Strikes (Minimum Service Levels: Border Security) Regulations 2023

Lord Coaker Excerpts

Wednesday 6th December 2023 Lords Chamber

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

My Lords, maintaining services at our borders is essential to our security and prosperity as a nation. We depend on skilled professionals to ensure that, 24 hours a day, 365 days a year, our borders are strong and effective. The Government assess that, in the event of strike action by those charged with securing our borders, there are significant risks to the safety of our communities. Criminals may seek to take advantage of strike action to enter our country or to move illicit commodities through our ports and airports. People smugglers may seek to exploit gaps in our patrol activity to land illegal migrants on our shores.

We are focused on making the hard but necessary long-term decisions to deliver the change the country needs to put the United Kingdom on the right path for the future. It is for this reason that the Government have decided to include border security within the scope of the Strikes (Minimum Service Levels) Act 2023. These new regulations have two purposes: to make provision for minimum service levels in relation to strikes as respect to relevant border security services and to define those relevant border security services.

The regulations set out that border security should be provided at a level that means they are no less effective than if a strike were not taking place. The regulations also set out that passport services as are necessary in the interests of national security are provided as they would be if the strike were not taking place on that day. The relevant border services that must be provided are now defined as

“the examination of persons arriving in or leaving the UK; the examination of goods imported to or exported from the UK; the examination of goods entered for exportation or brought to any place in the UK for exportation; the patrol of … ports … the sea and other waters within the seaward limits of the territorial sea adjacent to the UK; the collection and dissemination of intelligence for these purposes; the direction and control of”

those engaged in providing those services; and such passport services as may be necessary for national security reasons.

As the employer for Border Force and HM Passport Office, it will be the Home Office that issues work notices to trade unions during strike action. A work notice is, to recap, a notice given in writing that identifies the members of the workforce who are required to work on a strike day and the work they are required to do to deliver the levels of service as set out in the minimum service regulations. It is important to note that the Act forbids an employer, when setting a work notice, from having regard to whether an employee is a member of a trade union or has taken part in trade union activities or used their services in the past. The trade union must then take reasonable steps to ensure that members of theirs who have been identified in a work notice do not take strike action. If the union fails to take reasonable steps, it may lose its legal protection from damages, claims and injunctions. I will return to that at the end of my speech.

The regulations stipulate that border security services can be provided only by employees of the Home Office, which will mean those who already provide border security services or the relevant passport services required in the interests of national security. This means that we will no longer need to rely on outside resource to provide cover. In the past, we have used other civil servants working elsewhere and members of the Armed Forces. We acknowledge and appreciate the efforts of those who have provided cover previously, but this cannot be a long-term solution.

We recognise that restricting the ability to strike, even in the way we are proposing, means that we need to ensure that compensatory measures are in place. The Government are therefore committing that they will agree to engage in conciliation for national disputes in relation to border security, where the relevant unions agree that this would be helpful. This is a significant and appropriate commitment that balances the ability of workers to strike with the safeguarding of our borders.

I note the amendment tabled by the noble Lord, Lord Coaker. I respectfully say that we have responded to the recommendations of the Delegated Powers and Regulatory Reform Committee. Its 27th Report of Session 2022-23, which was published on 2 March 2023, made two recommendations on what became the Strikes (Minimum Services Levels) Act. The first was that

“the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels … is likely to be exercised”.

The second was that

“the House may wish to press the Minister to provide an explanation of how the power to define ‘relevant services’ … is likely to be exercised”.

I respectfully submit that both recommendations have now been addressed through the regulations and in this debate.

I also respectfully disagree that the regulations are too prohibitive. This brings me to the Motion tabled by the noble Baroness, Lady Bennett, and to the findings of the Secondary Legislation Scrutiny Committee in its 3rd Report of the Session 2023-24, published on 23 November 2023. As I have set out, we are bringing forward these regulations to establish a fair balance between the ability to strike and enabling people to go about their daily life in the confidence that on a strike day our borders will still be secure.

Our recent experience of industrial action saw staffing levels of around 70% to 75% being delivered by Border Force. This enabled Border Force to carry out the essential functions listed in the regulations. Our estimate of the impact on HM Passport Office is that around a dozen or so personnel may be required to work. We none the less recognise that these new measures may mean that members of staff may not be able to strike. It is for that reason that we have made a commitment regarding conciliation, and I think this commitment is significant.

Turning to the question of trade unions’ liabilities, I would simply say that unions that continue to comply with trade union law are completely unaffected by this change, and therefore the issue of liability will not arise.

I call on Members of your Lordships’ House to reject the amendment tabled by the noble Lord, Lord Coaker, and the Motion tabled by the noble Baroness, Lady Bennett. I beg to move.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his introduction, although I disagree with much of it. We have heard in earlier debates from my noble friends Lady Merron and Lord Collins the general view that we have about these regulations. The law is not a substitute for proper negotiation. It is the failure of the Government to negotiate properly and reasonably with so many groups of workers that has led to this. Instead of addressing this failure of public policy, the Government have sought to undermine the right of people to take industrial action to protect their interests. Indeed, on the contrary, following the Act, regulations are put in place with huge consequences for unions and their members and workers if they fall foul of often ill-defined and ambiguous legislation. We will repeal them if we win the next election and will have no hesitation in doing so. The legislation that was outlined by the Minister to the Delegated Powers and Regulatory Reform Committee should properly have been in primary legislation, which is one of the points that the committee made and which the Minister did not answer or point out in his remarks.

I turn briefly to the regulations with respect to border security and the reasons we regret them. Can the Minister confirm that because the regulations involve employment law, they do not apply to Northern Ireland? It is important to understand what assessment the Government have made of a situation in which there was to be industrial action in Britain under these regulations but not in Northern Ireland, where, presumably, existing law applies.

Can the Minister also explain why the Explanatory Memorandum spoke—as the Minister did here—of the impacts on UK immigration, UK territorial waters and UK border security staff? He will know that the UK includes Northern Ireland but these regulations are about Britain and so do not include Northern Ireland. Can he explain why the Home Office cannot distinguish between the terminology of the UK and the terminology of Britain with respect to these regulations?

Can the Minister explain why the measures have been extended to cover HM Passport Office? This appears, whatever the Minister says, to be a last-minute addition to the legislation, going beyond the earlier indications and debates that were had with respect to the Act—hence the amendment that I have put. The impact assessment says that a small number of HM Passport Office staff—the Minister talked of 12—will be affected. Can he outline what roles that will be and whether the passport staff in Belfast, in Northern Ireland, will be affected? Presumably they will not, so what will happen? When was the decision made to extend the regulations to HM Passport Office? Why were the trade unions not consulted about that change?

The border security regulations allow an employer to serve a work notice that requires border services to be

“no less effective than they would be if the strike were not taking place on that day”.

—see Regulation 3(1). The very real question that results, as trade unions point out, is to what extent there is any reason for anyone to strike if it is not supposed to have any impact at all. How is that proportionate? That is why we regret these regulations before us.

The TUC points out how strict this short but powerful set of regulations with respect to border security is. The Government say that, to ensure the minimum service levels that they have outlined, this SI necessitates 70% to 75% of border staff working. How on earth is it proportionate to effectively deny three-quarters of the workforce the right to strike? How on earth is it reasonable or proportionate that, in many cases, only one in four workers in border security will have the right to strike? Hence, I tabled the regret amendment.

In many small ports, because of the minimum service levels, there will effectively be no right to strike at all. Can the Minister also explain, notwithstanding the points he has made about conciliation, what the conciliation process will involve? How will it actually work? Will there be frank and open discussions with the trade unions about it to ensure that a system is put in place that works?

The Government make considerable play of doing this in the interests of the public, but millions of trade union members are members of the public. Is the noble Lord sure that these regulations, interfering with the right to strike to such an extent, are consistent with our legal duties? Of course, we rightly praise our border staff and others for the important and crucial work that they do. However, in wage negotiations and conditions-of-service talks, they have been disappointed that this praise is not turned into acceptable offers when it comes to their pay and conditions. In those circumstances, and subject to a ballot, trade unions should have the right to strike. The proposed restrictions are not proportionate and can never replace fair and open negotiations based on mutual respect, even when that is difficult. It is for those reasons that I have tabled my amendment to the Motion.

Amendment to the Motion

Moved by

--- Later in debate ---

Moved by

[Lord Coaker]

As an amendment to the motion in the name of Lord Sharpe of Epsom, at end to insert “but that this House regrets that the draft Regulations contain policy detail that was not included in primary legislation, contrary to the recommendation of the Delegated Powers and Regulatory Reform Committee; and considers, given that the impact assessment acknowledges that some workers’ right to take industrial action will be affected or denied, that they are too prohibitive.”

[Lord Coaker (Lab)]

My Lords, the noble Lord, Lord Sharpe, says that it is not prohibitive to stop three-quarters of a workforce from taking strike action. I leave that on the table for others to judge and come to their own conclusions about, but I think it is too prohibitive and disproportionate.

The noble Lord, Lord McCrea, raised a serious point, and it is good that the noble Lord, Lord Caine, is here. The Explanatory Memorandum to these regulations talks about the United Kingdom all the way through, yet the Act talks about the regulations applying only to England, Scotland and Wales—Britain, not the UK. Even the Minister talked about UK territorial waters and UK immigration. As the noble Lord, Lord McCrea, others in Northern Ireland and the noble Lord, Lord Caine, will tell him, you get steeped in this—you cannot talk about Britain in legislation and then include Northern Ireland. That is not acceptable.

In partially responding to this, the Minister said that he would write a letter. This is a really serious point, as it means that we cannot have answers about the Passport Office in Belfast. He made all sorts of points about immigration, trafficking, drugs, et cetera; there may be very good reasons why this does not apply to Northern Ireland, but you cannot have an Explanatory Memorandum that talks about the UK and then say that it is applicable only to England, Scotland and Wales. That is a really big failing on the Government’s part. It should not happen and must not happen again. I beg leave to test the opinion of the House on my regret amendment.

Immigration and Nationality (Fees) (Amendment) (No. 2) Regulations 2023

Lord Coaker Excerpts

Monday 4th December 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I thank my noble friend Lady Lister for her regret Motion, the moving and articulate way in which she put her case and the very serious questions that she raised and points that she made. We owe her a debt of gratitude for bringing it forward.

As many noble Lords have pointed out, we have before us a very important SI of many pages, which raises many significant issues for us to think about and discuss. It is only with a regret Motion that this Chamber gets this opportunity to do that—and there is a wider question for us about how secondary legislation has huge impacts on our country and the people in it.

Many noble Lords have made significant and important points. The noble Lord, Lord Moylan, logically and methodically pointed out the distinction between the naturalisation process and the process of citizenship. I know that the Labour Government to whom he referred tried to address that in the British Nationality Act 1948, which became law in 1949. It was in reference to that that I was nodding. He made the important point that the Minister will have to look at how the Government are distinguishing between those two things—or are they just ignoring it?

My noble friend Lady Primarolo logically and movingly put the case for what citizenship means, the rights of someone born here, and how that generates citizenship rights that we should respect. She talked about the difference between that and somebody going through the other process, which the noble Lord, Lord Moylan, mentioned. That is a very important matter, which we look forward to the Minister explaining to us. I congratulate my noble friend on that—and, to be fair, the noble Lord, Lord Moylan, who brought it up as well.

As has been pointed out, this policy of immigration fees has been used for many years, but that does not mean that the proportionality and fairness of, or the rationale for, these significant rises in fees payable for most immigration services cannot be questioned or debated. The fee increases that we are looking at have been very significant, with a 15% or 20% increase for most fees and many facing a much bigger increase. For example, there is a 35% increase for student visa fees, for applications made outside the UK. There are also arrangements for a new electronic travel authorisation for all non-British or Irish passengers visiting or transiting through the UK who do not need a visa, who have to obtain permission first and pay a fee of £10. It is important for the Government to say whether they will assess the impact of that new ETA arrangement. Although the immigration health charge increase of 66% is not included in this instrument, can the Minister update us on any progress with it?

The Home Office tells us that the rationale for changes is to

“significantly increase the income generated through immigration and nationality fees for the purpose of meeting costs within the wider migration and borders system”.

Can the Minister explain that in more detail? Can he also say why the overall increase is well above the rate of inflation? The Home Office justification is to say “Well, we haven’t raised them significantly since 2018”. Why have a policy of small increases for a number of years followed by a huge increase in another year? Why not increase them proportionately, rather than have the massive increase that we see this year?

What assessment have the Government made of the various groups affected by these changes? A number of noble Lords made that point. In other words, what is the human cost of the changes that the Government are bringing forward? Can the Minister clarify, for the avoidance of doubt, another question that has been asked: how much do fees currently raise? What is the unit cost for the processing of an individual application compared with the fee charged? How much additional income will the rise in fees actually raise? What is the total cost of the system this year and the predicted cost next year? It is very difficult to find, in any of the information I have looked at, the exact figures the Government are using to justify the fees and the overall cost of the system.

Given the impact of fees on various migrants, how many applicants are currently covered by the fee waiver scheme and what numbers are predicted in future? This was another point made by a number of noble Lords.

As the noble Lord, Lord German, and others pointed out, the Secondary Legislation Scrutiny Committee makes considerable criticism of the Home Office for breaking the 21-day rule by bringing the SI into force on 4 October—19 days after the laying of the instrument rather than 21 days. I think your Lordships can understand why a proper process is so important, given the interest in this debate. I point out to the Minister that 21 days is not a maximum but a minimum, so that noble Lords can discuss this. Can he explain why this happened, given that it is, I think, the third time it has happened? Which Minister signed it off, and have they been told that it is unacceptable? The Minister will get up and say, “We’re very sorry and we need to do something about it”, but it is a process that seems to be happening time and again. It is simply not good enough.

Alongside that, can the Minister explain why the Explanatory Memorandum and the equalities impact assessment were not published in time to go alongside this SI? They have now been published but they were not published at the appropriate times. These failings of process are happening time and again. I think the Minister will agree, because I know he understands the importance of process and frankly, to be fair to him, does his best to ensure that the proper process is followed, that this is extremely important given the various points made in this debate.

As we discuss this important SI, there has been yet another statement on migration. Are the Government sure that their assessment of the impacts on vulnerable migrants is accurate? Are they sure that these fee changes will not have an adverse impact on skills shortages for UK businesses, including in the NHS and in care sectors, for example? As I said, fees have long played a part in the overall immigration systems, but they need to do so in a fair, principled and proportionate way, which means that many of today’s questions need full and frank answers from the Government.

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

My Lords, I thank all noble Lords who have spoken, particularly the noble Baroness, Lady Lister of Burtersett, who tabled this debate and has given us the opportunity to discuss these important issues. Before I address the points raised, I will summarise how fees are set and the role of Parliament in setting fees for immigration and nationality applications.

It is important to emphasise that the Home Office cannot set or amend fee levels without obtaining the approval of Parliament. This ensures that there are checks and balances in place and full parliamentary oversight of the fees regime. Immigration and nationality fees can be set only within the limits specified by the Immigration and Nationality (Fees) Order, which include the maximum fee levels that can be charged on each application type or service. This is laid in Parliament and subject to the affirmative resolution procedure.

Individual fee levels are calculated in line with Managing Public Money principles and the powers provided by the Immigration Act 2014. Specific fees are set out in regulations, which are then presented to Parliament and subject to the negative procedure. The regulations laid by the Government in September increased fees across a number of immigration and nationality routes, including those for people seeking to visit the UK as a visitor and the majority of fees for entry clearance and for certain applications for leave to remain in the UK, including those for work and study.

Noble Lords are aware of the Government’s intention that those who use and benefit from the migration and borders system should contribute to its funding. In that, I agree with my noble friend Lady Altmann. The burden of operating the system should not unduly fall on the UK taxpayer. To answer directly the noble Baroness, Lady Blower, that is not profiteering—it is protecting the interests of the British taxpayer.

The increases that came into effect in October were, in the majority of cases, the first substantial increases made since 2018. They are proportionate when considered against wider price trends in the intervening period, to answer the noble Lord, Lord Coaker. At a time of high inflation and record migration, it is important to ensure that the system is sustainably funded. The recent increases have led to the raising of some concerns in the House around the impact on the UK economy and the potential for people to be deterred from visiting, working in and studying in the UK. As I have already set out, the Government’s policy is that the cost of operating the migration and borders system is to be funded by those who use it. This policy is at the heart of the decision to increase fees.

The Government have published an economic impact assessment—I will come back to this—alongside the regulations, setting out their potential impacts. The Government keep fees under review and will continue to monitor the position, but there is limited evidence to date that fee increases have impacted on the number of people coming to visit, work in and study in the UK. In answer to the noble Baroness, Lady Lister, the best interests of the child were considered in the economic impact assessment.

The noble Baroness, Lady Lister, also raised concerns about the potential for people to fall out of lawful immigration status and face significant debt and precarity. Those who are in the UK on family and human rights routes can be assured that these regulations made no changes to the provision of existing waivers and exceptions from the need to pay application fees in a number of specific circumstances. That includes affordability-based waivers for entry clearance and leave to remain on family and human rights grounds, which ensures that families unable to afford the fee are not prevented from making an application to enter or remain in the UK. Additionally, for children seeking to register as a British citizen, an affordability waiver was introduced in 2022 and has improved access to British citizenship for children who may face issues in paying the application fee. I say to my noble friend Lord Moylan that I will come back to this subject in a second.

These provisions ensure that the Home Office’s immigration and nationality fee structure complies with international obligations and wider government policy. We believe it represents the right balance between protecting the integrity of the department’s funding model and helping to facilitate access to immigration and nationality products and services, including for the most vulnerable. I note the concerns raised about the potential for these fee increases to increase the operational burden on the Home Office. We acknowledge that the recent increase may see more people seeking a fee waiver, but the Home Office has an obligation to ensure that the integrity of the migration and borders system’s funding model is maintained. I hope that provides at least some reassurance that those who cannot afford the fee will not be prevented from making an application to enter or remain in the UK on human and family rights grounds.

As I said earlier, in recent years the Government have taken steps to ensure that the fee for children seeking to register as British citizens is not a barrier to them making an application, through the provision of the waiver on the basis of affordability and the fee exception for children who are looked after by local authorities. Adult registration applications do not have a waiver available, but most of the applications for registration are made by children.

On the breach of the 21-day rule, I say to the noble Lord, Lord German, that—in comparing this with discussions about the treaty—there is a significant difference between primary and secondary legislation. On this particular rule, I regret that it was late. The scheduled date of commencement of fee increases was 4 October, in view of a planned laying date of 13 September, with the commencement date used as the basis for wider communications and delivery planning activity. However, late amendment to the regulations meant that this was not possible. Given that delaying the commencement date would have cost the department an estimated loss of additional revenue of about £2 million—a significant amount, which would have impacted priority functions—and that further changes to updated front-end systems would be needed at some additional cost and delay, it was determined that the original commencement date should be maintained.

Counter-Terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations 2023

Lord Coaker Excerpts

Monday 4th December 2023 Lords Chamber

[Baroness Suttie (LD)]

My Lords, I thank the Minister for his explanation of these regulations. As he explained, they are consequential on the National Security Act and do not create new powers or make substantial changes to the primary legislation.

Clearly, there is cross-party consensus on the need to protect the public and to ensure national security, including border security. As a general comment, however, a balance should always be struck to ensure that measures are proportionate and that civil liberties are respected.

I will concentrate my very brief remarks on the draft Counter-Terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations, which, through requiring a counterterrorism police officer of at least the rank of superintendent to authorise the retention of confidential business material, bring the process in line with existing terrorism legislation. In his concluding remarks, can the Minister expand on how the Government intend to ensure this will not add undue burdens to the system?

I thank the Minister for the letter he sent to noble Lords last week outlining the consultation that took place on these regulations. It is to be welcomed that the Government took on board the comments from Police Scotland on the videorecording code. However, regarding Northern Ireland and the very particular set of circumstances and international commitments regarding the border there, can the Minister confirm that, in the continued absence of a Northern Ireland Executive, consultations took place with the PSNI?

I was struck by the fairly small number of responses received to the consultation. I believe only five responses were received; perhaps the Minister could confirm that. I note that the consultation period was during the peak summer holiday period from 20 July to 31 August, which is perhaps, in part, an explanation for this. Can the Minister say if there was any particular reason why the consultation period was so relatively short?

[Lord Coaker (Lab)]

My Lords, I thank the Minister for outlining the SIs and for the statement he made. As he said, we have three statutory instruments before us: two relate to the National Security Act 2023, and one relates to the Counter-Terrorism and Border Security Act 2019. We fully support these instruments and the consequences they will have on the threats posed by hostile activities and for the national security of our country. I join the Minister in thanking our intelligence services and those who work so hard to keep us safe.

Net Migration

Lord Coaker Excerpts

Wednesday 29th November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I just alluded to that. The ONS is operationally independent of government—its work is overseen by the UK Statistics Authority—so any decision around that methodology would be for the ONS. Its definition of a long-term migrant aligns with the UN definition and is anyone who comes to the UK for 12 months or more. Students who remain in the UK for less than 12 months will not, at present, be counted in the ONS estimates. However, I am happy to associate myself with the noble Lord’s remarks about how higher education is a massive export industry for this country. Of course, it delivers enormous soft power benefits too.

[Lord Coaker (Lab)]

My Lords, how has it come to the point at which net migration is three times the level of 2019, when the Government promised to reduce it? It has taken four years for the Government to come up with any sort of plan, but we do not know what it is because members of the Cabinet are fighting among themselves about what it should be. Can I make one suggestion? Do the Government agree with us that the unfair wage discount, allowing overseas recruits to be paid 20% less than the going rate, should be ended and replaced with proper training and fair pay in the UK?

[Lord Sharpe of Epsom (Con)]

The noble Lord is referring to the shortage occupation list. The Migration Advisory Committee is clear that immigration can be a sensible solution to occupations that are in shortage, at least in the short term, but the Government believe that no occupation should be on the list for ever. Sectors must therefore present a realistic strategy to end their reliance on migration before such jobs can be added to the list, and compelling evidence that they should remain. We asked the Migration Advisory Committee, as part of its recent review, to consider whether the discounts should be stopped. The Government are considering the recommendations of that review and will respond in due course.

Iranian Islamic Revolutionary Guard Corps

Lord Coaker Excerpts

Wednesday 29th November 2023 Lords Chamber

Asked by

[Lord Coaker]

To ask His Majesty’s Government what plans they have to proscribe the Iranian Islamic Revolutionary Guard Corps as a terrorist organisation.

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

My Lords, the Government continue to take the threat of the IRGC very seriously and to condemn its actions. The Government will always consider the full range of powers available—including our robust counterterrorism powers, such as the proscription tool, where appropriate—to address the threat posed by Iran and the IRGC.

[Lord Coaker (Lab)]

My Lords, there is a compelling case for proscribing the IRGC. Scotland Yard says that since the start of 2022, Iran has made 15 attempts to kidnap or even kill British and UK-based people. The director-general of MI5 has warned of Tehran projects posing a threat to the UK. Would not such a proscription be in the interests of national security at home and abroad, as well as peace and security in the Middle East, as highlighted by the current conflict? With the USA and the UK’s Countering Extremism Commissioner now calling for the proscription of the IRGC, what possible reason is there for the Government to delay in outlawing a terrorist organisation that threatens security both at home and abroad?

[Noble Lords]

Hear, hear!

Metropolitan Police Reform

Lord Coaker Excerpts

Monday 27th November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

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

[Lord Coaker (Lab)]

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

[Lord Sharpe of Epsom (Con)]

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

Rwanda: Asylum Arrangements Treaty

Lord Coaker Excerpts

Tuesday 21st November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

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

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

of refoulement—

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

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

[Lord Coaker (Lab)]

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

[Lord Sharpe of Epsom (Con)]

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

Investigatory Powers (Amendment) Bill [HL]

Lord Coaker Excerpts

2nd reading
Monday 20th November 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I am sure the Minister was referring to me. But, seriously, I thank him for that helpful introduction and for the briefings that he and his officials have organised, including in buildings nearby later this week.

This is an important Bill, and we all need to ensure that it delivers effectively what we all wish for as we seek to defend our country and our freedoms against outside threats. I say to noble Lords including the Minister that we fully support the passage of the Bill, for the reasons that he outlined in his conclusions, and recognise the changed security environment that necessitates the need for this piece of legislation updating and improving the Investigatory Powers Act 2016.

There have clearly been significant changes to the threat picture, with developments that had perhaps not been fully foreseen over the last few years. Of course we have to remain vigilant against any terrorist threat, but even that has been overshadowed by other factors—in particular, the pace of geopolitical change and the extent of its impact on the UK and its people. The invasion of Ukraine, the weaponisation of energy and food supplies, artificial intelligence, the actions of Iran and the more aggressive stance with China in the South China Sea and beyond are just some of many examples. Importantly, this also manifests, as the Minister will know better than anyone, as threats such as economic espionage, the buying of influence, cyberattacks, disinformation and indeed, as we saw, the Salisbury poisoning. In the face of that hostile state activity, we have to change.

I join the Minister, and no doubt many others, in saying that we are very fortunate in having had the extremely helpful—and for me, I might add, understandable—report by the noble Lord, Lord Anderson, to guide us in this. It is also good to see other Members of your Lordships’ House who have extensive experience in this area to inform our debate. In congratulating the noble Lord, Lord Anderson, I shall raise some general points from his report and then deal with specifics as appropriate for a Second Reading debate.

It is of huge significance and importance that the noble Lord, Lord Anderson, did not produce a classified annex to his report. In an area of this importance and sensitivity, you obviously need secrecy and confidentiality, but there has to be as wide a public and parliamentary debate as possible. There are real issues of principle being discussed here, not least the right to privacy and the protection of an individual’s information or personal data. As I say, there is a need for the security services, law enforcement and others to act and to have the intelligence tools that they need, but the balance between national security, tackling serious crime and an individual’s privacy should and must, quite rightly, be a matter for public debate. When fundamental rights are at stake, that needs to be cautiously challenged, and this House will need to do that in Committee, while, as I say, fully supporting the overall passage of the Bill.

Chapter 10 of the report asks what comes next. Such is the pace of change and challenge, the noble Lord, Lord Anderson, recommends that, once this amending legislation is on the statute book, we need to move on very quickly to what comes next.

I shall turn to the Bill with some general comments, with the more specific questions coming in Committee. Bulk personal datasets are clearly important, and the Bill will allow a lighter-touch regulatory regime. The threshold will be where individuals have a low or no expectation of privacy in respect of that data. The Bill seeks to set out examples of the sorts of cases where such a regime would apply for the examination of material by the UK intelligence community. I believe there will need to be a careful debate about what such a threshold means. What does “low” mean? Would all such activity be subject to the approval of a judicial commissioner? Some have already expressed particular concern about new subsection (3A)(e), inserted into Section 11 by Clause 11(3), which says that communications data can be obtained

“where the communications data had been published before the relevant person obtained it”.

Does that mean it is available simply by having been published?

On a more general point, how does all this relate to the Data Protection Act, where personal data may be protected but is potentially not so by the new Bill? Big Brother Watch gives the example of the potential concern over Clearview, which has a mass of facial images—approaching 30 billion—harvested from social media. That could be considered a low-privacy database since the photos had been made public by the individuals, but the Information Commissioner’s Office found Clearview in breach of the Data Protection Act. This argument could therefore potentially be extended to many areas, such as Facebook posts, and will therefore need careful scrutiny, along with the more general point about the relationship between this Act and the Data Protection Act.

There are to be new proposals for internet connection records; they are clearly important, but changes are again being made. In particular, on the justification for target discovery—which, in essence, is a more generalised surveillance, if I have understood it correctly—is it the case therefore that there may not necessarily be a need for suspicion to lead to a particular form of surveillance? It is also interesting to note that, according to the report by the noble Lord, Lord Anderson, as I understand it, this extension or facilitation of target discovery for internet connection records should be limited to UK intelligence. So why have the Government extended this to the National Crime Agency as well as to the UK intelligence community? In other words, why has it gone beyond the recommendations of the noble Lord’s report?

The need for the communications of legislators to be secure and confidential—say, in discussing matters with constituents or other bodies—except in the most exceptional circumstances, is of real importance. Following the IPT case in 2015, there was legislation in the 2016 Act that tried to protect this principle by allowing any interception or obtaining of any communication to be allowed only with the so-called triple lock—in other words, after Prime Ministerial authority was given. The question this Bill seeks to answer is: what happens if the PM is, in the Minister’s words, “unavailable”? This seems to me to be a reasonable question to ask. We need to probe Clause 21 carefully and ask whether the inclusion of any Secretary of State is too broad a definition, what the involvement should be of senior officials, as laid out in the clause, and whether the proposed definition is correct. For example, would it not be better to specify the Secretaries of State as the Home Secretary or the Defence Secretary, or other senior Secretaries of State, rather than the broad blanket of any Secretary of State? The senior officials are explained, to an extent, but we need to explore in Committee whether we need to be more circumspect with what we mean by that.

We have also received a briefing from Apple, and it is important for us to reflect on its concerns. As I have made clear, we support the passage of the Bill, subject to proper scrutiny, which we and others will give in Committee, but Apple’s concerns need to be addressed by the Government in a public forum, to ensure trust and confidence in the new system we seek to introduce. Why is Apple wrong to have concerns about pre-clearance requirements?

On extraterritoriality, the noble Lord, Lord Anderson, says on page 57 of his report that he makes “no recommendation” on a policy issue for DRNs or the importance of end-to-end encryption. End-to-end encryption is a key security tool for us all, but it is also one that can be used, and is used, by malicious actors. We understand that, so how do we strike a balance between the necessity for the privacy and protection of an individual’s data and the need for security services and others to have potential access to that data to uncover serious crime or terrorist activity? In Committee, we need to discuss where that balance should be made and where that line should be drawn; it is an important area of discussion.

Throughout the report by the noble Lord, Lord Anderson, and the subsequent Bill before us, we see various adaptions of warrant processes, judicial oversight and the role of the commissioner, with many proposals. While we are generally supportive, we will need to examine these in more detail in Committee, but I have a few general points to raise now. For example, does the Bill help to sort out confusion in government? Incredibly, on page 28 of the noble Lord’s report, the MoD cannot, even when co-located in a hostile environment, transfer some data to the UKIC. Does the Bill sort that out? That is an important question that I put on the table for an answer—not necessarily now, but certainly in Committee.

Domestically, on the same page, we are told that it was a revelation to UK intelligence community officers to see how easily other government departments subject only to normal data protection requirements could access, retain and process bulk personal data. This Bill should not go through without the corresponding changes to policy and practice, highlighted by the above two apparent anomalies. No doubt there are many more. It would be a wasted opportunity were we not to address some of those examples which seem to draw attention to anomalies within the existing system which many of us would expect a Bill such as this to sort out.

Co-operating should not be as difficult as it seems to be. Openness and transparency are crucial so that we can be sure that, as far as possible, the number of various warrants applied for and refused is made public. More generally, what role is there for parliamentary oversight as well as the intelligence commissioner and so on? The Intelligence and Security Committee is our important eyes and ears on this matter. What part will it play in all this? Are its terms of reference, which I have said in other debates are in need of review, sufficient to allow the necessary level of scrutiny? If it is not appropriate for the committee to be involved, where is the parliamentary scrutiny? Where is the mechanism for reporting to Parliament? It would be interesting to hear that from the Minister. Yes, there are various commissioners and there is senior ministerial involvement, but what of Parliament? Parliament cannot be seen in areas as important as this as an afterthought or an irritant. It should be a proper custodian of our values in this difficult area.

I have laid out some of the key issues, although there are many more. I conclude by saying that, as the noble Lord, Lord Anderson, pointed out in his report, we cannot allow the debate to be characterised as being between those who stand up for security, for our country, and who understand what needs to be done, versus a privacy lobby that does not live in the real world. Of course, operational security cannot be compromised and changed threats require policy to be developed. We support the Government in this through the changes which are needed in this Bill. The challenge is to do so in a way that is consistent with our principles of democracy and human rights. Sensible debate and discussion surely will help us towards something that we all want—to build a consensus as far as possible over protecting our nation and allies against those who would do us harm, and not to undermine privacy or freedoms unless it is essential to do so.

Illegal Immigration

Lord Coaker Excerpts

Monday 20th November 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, does not the Rwanda judgment made by the Supreme Court make damning reading for the Government? Does it not expose once again the complete failure of the Prime Minister to get a grip, even at the most basic level, on the boats and asylum crisis?

The previous Home Secretary, appointed by this Prime Minister and then sacked, said to him:

“If we lose in the supreme court, … you will have wasted a year … only to arrive back at square one … your magical thinking … has meant you have failed to prepare any sort of credible plan B”.


Those are the words of one who was Home Secretary until only a week ago. The noble Lord, Lord Murray, who is also now not in post, was repeatedly told of problems with the Rwanda scheme as he drove the then Illegal Migration Bill through this House. Does the Minister agree that the former Minister was wrong to ignore the warnings that this House repeatedly made? These warnings were contained in the Supreme Court judgment, which outlined a number of problems with the policy. Ministers were warned about the failings in the Rwanda asylum system, so why did they just press on? They were told repeatedly of the failings of the Israel-Rwanda deal, so why did they just press on again?

The Government say that they will introduce a new treaty to deal with all of this, but why only now? Why has so much time been wasted, when these problems were known about? Can the Minister explain how the Rwanda policy, if implemented, can actually work? Since the Act came into force—since the 20 July date that the noble Lord, Lord Carlile, brought forward in an amendment in Committee—approximately 13,000 people have arrived illegally. According to the Act, they are deemed illegal and therefore need to be sent abroad. How are they to be sent to Rwanda? Are they all expected to go to Rwanda, or are the reports we read in today’s media accurate that the Government are considering giving thousands of people deemed to be here illegally, in light of the Supreme Court judgment and since the passage of the Act, access to the asylum system? Is not the truth of the matter that thousands upon thousands of people deemed illegal are being held here indefinitely, with families often traumatised, and women and children in limbo? What sort of policy is that?

The Government are bringing forward new legislation, which we will consider fully and to which we will give proper consideration in such an important area in your Lordships’ House. But what do we learn? We learned today that the Government are split on what this should be. Is it the case that the current Immigration Minister is pushing for this new legislation to disapply the Human Rights Act and ignore the ECHR, even though the Supreme Court, in its judgment, said that the ECHR had nothing to do with it? Does the Minister—and indeed the Home Secretary—therefore agree with the Immigration Minister, or with those who say that this hard-line approach, as proposed by his colleague, the current Immigration Minister, is actually mad? Does he agree with the Home Secretary, who in private—as reported in the newspapers—also confirmed, in colourful language, that he regarded the policy as to be less than satisfactory?

What of the plan in the new legislation to simply declare Rwanda a safe country in its upgrade to change it from an agreement to a treaty? Again, the latter is something that many in your Lordships’ House have said should actually have happened. How long will it take? What do the Government say to Lord Sumption’s criticism that you cannot

“change the facts, by law”

by proposing legislation that would, as I say, declare Rwanda safe? How would that work? As the former Supreme Court judge said, you cannot say that black is white.

Would it not have been a much better thing—rather than the wasting of time that we have seen from the Government, with over £140 million spent without a single person sent to Rwanda—to have had a proper plan to tackle the criminal gangs? That is something that I moved in Committee, only to see it rejected, and then to see the Prime Minister announce the same policy two weeks after the passing of the Act. Would it not also have been a good idea to improve our agreement with France, to speed up asylum decisions, to establish safe and legal routes and to tackle the problem at source? We have this chaos: a Government who are divided, no clarity on the new legislation to come, Ministers sacked, briefings and counter-briefings, and some even saying at the highest level in our governing party that we should just ignore the law, which is simply outrageous.

We all know that there have to be effective border controls and that illegal immigration needs to be tackled, but to do so the Government must get a grip for the sake of our international reputation. They must deliver the effective humane immigration system that this country deserves, and not the chaos that we have now. It is simply not good enough and the Government need to get a grip.

[Lord German (LD)]

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

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

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

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

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

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

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

Finally, I note that the Statement says:

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

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

Policing of Marches and Demonstrations

Lord Coaker Excerpts

Monday 13th November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

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

[Lord Coaker (Lab)]

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

[Lord Sharpe of Epsom (Con)]

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

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