylor of Holbeach Excerpts

Tuesday 4th June 2013 Grand Committee

Moved by

[Lord Taylor of Holbeach]

That the Grand Committee do report to the House that it has considered the Extradition Act 2003 (Amendment to Designations) Order 2013.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, we are concerned here with further secondary legislation required to amend the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003.

The background to this order is that it is necessary given the accession of the Republic of Korea to the European Convention on Extradition and the accession of Croatia to the European Union on 1 July 2013, from which time it will operate the European arrest warrant procedure. In addition, this order amends the time allowed for India to provide the necessary documentation following a person’s provisional arrest to reflect the terms of the bilateral extradition treaty in place between the UK and India. Therefore, three separate countries are the focus of this order.

To take these matters in sequence: first, the Republic of Korea is now a party to the European Convention on Extradition. This requires that extradition requests from the Republic of Korea be dealt with under Part 2 of the Extradition Act 2003, which in turn requires that the Republic of Korea be designated for the purposes of that part. That is what this order does. In addition, in line with the provisions of the ECE, this order ensures that when the Republic of Korea sends an extradition request to the UK, the request need be accompanied only with information—not evidence—which would justify the issue of an arrest warrant in a comparable domestic case.

The second country involved is Croatia, which, as we have already debated, will on 1 July accede to the European Union. We have considered the particular aspects relating to transitional arrangements. From 1 July, EU extraditions to and from Croatia will cease to take place under the ECE and will instead fall under the European arrest warrant procedure, the EAW. It is therefore necessary to redesignate Croatia as a Part 1 territory to ensure that we comply with our obligations under the framework decision on the EAW.

The third amendment relates to our extradition relations with India. The Extradition Act 2003 provides for a procedure known as a provisional arrest, whereby in urgent cases a state can ask for a person to be arrested in advance of sending the full papers making up the extradition request. Section 74 of the Act states that following a person’s provisional arrest, the extradition request must be received by the judge within 45 days, unless a longer period is designated by order. This allows the Secretary of State to provide for a longer period, where necessary, to reflect the terms of a bilateral treaty.

The UK concluded a bilateral extradition treaty with India in 1992, which has been in operation since 1993. Article 12 of the treaty specifies that following a provisional arrest the request should be received within 60 days. The UK considered that extradition with India was governed by the London Scheme for Extradition within the Commonwealth. Accordingly, India was not included in the list of territories in Article 4(2) of SI 2003/3334. However, we subsequently learnt that the Indian authorities regard the bilateral treaty as the vehicle for extradition between our two countries. This order ensures that this is reflected in our legislation by setting out that in the case of India the judge must receive the papers within 65 days of the person’s provisional arrest. This allows for India to provide the request to the Secretary of State within 60 days, as the treaty provides for, and for the Secretary of State to have five days to certify the request and send it to the appropriate judge.

I hope that noble Lords will understand the background to this collection of separate provisions within a single statutory instrument. The various amendments to the order are necessary to ensure that the United Kingdom can comply with its particular obligations under the relevant international extradition arrangements. I hope that, given my explanation, the Grand Committee will consider the order favourably.

[Baroness Smith of Basildon]

My Lords, again I am grateful to the Minister for his explanation, which was helpful. I wish to raise only two points, one of which is a probing question. I listened carefully to what he said on India. I do not think that I am dumb, but I struggled to follow some of the reasons for the provisions. Perhaps it will be easier when I read Hansard.

The justification given in the Explanatory Notes is the one the Minister just gave, which is that the time limit regarding the extradition arrangements with India requires that country,

“to provide these documents to the Secretary of State within 60 days, and then provides a further five days in order to enable the Secretary of State to provide these documents to the appropriate judge”.

My understanding is that the Government are equalising the time allowed for the extradition procedure in the UK with that in India, but I am not clear why it is necessary. The Minister said that the Indian Government understood that to be the position. Are we changing it because there was a misunderstanding in 2003 when it came through? I would have thought that we would want to move to extradition as quickly as possible, and I am not clear whether this is extending or reducing the time made available, because nowhere in the order or the Explanatory Notes could I find what the time was before it was 60 days. Obviously it has been changed to 60 days from something, but I do not know from what. If it is in the Explanatory Notes, I apologise, but I could not find it when I was looking through them. It would be helpful to have that information on why it is coming through now. Has the current timescale, whatever it is, been in place since 2003 or did it exist before that?

I was very pleased to hear the Minister give such a positive explanation for and account of the European arrest warrant, which is something he and I have discussed before. I know the Government are reconsidering this issue, which has caused enormous concern to others in Europe as we extradite through the European arrest warrant and apply for extradition through the European arrest warrant. Can the Minister tell me how many times the UK has used the European arrest warrant for extradition to and from the UK? As the Government are bringing this order forward today, they clearly regard the order and the extension of the European arrest warrant to Croatia as helpful and desirable. Croatia will be subject to the European arrest warrant but, on the other hand, the Government are now considering withdrawing from all the police and justice measures, which include the European arrest warrant.

I welcome the comments the Minister has made today, and I am sure we will come back to those issues. However, it would be helpful if he can give me some background on the numbers—I am happy for him to write to me on that as I would not expect him to have that figure to hand—and also on the position of India and what the number has changed from to 60.

[Lord Taylor of Holbeach]

I am grateful to the noble Baroness for her willingness to support this statutory instrument. If the noble Baroness reads Hansard, she will see that I covered this point but I will repeat it. Section 74 of the 2003 Act, under which we were operating but the Indians were not, states that extradition requests must be received by the judge within 45 days. That is why we have had to change the timings to the original arrangement we had with India under our bilateral treaty.

[Baroness Smith of Basildon]

If the misunderstanding is between 45 and 60 days, why has it been changed to 60 rather than remained at 45? It would seem more advantageous to the Government if extradition proceedings took place as quickly as possible.

[Lord Taylor of Holbeach]

It is because the bilateral treaty overrides the Commonwealth agreement of 2003. That is the sole reason. The Indian Government have asserted that the Commonwealth treaty does not apply to India as we already had a bilateral treaty in place, which was not overridden. We are not disagreeing with them because it is, after all, a matter of mutual consent, and we wish to see it as such.

In answer to the question about numbers, the Home Secretary said that she would write to Parliament when the figures are available. I will chase this matter with the Home Secretary so that the figures are made available as soon as possible. I hope I have answered the questions. I think that if the noble Baroness reads Hansard, she will see the background of the Indian case.

Motion agreed.

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013

Lord Taylor of Holbeach Excerpts

Tuesday 4th June 2013 Grand Committee

Moved by

[Lord Taylor of Holbeach]

That the Grand Committee do report to the House that it has considered the Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the order before us today will apply certain provisions of the Police and Criminal Evidence Act 1984, commonly known as PACE, to criminal investigations conducted by immigration officers. The direct application of these powers to immigration officers for the first time reflects the increasing incidence of immigration officers taking on criminal investigations. It does not affect existing administrative powers of detention, which will continue to be used for the vast majority of immigration operations under the Immigration Act 1971, so criminal investigations are the focus.

The order will also apply to designated customs officials and to persons detained by designated customs officials. This includes powers of arrest, search of premises and seizure of evidence as well as obligations in respect of persons detained on suspicion of having committed customs offences. It will also repeal part of Section 22 of the Borders, Citizenship and Immigration Act 2009, which provided for the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 to apply to designated customs officials undertaking criminal investigations in England and Wales. This was the legislative vehicle that afforded PACE powers to customs officials who transferred from HMRC to the Home Office in 2009.

At that time, the commitment made to Parliament was that this was to be a temporary measure pending the coming into force of one order that applied to both immigration officers and customs officials within the Home Office. This is the order before noble Lords today which will fulfil that undertaking made to Parliament. The reason that, to date, these powers have applied only to customs officials undertaking criminal investigations and detention derives from the time when customs work was an integral part of HMRC. The increasing incidence of immigration officers taking on criminal investigations as part of the focus on tackling immigration crime has made it necessary to extend some of the criminal investigation powers that currently apply to police and designated customs officials to immigration officers. These criminal investigation powers will be used only where the criminal prosecution of an individual is realistic. It is normally in the public interest to use administrative immigration powers to remove an illegal entrant. Removal from the UK will take precedence over a criminal prosecution.

The application of PACE provisions to immigration officers will deliver both operational and resource benefits. At present, police and immigration officers on immigration enforcement teams often work in tandem and deploy jointly on operations where they are forced to use different sets of powers, derived from PACE for the police or the Immigration Acts for immigration officers. This dual approach causes confusion and accountability problems as well as having a negative impact on operations by, for example, requiring separate briefing for different officers.

Noble Lords will be aware of the Home Secretary’s recent announcement of the creation of a separate immigration enforcement arm of the Home Office whose remit is to tackle any abuse of our immigration laws and to encourage compliance. It is individuals within this new entity who investigate immigration crime alongside their colleagues in Border Force, who deal with customs crime, who will benefit from this order. For the first time, it will place all appropriately trained criminal investigators on the same legislative footing regardless of their background and remove any confusion about the legal basis of their actions. In addition to simplifying the operational landscape, the application of PACE to immigration investigators will deliver direct benefits in the form of added powers to tackle crime. Specifically, these will be the ability to seize evidence under Section 19 of PACE and the ability to apply for search warrants in respect of special procedure material under Schedule 1. Powers of search under Sections 18 and 32 are also much simpler in application than their equivalents in Part 3 of the Immigration Act 1971, which is currently the only legal basis on which search powers are available to immigration enforcement investigators.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, again, I am grateful to the Minister for his explanation. As I understand it, the order before us extends the powers of arrest, search and seizure to immigration officers and customs officials. The Minister will be aware that, in the interests of effective policing, we have called for these measures to be introduced. Clearly, given the kind of investigative work, particularly on issues such as human trafficking and facilitating illegal immigration, it is appropriate, as the order states, that officers should act within a PACE-compliant framework. That will now include customs and immigration officers. We support that.

The Minister would be disappointed if I did not ask him a couple of questions. Paragraph 7.4 of the Explanatory Memorandum refers to mixed investigative teams with the National Crime Agency, which makes sense if they are looking into serious organised crime relating to immigration issues or human trafficking. Does that mean, for example, that all customs or immigration officers acting in a joint team on an NCA investigation would have the same powers as the police officers in that team and that they would retain those powers? If it does not, can the Minister say anything about the differences? I assume that additional training would be required for the officers to ensure that they know the additional powers that they have and how they can properly use them.

On the joint teams, the NCA—as the Minister will know—will not apply fully to Northern Ireland because of a difficult situation which has arisen, which the Government could have done more to resolve early on, if I am honest. I am curious whether these powers and this order will also apply to customs and immigration officers in Northern Ireland, given that the NCA will not operate in that way in Northern Ireland. If the Minister could given me an answer on that, it would be very helpful. I notice our Northern Ireland spokespeople are here today and would be grateful if the point could be clarified. I see puzzled faces behind the Minister and, if it is not clarified today, I am happy for somebody to write to me about it.

It is also my understanding that, while police officers are members of the Police Federation, the new officers who will be subject to and have these powers—those employed by the border agency, for example, or Border Force—are members of a different trade union. Over the years, they will have had different rights at work and different terms and conditions of employment. The order makes no mention of any changes to those at all, so I have assumed that no changes are planned to their terms and conditions of employment or their rights at work and that no changes are expected. I would be grateful if the Minister could confirm that for me.

[Lord Taylor of Holbeach]

I thank the noble Baroness for her comments. The people working together on mixed teams will have those PACE powers only in relation to their particular function within that team. They will all derive their PACE powers from PACE, so there will be a common source, but it is not correct to assume that, for example, a police constable or an immigration officer will be exercising a customs officer’s powers.

As for Northern Ireland, officers of the National Crime Agency are not included in this particular order because the National Crime Agency has not been set up. The noble Baroness will know that the difficulty in Northern Ireland was occasioned not so much by the customs and immigration issues but by the general powers that exist. The noble Baroness will understand that there is only a partial transfer of responsibility and that National Crime Agency functions will still be exercised in Northern Ireland through powers secured through SOCA. I cannot give her an absolute answer on the extension of this particular attribute in Northern Ireland, but if I can write to the noble Baroness, that will enable me to put this particular change, which is largely designed for England and Wales, into context rather than complicating the matter by trying to answer the question on Northern Ireland.

Designated customs officials are already trained to exercise PACE powers and those immigration officers who carry out criminal investigations will receive equivalent training, relevant to the set of PACE powers to which they have access. The noble Baroness will be aware that the changes that have occurred within UKBA have been made without affecting any terms and conditions of employment of any of the individuals involved.

[Lord Empey]

Will the Minister be kind enough to copy his letter to the noble Baroness to those of us who are in the Committee?

[Lord Taylor of Holbeach]

I am pleased to see the noble Lord, Lord Empey, in his place. I would be very happy to make sure that he is involved, as I recognise his interest in the particular relationship of Northern Ireland to these changes within the statutory instrument.

[Baroness Smith of Basildon]

I would be grateful if the Minister clarified one further point and perhaps agreed to write to me. He said something that I tried to jot down quickly—I am not sure that I got it right—about police officers having the powers of immigration officers and customs officers. I thought that it was the other way round regarding immigration officers and customs officers. Would they have those powers only when they are involved in a joint investigation with the NCA or will they have those powers independently when investigating such cases?

[Lord Taylor of Holbeach]

I am sorry if I have confused the noble Baroness. I had it clear in my mind if it was not clear in my exposition. Each of these specialist elements—police, customs and immigration—are enforcement agencies operating in their particular way. Immigration officers hold their powers totally independently of these other powers. Each agency derives its powers from PACE in an independent fashion. However, it clearly makes it a lot easier, when they are working together, to have powers deriving from the same source, which they do not have at present. The noble Baroness was gracious enough to admit that the 2009 Act needed to put that right at some point in the future. This is the moment at which we have been able to do so.

Motion agreed.