Technology Rules: The Advent of New Technologies in the Justice System (Justice and Home Affairs Committee Report)

Baroness Hamwee Excerpts

Monday 28th November 2022 Grand Committee

Moved by

[Baroness Hamwee]

That the Grand Committee takes note of the Report from the Justice and Home Affairs Committee Technology rules? The advent of new technologies in the justice system (1st Report, Session 2021–22, HL Paper 180).

[Baroness Hamwee (LD)]

My Lords, I am delighted to move this Motion and I hope the Grand Committee will support it.

This is the first formal report of our committee, which was formed in April last year. At the start, our members knew little about new technologies—I hope I am not being unkind to any of them. After some tuition, we confessed ourselves terrified, but we should not have been terrified about not understanding technologies; in a way, that is the point. The report is about new technologies and how they affect the citizen in the justice system. We looked largely at policing because that was where the evidence led us, but our recommendations have wider application.

Quite early on I asked, rhetorically, “How would I feel if I was arrested, charged, convicted and imprisoned on the basis of evidence I did not understand and could not access?” Towards the end of our work, another member said, “Look at Horizon and the Post Office; look at what happens when you assume the computer is always right”.

We heard about the software and tools used to record, store, organise, search and analyse data, and those used to predict future risk based on the analysis of past data. Predictive policing includes identifying, say, an estate where there has been a lot of crime, putting police in and detecting more crime than in an area that is not overpoliced. The data reflects this increased detection rate as an increased crime rate, and that is embedded in the next predictions. It is a vicious circle which, as a witness said, is

“really pernicious. We are looking at high-volume data that is mostly about poor people, and we are turning it into prediction tools about poor people.”

The noble Lord, Lord Blunkett, who had hoped to speak this afternoon but, given the change of time, has a clash and apologises for not being here, asked me to say the following:

“It is critical that the substantial issues addressed in the report are confronted before major problems arise, rather than because of them. The wide-ranging implications for the operation and therefore the credibility of the criminal justice system, and the unanimity supporting the committee’s findings, require something better than kicking the can down the road or believing that the present architecture can handle the growth and significance in the use of artificial intelligence.”

I heard a murmur of support when I was reading that, but I will continue even though it pretty much says what I will say over the next few minutes.

The “something better” includes welcoming innovation and regulating it appropriately. The issues are difficult, but the point was not to put them in the “too difficult” tray. I believe that the report answers the not unexpected concerns that we must not stifle innovation, that each police force should be free to take its own decision and that police and crime commissioners must ensure compliance with human rights.

Proposing regulation often raises hackles, but it is another way of requiring standards to be met. Standards are a good thing—in themselves and because something known to meet agreed standards is more likely to be trusted. For example, standards can ensure, to the greatest possible extent, that conscious and unconscious bias—such as racial bias in stop and search tools—is not baked in. That is to the benefit of the producer as well as others. In other words, standards support innovation.

Procurements deserve a lot of attention. A police officer procuring a product can be vulnerable to an overenthusiastic sales pitch—we heard some horror stories—or a one-sided contract. I would have loved to see a form of contract, for instance, about the ownership of data, both input and output. Does the commercial producer of the programme own it? It is a big question, which makes one wonder about data inadequacy, but I will not go there this afternoon. We were not able to get hold of a form of contract: commercial confidentiality gets in the way.

National standards would include requirements in respect of reliability, accuracy and performance in the context of their use, evaluation, validity, suitability and relevance. It is very worrying if standards are regarded as a threat.

We heard a lot about the independence of police and crime commissioners, and that PCCs and chiefs ensure compliance with human rights. I heard that as overdefensive. Of course each force should pick products to suit its local needs; there are 43 forces applying the same law. By analogy, the BSI kitemark is in common use for many products in other sectors—in other words, certification. The police could have a choice among certified products. That would not preclude them picking products to suit their own local priorities. Operationally, this would not mean that the police do not have to assess both the necessity and proportionality of each deployment.

This is all part of governance. The point was made more than once, including by government: “You can always go to court to sort things out”, but the courts’ role is to apply the law, and nothing goes to court unless someone takes it there. That needs determination, emotional energy and money. By definition, the judgment will not be a comprehensive assessment nor a systematic evaluation.

In a similar vein, the Minister said to us that Parliament is the national ethics body—to be fair, I think that was a throwaway line—but I doubt that we are qualified for that. However, Parliament has a role in establishing a national body: independent, on a statutory basis and with a budget. We think there should be a single national body. Our report lists 30 relevant bodies and programmes. That makes for very complicated governance.

There can never be a completely one-stop shop, but that does not mean that simplification is not needed. It is not surprising that there is confusion as to where to find guidance. The committee recommends a body where all relevant legislation, regulation and guidance are collated, drawing together high-level principles and practice. Primary legislation should be for general principles, with detailed regulation setting minimum standards—not so prescriptive as to stifle innovation, but recognising the need for the safe and ethical use of technologies. We recommend the use of statutory instruments, despite the procedural drawbacks with which your Lordships are familiar, as a vehicle for regulations and a basis for guidance, with scope for non-statutory guidelines.

To assess necessity and proportionality, we need transparency. A duty of candour is associated more with the health service, but we urge the Government to consider what level of candour would be appropriate to require of police forces regarding their use of new technologies.

We also recommend mandatory participation in the Government’s algorithmic transparency standard—currently, it is voluntary—and that its scope be extended to all advanced algorithms used in the application of law which has implications for individuals. This would in effect produce a register, under the aegis of the central body. I understand that the Information Commissioner’s Office and Thames Valley Police, and no doubt more, are involved with the standard, and there is clear wish to link compliance with it to processes to improve technology and to enable police to exchange information about what works and what does not. There is a wish too to link it to independent oversight.

Ensuring the ethical use of any tool is fundamental. That has to be integral to the use of the tool, as we have seen with live facial recognition and the London gangs matrix, whose review apparently led to the removal of the names of some 1,000 young black men. The West Midlands Police are leaders with their ethics committee, both in having it and in how it is used—I have been very impressed by what I have heard and seen of its operation. There are similar bodies in a few, but only a few, other forces. If we get the standards right, the tools will be better trusted, by the citizen and the police themselves. That will free up police resources.

Current legislation provides that a person shall not be subject to

“a decision based solely on automated processing, including profiling, which … significantly affects him.”

The then Home Secretary assured us that decisions about humans would always be taken by humans—a human in the loop—but clicking a button on a screen is not enough when one starts from the mindset that “the computer is always right”. We agreed with the witness who said that the better way is that the machine is in the loop of human decision-making.

Does the human understand what it and he are doing? “Explainability” is essential; I had not come across that term before, but it seems to be used a lot in the sector. It is essential for the user, the citizen affected and everyone else. If the police officer does not understand the technology, how can he know if he—or it—has made a mistake? A critical approach in the best sense is needed.

The Sunday Times recently reported on new AI which will detect sex pests and thugs on trains who intend to assault rail passengers. It said:

“When a woman is sitting on her own in a carriage with empty seats, it could also assess whether she feels threatened when a man comes to sit down next to her or whether she welcomes his presence.”


There is no hint there might be some fallibility in all this. With all of this, noble Lords will not be surprised that we identified a lot of training needs.

We received the Home Office response to our report in the summer. I wrote on behalf of the committee to the then Home Secretary that we were “disheartened”—the best term I felt I could use courteously—by the

“reaction to what we hoped would be understood as constructive conclusions and recommendations. These are very much in line with the recommendations of other recently published work”.

Indeed, a workshop discussing the report last week at the Alan Turing Institute bore this out. The response read to us as more satisfied with the current position than was consonant with the evidence we had used. I will not quote from the Government’s response as I am optimistic that the Minister today will be able to indicate an understanding of our conclusions and an enthusiasm to progress our recommendations. I beg to move.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, there are more recommendations and conclusions in our report which any of us could have spoken to today, but noble Lords have covered a great deal of ground and I thank them all.

Our thanks go to the staff who supported this inquiry: Sam Kenny, our then clerk, and Achille Versaevel, our policy analyst, who, in truth were the authors; Amanda McGrath, who kept everything in order including the members; Aneela Mahmood, who got us coverage in an astonishing number of media outlets; David Shiels, our present clerk; and Marion Oswald, our enormously knowledgeable specialist adviser, who seems to know everyone. Of course, thanks also go to the people who gave us such powerful evidence. I thank the Alan Turing Institute, which hosted last week’s workshop, attracting contributors with such expertise, who I wish were sitting behind me, passing me notes of critique of what we have just heard. That workshop felt like an important validation of our work. My thanks go to all members of the committee, with whom I thoroughly enjoy working. None of their contributions is small.

We were drawn to the topic because of the lack of a legal framework, the rule of law and the potential for injustice—principles which must continue to apply. The speeches today have confirmed these and that the committee appreciates the use of AI. We have not been dismissive of it.

I thought that the noble Lord, Lord Hunt, might refer to the thalidomide case. It was mentioned at the workshop, where the point was made that it is essential to get the tests of a product right, otherwise compliance with the test is used as the defence to a claim.

I have been subjected to a type of AI at the border, where I could get through only when I took off my earrings, because I had not been wearing the same earrings when the passport photo was taken. That is such a minor example, but I felt quite rejected.

I have to say that I thought my noble friend Lord Paddick was going to say that the technology let him range freely through his twin brother’s bank because he thought he was his twin brother.

I do not think that the noble and learned Lord, Lord Hope, should begin to be apologetic about having no technical expertise. In a way, that is the point of our report. The judiciary was very much among those we regarded as affected by the use of AI.

The pace of development was referred to; it is enormous. The issues will not go away, which makes it all the more important that we should not be thinking about shutting the stable door after the horse has bolted or letting the horse bolt.

I thank the Minister for his response. It is not easy to come to this when many of us have lived with it for a long time. To sum up his response, I think the Government agree with our diagnosis, but not what we propose as the cure. We have to make transparency happen. He says it is not optional, but how do we do that, for instance?

There was a good deal of reference in his response to the public’s consenting, policing needing consent and the Peelian principles, but he then listed a number of institutions, which, frankly, confirmed our point about institutional confusion. On ethics and his point that a statutory body could override a democracy, that is not how any of the ethics organisations approach it. It is about closing the stable too late if one addresses specific technology as it is needed.

A commitment to the spirit of the report gets us only so far; it does not leave the Wild West way behind in our rear-view mirror. We will indeed come back to this, maybe when we get the new data protection Bill. This is not an academic issue to be left in a pigeonhole unconnected with issues current in Parliament—I need only say: the Public Order Bill.

Motion agreed.

Public Order Bill

Baroness Hamwee Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Lord Shinkwin (Con)]

My Lords, it is a pleasure to follow my noble friend and to be educated by him.

I speak in support of the amendment in the name of my noble friend Lord Farmer and those listed on the Marshalled List. I should reiterate at the outset, lest anyone be in any doubt, that I do not take a position on abortion per se. However, as a disabled person I take a position on equality and, I am afraid to say, absolutely object to human beings diagnosed with my condition—brittle bones—being denied their equal right to grow up to be strong women and men on account of their diagnosis. That those who supposedly champion equality can reconcile such a claim with such lethal disability discrimination is something I will never understand.

My reason for speaking in support of Amendment 98 is not dissimilar. For me, as a disabled person in particular, Clause 9 simply does not make any sense. It is perhaps worth remembering that Christians were prepared to be torn limb from limb by lions in defence of their faith, so the idea that some will not see this as an opportunity to take a stand and go to prison for their beliefs, and to bear witness to freedom of conscience, as other noble Lords have mentioned, strikes me as completely unreal. For me to pretend that this is not an inevitable outcome of Clause 9 would be the height of naivety; of course they will do so.

For me, the question is twofold. First, as other noble Lords have touched on, is this really what we want? Do we really want to put the state in the wholly invidious position of locking people up for exercising their freedom of conscience when their only crime would be to bear witness to the serious belief that two hearts beating equates to two lives, interdependent and interconnected but no less individual for that? Since when has that been a crime? I thought it was a medical fact that a beating heart was a giveaway sign of a live human being, and the absence of a human heartbeat, conversely, a clear indication of death. I suggest that the state does not want to go anywhere near Clause 9 and would be much better off conducting a review, as set out in Amendment 98.

Secondly, there is another party in this debate which I suggest has no interest in this clause becoming law: those who support abortion. After all, why risk making martyrs of one’s opponents? We should be in no doubt that, if passed into law, this clause will deserve to be known as the “own goal clause”, because that is precisely what would result: a spectacular own goal. I spent all my career before I came to your Lordships’ House campaigning, much of it in the charity sector, and I would never in a million years have advised any of the organisations for which I worked to pursue such a counterintuitive, counterproductive strategy as Clause 9 encapsulates. No matter how passionately one believes in the clause, giving your opponents both the moral high ground and the oxygen of publicity—because the media will inevitably cover the story of people going to prison for their beliefs—simply does not make sense. It is surely what is known as a lose-lose situation. I wholeheartedly support this pragmatic, common-sense amendment as a way out of the minefield created by Clause 9.

[Baroness Hamwee (LD)]

My Lords, I have Amendment 93A in this group. In the spirit of scrutiny, I wondered what “an abortion clinic” and “abortion services” actually meant. To me they include professional counselling which puts both sides of an issue and all the options. I say that because it seems as if we have got into a rather binary state where this is just about the abortion procedure.

I am convinced that there is a serious problem for women attending some clinics who are seeking an abortion. I am also aware of how activities can move around geographically. I understand that there is not a problem now with the activities that we have been talking about outside places where abortions do not take place but counselling does. However, as the noble Baroness, Lady Sugg, said, activities have moved to new sites; she mentioned one that has been affected for the first time in many years. My amendment is to raise that issue, bothered that what is a problem now could be displaced and become a problem elsewhere. Obviously it is probing the position, but as we are seeking to tackle this, we should do so comprehensively.

[Viscount Hailsham (Con)]

My Lords, I am in general opposed to those of the amendments which are designed to reduce the impact of Clause 9. As I said at Second Reading, I support the concept of buffer zones around abortion clinics. Of course I accept the two propositions eloquently expressed by the noble Baroness, Lady Fox: first, that the right to demonstrate and freely express views is of great importance in a democratic society; and secondly, that the provisions of Clause 9, as many of your Lordships have articulated, impose serious restrictions on such abilities. But again, as I said at Second Reading, these rights are not absolute. They have to be balanced with the rights of others, and the correct balance is often not easy to identify and can be the subject of legitimate disagreement—it usually is. However, in the context of abortion clinics, Clause 9 gets the balance about right.

I will identify occasions where the balance falls the other way: in favour of the demonstrator. Some of your Lordships will think that the examples are trivial. I have often hosted meets for our local hunts, both before the ban and after it; after the ban, our local hunt acts fully within the law. The saboteurs come and demonstrate, and they are often very tiresome. However, provided they operate within the law, I would not for one moment seek to ban them. There is another example. Pacifists sometimes demonstrate outside military recruitment offices. I disagree with that and think it is wrong in principle, but again it would never occur to me to seek to prohibit that activity.

The motives of those demonstrators and those who demonstrate outside abortion clinics have something in common. It is not that they are just expressing their own opinions, which of course they are absolutely entitled to do, but they are trying to induce a change of attitude on the part of others. It is when I come to those who protest outside abortion clinics that I am conscious of why the balance tips. Those who attend abortion clinics have come to a very painful and serious decision, and often an anguished one. I think it is very wrong to subject them to what is often intemperate bullying of an extremely nasty kind.

Public Order Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I have the greatest respect for the noble Lord, Lord Carlile of Berriew, and completely agree with him that the Government have not made the case for any of the provisions in the Bill.

I agree with many of the points that other noble Lords have already made in this debate on all sides of the House. The Government should take note of the strength of feeling, particularly among the influential Members of the Cross Benches, who are opposing the provisions in the Bill and are likely to persuade their colleagues to vote with them against it on Report if we do not have sufficient clarity and answers to the proper questions that many Members of the House have put to the Ministers but to which they have not received answers today.

I will not repeat what I have already said, particularly in relation to the first group. I am grateful to Liberty for its briefing on the Bill. Based on that briefing, I say that case law confirms that we have a right to choose how we protest, and the diversity of protest tactics throughout history demonstrates the deeply interconnected nature of free expression, creativity and dissent. The offence of locking on under Clause 1 not only defies those principles but criminalises an innumerable list of activities—not only what we would typically understand as lock-on protest, where people lock themselves to one another via a lock-on device or chain themselves to Parliament, but any activities involving people attaching themselves to other people or to an object or land, or attaching objects to other objects and land.

The Government claim that the wording of this offence is sufficiently precise to be foreseeable and that the provisions are in accordance with the law. As noble Lords will have noted from discussions on previous groups, I disagree. I am concerned that the offence under Clause 1 risks disproportionately interfering with individuals’ rights under Articles 10 and 11 of the European Convention on Human Rights.

As the noble Baroness, Lady Jones of Moulsecoomb, said on a previous group, the broad and vague nature of “attach”, which is not defined in the Bill, means that this offence could catch people engaged in activities such as linking arms with one another, or locking their wheelchairs to traffic lights. The recurring themes throughout our debates today have been the risk of disproportionality and the risk of uncertainty.

As I have stated before, this proposal is not supported by the police. When consulted on a similar proposal by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, police respondents said:

“most interviewees [junior police officers] did not wish to criminalise protest actions through the creation of a specific offence concerning locking-on.”

Even the police are against it.

Turning to the new offence of being equipped for locking on, I reiterate my concerns that the vague and potentially unlimited list of activities covered by this offence are exacerbated by the ambiguity of the drafting of Clause 2. I note that the object in the offence of locking on does not have to be related to protest at all. It must simply be established that a person intended it to be used in a certain way. Nor does the object have to be used by the person who had it in their possession. The offence refers to

“the commission by any person of an offence”.

The phrase

“in the course of or in connection with”

casts an extremely wide net as to what activities might be criminalised under the offence. So wide is the net cast by this clause that effectively any person walking around with a bike lock, a packet of glue, a roll of tape or any number of other everyday objects could be at risk of being found to have committed this offence. As we have heard, the possibilities are endless. It is also significant that, unlike the substantive offence of locking on, there is no reasonable excuse defence in the wording of this offence, which means that individuals will find it even more difficult to challenge.

The Just Stop Oil movement has called off its protests because too many of its members are behind bars under existing legislation—particularly the favourite of the noble Lord, Lord Carlile of Berriew, Section 79 of the Police, Crime, Sentencing and Courts Act 2022. If current legislation has effectively put a stop to the disruptive Just Stop Oil protests, why on earth do we need this Bill?

[Baroness Hamwee (LD)]

My Lords, as we now have both Ministers on the Front Bench, I will repeat the point I made earlier about explanations being made in the Chamber. I will add a sentence to what I said before about explanations being given in writing, by letters to individual Members of the House, generally copied to other interested Members: they kind of float though and one loses a grip on how much has been answered. Explanations that are part of the justification for a piece of legislation are not easily available to those who need to know them. We have a parliamentary website with a webpage for each piece of legislation. That is where people will go to see what the debate has been on particular amendments and how amendments have changed as a Bill has progressed. That is where they should be able to see the answers that Ministers were not able to give at the time when a matter was raised. Either through Hansard or some other mechanism, these answers should be lodged on the public record, and they have to be given in the Chamber in order to progress. This is immensely important, and I am making the point here because it is on the point of principle that other noble Lords have spoken about on this group.

Public Order Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I will come back to the noble Lord on that.

[Baroness Hamwee (LD)]

If the Minister is going to come back to my noble friend, could he do so in this Chamber? That question is absolutely fundamental to the discussion on the Bill. To have the answer in writing, available in the Library if one goes to look for it, is in our view not adequate.

[Lord Paddick (LD)]

This is Committee, so we are allowed this sort of debate. I want to reinforce what the noble Lord, Lord Carlile, said about Section 78 of the Police, Crime, Sentencing and Courts Act. It says:

“A person commits an offence if … the person … does an act, or … omits to do an act that they are required to do by any enactment or rule of law … the person’s act or omission … obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and … the person intends that their act or omission will have a consequence mentioned in paragraph (b)”.


That covers, completely and perfectly, the people on the gantry of the QEII Bridge. The maximum sentence for that activity is up to 10 years in prison. None of the provisions in this Bill goes anywhere near 10 years in prison. Why do the Government not rely on existing legislation rather than creating all these other offences?

Western Jet Foil and Manston Asylum Processing Centres

Baroness Hamwee Excerpts

Tuesday 1st November 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

I absolutely agree with the noble Lord.

[Baroness Hamwee (LD)]

My Lords, we have heard about the conditions suffered by people held in these establishments. I cannot help thinking that life must be very difficult for the staff who work there. I imagine that all their instincts are to do their very best by those who are detained or who are there under any other category. I would be grateful if the Minister could tell the House what support is being given to staff to cope with this situation.

Quite separately, in his response to the question about the appeal rate, making the point that issues come up on appeal that had not been considered in the initial application, would he not agree that that may be indicative of a failure of the casework, a lack of curiosity and a failure to raise the right questions?

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for the question. I entirely share her concern for the staff at Manston and Western Jet Foil who have to work in difficult conditions. I have made a point of ensuring that officials are fully alive to these issues. The noble Lord, Lord Coaker, suggested that the Home Secretary had yet to visit Manston. As I understand it, she is going to visit later this week, and I can reassure the House that I am visiting next week. I have absolutely no doubt that, on all of those visits, the present concerns of the staff will be taken into account.

As I understood it, the noble Baroness’s question in relation to appeals effectively asked whether this showed a failure by decision-makers to take into account matters which had come to light later. That is not routinely the case. Usually what happens is that a fresh claim is advanced by the applicant and/or there is a fresh set of facts; for example, the development of a subsequent relationship.

Public Order Bill

Baroness Hamwee Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, who is this Bill addressed to? I know how I would answer that question, and my noble friend Lord Paddick has already referred to culture wars. I have no doubt that the Government have identified the audience to which they want to appeal, but that audience is not the potential offenders. If the Government are seeking to deter offenders, is this really the way to go about it? Is it not obvious that many lockers-on and serious disruptors seek publicity? Well, they will get it. Portraying oneself as a victim, even as a martyr, is a well-known tactic. Increased media coverage consolidates this; it is a big bonus.

Will these measures be divisive? Will they confirm some people’s views that the measures are an unnecessary sledgehammer; in other words, will the measures mean increased support for the protests and provoke more extreme forms of action? The noble and learned Lord, Lord Hope of Craighead, mentioned unintended consequences.

Some tactics used by some protesters do not appeal to me. I have been inconvenienced and had an immediate reaction—“This is simply not on”—but I have to remember that we are in a country where views can be made known, by the protesters in question and by me, by an accident of history. On one side of my family, I am only three generations away from being geographically in a country where my family would have experienced great brutality—I probably would not have been born—and, on the other, only two generations away from a regime that still exists now. These are extreme examples, but noble Lords will be well aware of contemporary examples too. It is an accident of history for us all that we are in the UK, and how precious—a word that has been used but deserves repetition—it is to be able to make our views known. That was not something I appreciated when growing up, although I went to the same school as the Pankhurst sisters. Suffragettes have been mentioned, and I thought about them because there is such a whiff of cat and mouse in the circularity of some of the measures in the Bill.

I support what has been said and will be said about these precious freedoms, and oppose the Bill on the grounds that have been well described—including that the statute book is hardly silent on the actions the Bill covers—but also because I just do not think it will achieve the objective of deterrence.

Rwanda Asylum Partnership: Removal of Unaccompanied Children

Baroness Hamwee Excerpts

Thursday 21st July 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, what must it be like to be forced to leave not just your country but your home and to know little about where you are trying to head for, though you have an idealised version in your head? It is a journey full of hazards, because you have no means of travelling direct by a safe, regular route—such routes may not exist—and you are alone. What must it be like to find you are treated with suspicion? They say you are an adult, and you may look it after the experiences you have been through; inside you feel very young indeed and you are a child.

What would it be like then to be moved on to Rwanda, where, undoubtedly, criminal gangs will be operating to smuggle refugees who find themselves there to another country? Crucially, what will it be like to reach the UK, not having—and never having had— convenient proof of age, have difficulty being understood and be given a notice of intent about being sent to Rwanda?

What discussions have the Government had with the Rwandan Government about unaccompanied children? What assurances have they been given about the treatment of children and young people found, in fact, to be children? What have the Government advised their liaison officer in our diplomatic mission in Kigali or the monitoring committee? Those are both mentioned in the memorandum of understanding. Saying that children will not be sent there is not adequate when there is even the slightest doubt whether the procedures will ensure that no child will be treated as an adult.

It is largely NGOs which provide support in challenging decisions for those they can. Their resources are limited. I realise that caseworkers are stretched, and Home Office guidance may be difficult to apply, but it seems very wrong that society has to be so reliant on the third sector.

Members of the House received powerful representations about the age assessment provisions of the then Nationality and Borders Bill, and we had a very helpful, but necessarily limited, briefing from the noble Baroness, Lady Black of Strome, the interim chair of the interim age assessment committee—I understand that everyone is still interim there. However, the British Dental Association conversely believes that the use of dental and other X-rays to assess age is a fait accompli. It is concerned that dental age checks—if “checks” is the right term—are already taking place. It seems a long way from what we were told at the time of the Bill about safeguarding and triangulating information from different sources as a safety net. I found that very reassuring at the time; I hope not to be disillusioned, but I am on the way there.

Our Justice and Home Affairs Committee, which I am lucky enough to chair, heard last week from an academic who said there was

“not really any process for the best interest of unaccompanied refugee children to be properly weighted in any assessment … It is an impossible state of exception”—

an exception to the Convention on the Rights of the Child. He added:

“We have no discussion about unaccompanied refugee children’s development.”


Another witness said that family life and a child’s best interests are often portrayed

“as private matters, versus immigration control being in the public interest.”

She referred to the noble and learned Baroness, Lady Hale, in the Supreme Court, putting it that

“there is actually a strong public interest in”

the upbringing of, and opportunities for, children.

I thank the noble Baroness, Lady Lister, for ensuring that the House debates these issues; I wish it were not necessary.

Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022

Baroness Hamwee Excerpts

Tuesday 7th June 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have two sentences. My noble friends referred to examples of problems encountered by the people affected. I am sure other noble Lords will have thought, as I did, that if there are problems at the border and if airlines cannot cope—and it is their bread and butter to deal with status—is it any surprise that employers, landlords and so on have difficulties too?

[Lord Paddick (LD)]

My Lords, the noble Earl, Lord Clancarty, comprehensively set out the concerns with this statutory instrument, powerfully reinforced by my noble friends Lord Oates and Lady Ludford in particular. On a positive note, the instrument adds categories of people who can rent housing, but I am afraid that is about it.

There are two revised codes of practice: one on civil penalties and how to avoid them if you allow someone to work who is not entitled to work, for example, and another on how to avoid unlawful discrimination—for example, between British citizens and someone who is not a British citizen but is allowed to work in the UK.

The codes of practice on non-discrimination say that employers should do a right-to-work check on every applicant, British citizen or not, so as to treat everyone the same, but the checks are not the same. British and Irish citizens can produce a passport, current or expired. Would the Minister comment on whether an expired passport issued when the holder was six months old would be acceptable as a physical document for an employer? EU citizens who have applied for settled status can produce a document issued by the Home Office showing that they have applied, in which case they are entitled to work, but the employer must also have a positive verification notice from the Home Office employer checking service.

As other noble Lords have said, for foreign nationals who hold a biometric residence card, biometric residence permit or a frontier worker permit, even these documents can no longer be used as evidence on their own of their right to work without using the Home Office online system in addition. As other noble Lords have said, that will now include Ukrainian refugees. EU citizens who have settled status are even further discriminated against as they have no physical proof that they have a right to work, and the employer has to rely entirely on what is a not entirely reliable Home Office online system.

Despite the codes of practice to help employers avoid discrimination, the codes of practice on how to avoid civil or criminal penalties for employing someone not entitled to work are themselves discriminatory, in that British and Irish workers can be employed on the basis of a physical document, current or expired, but everyone else, even if they have physical proof, has to get it checked by the Home Office online system. How many employers, particularly those employing casual labour or temporary staff, will take the quick and easy route and employ a British or Irish citizen, based potentially on an expired passport, rather than a foreign worker?

As my noble friend Lord Oates said, the Windrush Lessons Learned Review emphasised the need for the Home Office to listen to the users of the system. Those who have to rely on digital-only proof of their rights have consistently said that they want physical proof. The Government have not learned the lessons of Windrush. We support this regret Motion and will support the noble Earl if he decides to divide the House.

HM Passport Office: Backlogs

Baroness Hamwee Excerpts

Thursday 12th May 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

As always, my noble friend asks a very good question. I do not know the answer to it. I know that we have been engaging with the contractor and outlining that what is happening at the moment is utterly unacceptable, and I know that steps are being taken to rectify that.

[Baroness Hamwee (LD)]

My Lords, I hope that commercial confidentiality will not be cited as a reason for not replying to the question asked by the noble Lord, Lord Young. Following my noble friend’s question, have the Government had any discussions with the travel industry to ensure that passengers who are unaware of either these problems or the need to have a period remaining on their passport are alerted to the issue?

[Baroness Williams of Trafford (Con)]

In relation to this issue, I know that HMPO has sent nearly 5 million text messages to UK customers who hold an expired or soon-to-expire passport to advise them to allow up to 10 weeks when next applying—so communications are going out from our side. I do not know about other countries.

Queen’s Speech

Baroness Hamwee Excerpts

Thursday 12th May 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the noble Baroness reminds us how much we owe to those who have challenged the system.

A new legislative programme does not mean that the last programme is done and dusted. Even if secondary legislation is not required, guidance and codes of practice will be, because how things are done matters. The Nationality and Borders Act certainly requires them. The relevant sectors have experience in every part of policy-making, and the Government should take advantage of them and involve them. I got the very clear impression that the sector was not consulted appropriately on the part of that Act relating to modern slavery—which, sadly, represented a very retrograde step—but advances working with the sector can be made without legislation.

Earlier this year, the then anti-slavery commissioner published a report on slavery and trafficking risk orders and prevention orders. Importantly, these do not require the support of victims. We know that victims can find it impossible to give evidence in a prosecution because of their experiences, but who is checking that orders are complied with? Monitoring as well as evaluation is necessary if measures are to be used effectively; I mention that as one example of what could be many.

Of course, the Immigration Rules are, as you might say, a law unto themselves. Another bunch came into effect yesterday. We are told—I quote from the Minister’s letter, for which I thank her—that it is “necessary and proportionate” in connection with the UK-Rwanda partnership to ensure that they are applied. The letter says:

“Given the anticipated deterrent effect of the Partnership on people smuggling, this will help to quickly reduce the number of dangerous journeys and save lives.”


We on these Benches fear that the Government are actually creating more opportunities for people smuggling and trafficking. They are enlarging the smugglers’ business model by adding the new market of asylum seekers removed from the UK to Rwanda and desperate to get away from there.

The place of new technology in our lives will feature in this Session. I am lucky enough to chair our Justice and Home Affairs Select Committee, two of whose members are in the Chamber at the moment. It is a splendid committee. Our first report was published in March. Though we are yet to receive the Government’s response, the issues are so current and relevant that they are worth mentioning.

Our inquiry was on the use of new technologies in the justice system, particularly policing. Facial recognition is the best known but other technology is in use and development is fast. There are huge benefits, such as preventing crime, increasing efficiency and generating new insights that feed into the criminal justice system. However, there are a lot of “buts”. In the words of one witness,

“there has been so much excitement about the promise of big data that we have charged in and used tools just because we can.”

Another said that

“we should have a massive dose of humility about what the tools can tell us”.

Public and government awareness have not kept up in this Wild West. Each police force can commission and purchase tools from companies eager to get in on the market—some with dubious selling practices. There is no mandatory training in this sellers’ market and buyers know little about what they are buying because sellers insist on commercial confidentiality. Our committee calls for transparency through a mandatory register of algorithms used in relevant tools, as well as for a national regulatory body to set standards. We say yes to innovation with safeguards.

Localism in policing is really important but it is expecting too much for every force and police chief to be a well-informed and critical purchaser. Therefore, we say: certify, kitemark tools, and then forces can make reliable purchases. Clear principles with a legislative basis would allow regulation to support practice.

Criminal justice is high risk. Predictive policing sounds attractive but if the stats tell you that there is a lot of crime in a particular part of a city, you put extra police there and focus on it. You get more arrests. The stats go up so more resources are applied and so on. It takes only a moment to think of inequalities, bias, the rule of law and fair trials. How would it feel to be convicted and imprisoned on the basis of evidence that you did not understand and could not challenge?

We should use technology; we should not defer to it.