Illegal Migration Bill

Debate between Baroness Chakrabarti and Lord Beith

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

I beg to move.

[The Deputy Speaker (Lord Beith) (LD)]

The original Question was that Motion D be agreed to, since when Motion D1 has been moved as an amendment to Motion D. The Question therefore is that Motion D1 be agreed to. The matter will be decided by a Division.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Lord Beith

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, this group of amendments and the related clauses address the phenomenon that those unfortunate enough to have experienced it call digital strip-searching—the practice of demanding a complainant’s device, usually a mobile phone, in the police station in return for agreeing to pursue a criminal investigation, usually into an alleged sex offence such as rape.

I begin by thanking the Minister for taking the problem seriously and understanding the need to address it via statute. I am afraid that I remember Ministers standing at that Dispatch Box even a couple of years ago, denying that the practice was problematic, widespread or disproportionate and even arguing against the need for primary legislation—so-called consent, in exchange for a vindication of one’s fundamental right to an investigation into such a serious crime, being sufficient. Mansplaining to rape survivors is bad enough; “Baronsplaining”, if I may call it that, was a new level of insensitivity.

I will not insult the empathy of your Lordships’ House by reiterating why an extraction of data from a personal smartphone or computer is one of the most intimate searches in the modern era and can leave the complainant feeling more like a suspect, even if the extraction is swift and on the spot and takes no more data than is strictly necessary to the particular investigation. That successive Governments, DPPs and police leaders have failed to address this problem must have played at least some part in our appalling attrition rates for the prosecution of sex offences.

While this part of the Bill is a much-needed attempted correction, we would not need to amend it if survivor and human rights groups had been properly consulted. I declare an interest as a council member of the all-party group, Justice. Amendments 43 to 46, 48 and 51 in my name are advanced by a broad coalition of civil society organisations, led by Big Brother Watch, Amnesty International, the Centre for Women’s Justice and Rape Crisis. They are currently unconvinced that the Bill, either as it stands or with proposed government amendments, does enough to protect complainants and rebuild trust in the investigation and prosecution of sex offences.

Amendments 43 and 44 allow the complainant to be present during the extraction of data, unless that is impracticable or inappropriate, and create a time limit for any police retention of the device. Amendment 45 would make the threshold for extraction the tighter and objective ECHR test of strict necessity, and Amendment 46 would further tighten the criteria. Amendment 48 would allow a DCI review of the strict necessity of any extraction agreement, and Amendment 51 requires a fuller explanation of the person’s rights before they agree. I thank the noble Lord, Lord Paddick. Crucially, his Amendment 50 ensures that the explanation is given orally, as well as in writing. My noble friend Lord Rosser’s Amendment 52A makes provision for data in the hands of a third party.

Government Amendment 52 in the Minister’s name creates a proportionality but not a strict necessity test for extraction where the authorised person is of the subjective view that there is a risk of obtaining confidential information—of course there is. Amendments 53 to 56 replace the need for regulations with the laying of statutory guidance.

The government provision still contains fewer statutory safeguards than sought by the victims’ rights coalition, so I urge the Minister to move further in its direction by accepting its amendments, refining or tweaking them at Third Reading or, at the very least—and before the preparation of any statutory guidance under the new legislation—agreeing to meet with a small group of those representing voices that have been ignored for too long. I beg to move.

[Lord Beith (LD)]

My Lords, I am ready to support the commitment of the noble Baroness, Lady Chakrabarti, in bringing forward this amendment, and appreciative of the Minister’s moves as represented in the government amendments. I simply want to clarify some points, because there are still concerns in this area. Some of the concerns arise from the context.

Police abuse of procedures of various kinds has been apparent, even to the extent of affecting murder victims. It cannot be denied that within police forces there are a few people who will do these things. That makes it that much more difficult to have complete confidence in the voluntary arrangements that these amendments deal with. I ask the questions: how voluntary, how confidential, and how about disclosure?

How voluntary? When someone is asked to hand over their phone, the police officer usually says, “It’s up to you but unless you hand over your phone to me, I can’t see the Crown Prosecution Service having enough material to take this case forward, and I think that would probably be the end of your attempt to get justice”. I am paraphrasing, but that might effectively be what he says. That means the safeguards are important, and I welcome them, but will they be sufficient?

How confidential? Government Amendment 49 says “confidential” has the meaning it has in Amendment 47, but Amendment 47 does not actually define “confidential”. Clearly, on somebody’s phone there is a great range of confidentiality: from what might be a conversation about an intimate relationship through to a bank account, a family row or something else that someone regards as in need of safeguarding and treating as confidential. We need to be a little clearer about that.

What about disclosure? Can the Minister say a little about to what extent, if any, the requirement of disclosing material to the defence is affected by these provisions? That puts a further pressure, of course, on the victim of the crime, but it is an essential part of our justice system that when evidence is found that would assist the defence, it is the duty of the prosecution to hand it over. These are the points that concern me.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Lord Beith

Lords Hansard - part two & Committee stage
Wednesday 27th October 2021 Lords Chamber

[Lord Beith (LD)]

My Lords, this is an important part of the Bill and an important and large group of amendments. I want simply to concentrate on the two amendments to which the noble Baroness has just referred: Amendments 103 and 104, which are in my name.

Amendment 103 follows concern from the Delegated Powers and Regulatory Reform Committee and its recommendation to deal with what it describes as an inappropriate delegation of power. The Bill leaves to regulation all provision about the exercise of the powers in Clauses 36(1) and 39(1) to extract confidential information. Regulations are to implement a code of practice, which will itself be consulted on. The committee believes these powers should instead be in the Bill, and I agree. However, I part company with the committee in its view that these powers, once put in the Bill, should be amendable by affirmative instrument. That is the creation of a Henry VIII power to modify primary legislation by means of secondary legislation, so I do not think it is the best way to handle the matter. Of course, one of the problems is that, whereas the process of creating the original material, if it is in the Bill, is an amendable process, that does not apply to any subsequent regulations which would definitely alter the material on the face of the Bill.

The Government’s argument for their approach—leaving it all to regulations—is that this is an area of fairly rapid technological change. It might become possible, for example, to extract a relevant subset of information rather than having to extract everything. However, that could be covered in the drafting of the Bill. A major change in the future would justify parliamentary legislation. If the technology really does change the situation dramatically, both Houses could deal with the matter by primary legislation.

I am sure there is a potential compromise under which the Bill could state more extensively and clearly the general principles governing the extraction of confidential information. It already does so to some extent, but if it did so further, it would narrow the range covered by regulations, if they are necessary at all.

It would also be helpful if the Minister could explain why the process to revise the code of practice from time to time would be subject to the negative procedure only. If the regulations which embody the code of practice are going to be changed significantly, why should that be only by the limitations of negative procedure?

Amendment 104 is quite different. It probes the provision in Clause 41(2)(a) covering confidential journalistic material with the meaning given in the Investigatory Powers Act 2016. The regulations are intended to cover the extraction and use of such material. It would be helpful if the Minister could set out the Government’s position and intention on confidential journalistic material and to what extent it is to be treated differently from protected material, such as legal privilege. We need that to be spelled out more clearly. I look forward to the Minister’s response.

[Baroness Chakrabarti (Lab)]

My Lords, I rise to speak in support of the broad thrust of all these amendments and in particular to support the most important one of all, which is Amendment 80 from the noble Lord, Lord Paddick, to which I have added my name.

To begin by way of balance—both political and gender balance—I pay tribute to the noble Baroness, Lady Newlove, who could not be here this evening but who has been incredibly supportive of women’s groups and has been alive to this issue for some considerable time. She was sorry not to be able to be here.

A few years ago, when I was sitting where the noble and learned Lord, Lord Falconer of Thoroton, sits now, I had the privilege of questioning a former Justice Minister about the legal basis for the practice that women’s groups and victims of sex crime had called digital strip searching. Many in your Lordships’ House groaned as if I was using an inappropriate phrase. To be honest, I did not get a lot of support from many noble Lords on any side of the House, but it is better to be late to the party than not come at all.

I say that to the Minister because there is no competition for sainthood here. All sides of this House are a little late to this issue, but we now have this precious opportunity to grapple with it. I do not think any of these formulations are perfect yet. I am so grateful to the Minister for discussing this with me recently, among other issues, as even the progress that the Government have made so far in these amendments can be improved.

I think the noble Lord, Lord Paddick, in his very simple Amendment 80, has done something incredibly important. I questioned the previous Justice Minister about the legal basis for taking these phones at all. Imagine that you have been raped or assaulted and have been through this horrific experience, but you do what a lot of people find very difficult to do—we know about the attrition rates—and go with a friend to the police station, to be told that you now have to hand over your device. The Minister will forgive me, but we discussed this together recently. If I were to hand my phone over, I am not just handing over an old-fashioned telephone; I have so many dear friends and family members whose numbers I do not know, because I click their names to call them. I have just been raped, but I am now giving away my contact with these people, my diary, my shopping lists and my browser, which shows all the mental health and other websites I have visited. Let us be clear: this is probably more intrusive than searching my home. The Minister will forgive me, but we discussed this together.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Chakrabarti and Lord Beith

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, that was a happy accident for the Committee—not that I would ever describe interventions from the noble Baroness, Lady Jones, as accidental. It is also a privilege once more to follow the noble Baroness, Lady Hamwee, who is a tireless and humble servant of your Lordships’ House.

This is another wholly sensible amendment. If it is not accepted, it would be really useful to hear from the Minister under which scenarios a perceived threat to the economic well-being of the nation that did not also constitute either a threat to national security or a serious crime would justify not surveillance but criminal conduct. We need to keep returning to the fact that the Bill is not about a mere investigatory power or the authorisation of covert human intelligence, which were catered for long ago; it is about authorising criminal conduct by agents of the state with total immunity.

A point that I did not address previously was proportionality. We have been told a number of times not to worry about the lack of greater restriction and precision because proportionality will always be a requirement, so that will be safeguard enough. But, of course, proportionality will be left to the discretion of the individual authorising person in any number of agencies listed in the legislation. That is a great deal of discretion. The famous American legal philosopher Ronald Dworkin described discretion as

“like the hole in a doughnut”.

He said that it

“does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, ‘Discretion under which standards?’; or ‘Discretion as to which authority?’”

In other words, to leave everything to proportionality in the judgment of the person authorising the crime is no real safeguard at all. So it falls to us to be much more precise about the grounds on which, in a democratic society, we allow something as serious as criminal conduct and criminal immunity for agents of the state.

[Lord Beith (LD) [V]]

My Lords, Amendment 27 seeks to qualify the use of the concept of economic well-being as a ground for authorising criminal activity by human intelligence sources. I served on the Intelligence and Security Committee for over 10 years, many of them under the chairmanship of the noble Lord, Lord King, who spoke earlier this afternoon. I did not always agree with him but he was an admirable chairman. The breadth of the term “economic well-being” worried me then. It was an issue that I raised and explored, and that was in relation only to intrusive surveillance and the interception of communications, not the full authorisation of serious criminal offences.

There were some obviously strong candidates for recognition as threats to economic well-being—action by a hostile state or a terrorist or extremist group to destroy or disrupt key elements of our critical national infrastructure, energy supply, transport or banking and financial transaction systems. Now, they would clearly include a major hostile state or extremist action to disrupt public authority or business systems by cyberattack. But would we include Brexit and the negotiations for a deal? That clearly has massive implications for our economic well-being. What about pandemics? What if we get another one and we believe that it is being spread deliberately or recklessly by other countries or organised groups? What about a big overseas defence contract, perhaps involving up to 10,000 jobs, which we fear we might lose, with serious damage to our economic well-being? Any action we take might of course be harmful to other UK businesses participating in a rival consortium bidding for the same contract.

In the preceding debate, we also heard about the way in which economic well-being was used to justify actions against trade unionists, although I shall not repeat the examples or arguments used then. Where do we draw the line and who draws it? Is it an authorising officer? Is it an after-the-event decision taken by those with oversight responsibility, particularly the commissioner?

As I said, I asked these questions when the issue was intrusive surveillance, where the main risk to being found out was international political embarrassment. There are circumstances in which intrusive surveillance might be acceptable but authorising a serious criminal offence is not. Here, we are using a very broad and undefined concept for the authorisation of criminal offences, potentially including very serious offences. Obviously, it can be crucial to have a source of intelligence deep within a hostile state agency, terrorist group or criminal gang which poses a threat to critical national infrastructure. Such a source might have to appear to those around them to be a willing participant in preparing for, or even assisting in, a major crime which it is hoped can be thwarted by law enforcement. But there is potentially a significant difference between authorising a source in a terrorist gang to go along with serious offences in order to help prevent, as we all accept, a dreadful and deadly act and authorising someone with access to cybercrime to carry out a violent offence which might not be necessary in order to put an end to that crime.

The point that I want to make is that the concept of economic well-being is broad, and there is so little understanding of how it will be interpreted by the very wide range of agencies empowered by the Bill that it puts massive responsibility on the authorisation and review processes and on the code of practice. I hope that the Intelligence and Security Committee of Parliament will, at some point in the near future, undertake a general analysis of how the legislation is working and pay particular attention to the use in this area of the concept of economic well-being.

I am very glad that my noble friend has tabled this amendment, which attempts to limit the scope of economic well-being for this purpose to matters that are relevant to national security, but I think that I know the answer that the Minister will give to the suggestion—that, conceivably, it might exclude some serious threats to the health or livelihood of large numbers of our citizens. However, if we do not find a way of defining more clearly what we mean by economic well-being and limit its application in authorising criminal offences, we will take a serious risk: of leaving the authorising and scrutiny bodies dealing with these decisions with no framework and having to make it up as they go along.

Streatham Incident

Debate between Baroness Chakrabarti and Lord Beith

Monday 3rd February 2020 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating that Statement—a difficult duty in very difficult times. I join him in his tribute to our emergency and health services, and in his sympathies with those recovering from this terrible incident.

I hope the Minister will be able to acknowledge the pre-eminence of resources to deal with the threat that we face. He mentioned a number of responses that the Government are considering and/or planning, but resources are required to do anything significant in this area, whether in relation to the prison system, which is under strain, as has been discussed in your Lordships’ House over many years, in relation to the probation service, which is designated with engaging with people who have been convicted, or in relation to precursor terrorism offences or other offences. This also applies, of course, to policing and to our agencies. Nothing that any Government of any persuasion may legislate for can be achieved to “keep our people safe” without putting significant resources into a system that has been under pressure for some time.

In relation to the privatisation of prisons and probation, the issue is not just about resources but about accountability and the importance of those elected to govern—who have, of late, been given a significant mandate—taking ultimate responsibility for that primary duty. I am sure that Members of your Lordships’ House noticed, as I did, the Minister’s comments on sentencing. Few could have a principled difficulty with the idea that those sentenced for terrorist offences should not be released automatically without the input of a decision-maker such as the Parole Board. That, of course, involves significant resources, not just for the Parole Board itself but for those who must engage—by not just isolation but engagement—within the prison system, to make rehabilitation a real possibility; currently, too many of our prisoners are radicalised not on the streets of this country but in the prison system itself.

I also noticed in the Statement more than a hint that the sentencing legislation to come, perhaps on an emergency basis, might well be retrospective in its effect. I hope that the Minister will be prepared to comment a little further on the legal dangers of embarking upon extending the incarceration, or changing the sentence, of people who have already been sentenced. This a very serious principle, under not only human rights law but the common law of this country. Can the Minister give us some comfort, or at least some further explanation, as to why it is necessary to prioritise retrospective legislation—if I have that right—or to extend the sentences of people already convicted, sentenced and incarcerated?

There was also a hint in the Statement—understandably so—about people who will come to the end of their sentence one day or, indeed, as those of us who have dealt with these matters before will know, about people who have never actually been convicted of anything. I would sound a note of caution about a well-trodden and dangerous road that has been embarked upon in the past, in this jurisdiction and elsewhere, of restrictions on liberty, or punishment, or preventative measures, without charge or trial. Such measures bring dangers not just to the rule of law but to counterterror efforts themselves. I ask noble Lords who are just as experienced as I am—or more so—in these matters to consider the dangers of such a path. Have we not learned the dangers of injustices and perceived injustices that recruit and radicalise more people than they ever deter?

The Minister was quite right to express caution about commenting too much on this individual case, which must of course still be subject to intense examination and review. I hope that, in time, your Lordships’ House will be provided with a fuller and more thoughtful review and consideration of what happened in this case, so that there might be some learning in relation to all the matters we have discussed, including how this young man went down the path he did, and how he was engaged with in his younger life, including within the prison system. This is not to detract from the heroic efforts and courage shown by those who put their lives on the line over the weekend, or members of the public who, as always in this great capital of this great country, responded with stoicism, courage and unity.

[Lord Beith (LD)]

My Lords, I thank the Minister for repeating the Statement. This was a very serious incident; our thoughts are with the victims. It could have been much worse but for the rapid action of police officers. We should also recognise, as the noble Baroness, Lady Chakrabarti, did, the contribution of members of the public who came to the aid of the injured.

This terrorist was released by an automatic process which falls short of what we need to do to protect the public. We agree that, in future, release of those convicted of terrorist offences before the end of their sentence should require an assessment by the Parole Board, which will need the resources to do this. The Government have given some indication that they may give these. However, that is necessarily quite a limited thing, which will not in the end make a fundamental difference to the fact that most of these people will eventually come out of prison—a point which I will come to in a moment. If, for example, we have a terrorist conviction for possessing or distributing literature, the amount by which the sentence would be extended, from half to two-thirds, would be small as a proportion of a shorter sentence. In presenting this matter to the public, we should be clear about its limits. Is the Minister telling us—this is the point about retrospection that the noble Baroness referred to—that existing sentenced prisoners currently able to get release on licence at the halfway point will have their custody extended to two-thirds even if they are given a positive review in the Parole Board assessment? That seems to be not only retrospection but punishing prisoners for what others have done while they are inside.

The key point is that most of those we sentence for terrorist offences will eventually be released, so we have to deal with the risks. We need more resources to go into deradicalisation programmes in prisons, using any available expertise from other countries which have also been on this path. We need far more staff in our prisons, trained to deal with these prisoners. I do not think many people in the prison system would recognise the rosy picture tucked away in the Statement of life in our prisons. They house far more prisoners than they are built or staffed to hold, mainly because of longer sentences for a range of non-terrorist offences, which make prisons virtually unmanageable. We need rigorous management of terrorist prisoners, who all too often become members of a radical subculture in prison, which provides recruitment and training for terrorism and inspires the worst kind of fanaticism. When these prisoners are released, we need to be sure that they are supervised by properly financed probation services, police monitoring and, where justified, close surveillance and the involvement of the security services. We look forward to the Jonathan Hall review of multiagency co-operation, which is essential to dealing with this problem.

Finally, this House will want to look carefully at the legislation referred to in the Statement, because it touches on some important civil liberties issues. We must not let the terrorists destroy liberties which we all prize.