Essex: Major Incident

Debate between Baroness Hamwee and Lord Rosser

Monday 28th October 2019 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I thank the Minister for repeating the Statement made earlier in the House of Commons. I endorse what it said about the professionalism of our overstretched and understaffed emergency services. It is almost too awful to imagine the hell that the 39 people who died must have been through or the grief that families the other side of the world and fearing the worst are now experiencing. Our thoughts are very much with them.

The callous, criminal people traffickers must be caught and brought to justice. I have two points to make. First, can the Government give a categorical assurance that departure from the EU will not lead to any weakening of our links with or our partnership and co-operation arrangements with the EU and any of its agencies which we now use and work with to combat people trafficking? Secondly, why do we apparently not have control of our borders at our recognised ports against illegal entry, whether trafficked or otherwise, as the Government have previously maintained is the case? How was a container with such a large number of people inside able to get into this country, apparently on a recognised shipping route through a recognised British port of entry, without being detected and stopped? Surely one way of putting pressure on the traffickers using recognised shipping routes would be the near certainty of detection. I note that the Government are now—belatedly, it seems—increasing the stretched Border Force presence in Purfleet. How many people do the Government think may have been trafficked into this country through a recognised British port of entry in the last 12 months for which figures are available, and how many people have been prevented from entering this country at the port of entry through which they were being trafficked over the same 12-month period?

[Baroness Hamwee (LD)]

My Lords, from these Benches, I, too, thank the Minister. This is a tragedy for so many people. In putting on record our thanks to the emergency services, we need to recognise how difficult it is for them to respond to such a situation. I trust that this—I do not like to use the word “incident”, because it seems to trivialise it—will not be a catalyst for statements about having tougher immigration arrangements. We want to see fair, compassionate and effective immigration rules.

The Independent Anti-slavery Commissioner—I acknowledge that we do not know that these people were trafficked—has recently published her strategy. Her priorities are:

“Focusing on prevention, working with the private sector, encouraging the role of the public sector, raising public awareness”—


sadly, that has certainly been done—and “preventing victimisation”. Can the Minister assure the House that all her priorities will better than adequately funded?

My other point takes up in a little more detail that made by the noble Lord, Lord Rosser. The political declaration regarding our leaving the EU sets out a “framework” for our future relationship and deals with issues that are not in the withdrawal agreement, one of which is security. They are dealt with in the political declaration in language such as:

“The Parties should consider further arrangements …. The Parties … will … work together to identify the terms for … cooperation via Europol and Eurojust … The Parties should consider further arrangements appropriate to the United Kingdom’s future status for practical cooperation … with the view to delivering capabilities that, in as far as is technically and legally possible, and considered necessary and in both Parties’ interests, approximate those enabled by relevant Union mechanisms”.


I am sure noble Lords will understand my emphasis on the rather conditional wording. Do the Government recognise that replicating all our current law enforcement arrangements without any hiatus, which I have heard suggested, is of immense importance, and that will be helped if we make it clear that we regard the EU and its member states as our friends, colleagues and partners?

Places of Worship: Protective Security Funding

Debate between Baroness Hamwee and Lord Rosser

Tuesday 7th May 2019 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement made in the Commons. Is the money announced in the Statement new funding or funding reallocated from another budget heading? The Statement deals with a serious issue, in the light not only of the tragic and sickening events elsewhere in the world but of events on our own doorstep, with the increasing number of attacks causing damage to synagogues, temples, mosques, churches and other places of worship, with the fear that, before long, those attacks could be directed more at worshippers than at just the buildings themselves.

It is a sorry state of affairs when people of different faiths do not always feel safe simply practising their religion. The language of hate that seems increasingly to be used only ramps up the likelihood of such attacks. What is even more appalling is that that language is used by some who hold or seek to hold office in our democratic structures and institutions, and by so doing give that language an air of respectability.

Places of worship should be open to the public as havens for quiet reflection, contemplation, prayer and worship, and as places where an understanding hearing and help may be found. But it is increasingly difficult to keep places of worship open for most of the day because of the threat of attacks in one form or another—increasingly difficult because people, often volunteers, are needed inside to ensure that nothing untoward occurs, and, even then, a single person on their own may feel too vulnerable to want to carry out that role even when they have the time.

We support making more money available for protective security measures as a means of seeking to reduce fear and apprehension for those practising their faith in places of worship. But this cannot be regarded as a solution to the problem. We need, beyond the increased security measures set out in the Statement, resources directed at those who preach or practise hatred or encourage others to do so, and in particular also at those who might find such messages seductive or compelling. That requires further resources not simply for our seriously overstretched police but for community organisations and local government and our schools, for example, which have also been denuded to the bone to the detriment of the extent and level of what they can achieve in this field.

The Government also need to press ahead with a review of the Prevent strategy, identifying and concentrating on best practice and making clear to all that it is directed at reducing and stopping hatred and extremism across the board and not by any particular group within our diverse community.

I hope that when she responds the Minister can provide reassurance—which was not spelled out in the Statement, which contained fewer than 30 words on the involvement of local communities and the Prevent strategy—that what the Government have announced today is but one aspect, albeit important, of a much wider, properly resourced programme to address the increasing trend of hatred and hostility in what appears to be becoming our more fractured society instead of a diverse society that draws its strength, unity and values from that diversity.

[Baroness Hamwee (LD)]

My Lords, I, too, thank the Minister for repeating the Statement. She repeated the Home Secretary’s four specific items. I thought that the third, which was,

“consulting religious communities on what more can and should be done to help them”,

might have been the first one in the list. The amounts of money which are mentioned are welcome, but they are very small when one compares them to the cost to the community of an attack—any sort of attack, but particularly a major attack. The aim must be to eliminate religious hatred.

The focus of this Statement—I do not think it pretends to be otherwise—seems to be on relatively low-level physical security. I believe that the maximum grant, if that is the right term, that has been made is £56,000. Will the Minister tell the House the average, more or less, level of grant that has been given recently—it will be 80% of the total cost of the work proposed—and what can be achieved by that sort of money? I do not know how much CCTV costs; that may be the best of the physical arrangements.

I have a couple of questions for the Minister about the application form on the Home Office website. There are questions about the building, asking whether:

“The exterior and interior … is in a good state of repair and look well maintained”,


whether there is “natural surveillance”—I am not sure what that means—and whether it is in a conservation area. What is the relevance of some of these questions? There are questions about security measures, such as whether personal injury or assault has been experienced in the past 12 months and whether the building is,

“visible and identifiable as a place of worship? e.g. Symbolism/description on exterior of building, building dominate town or hidden away etc”.

My reaction on reading that is that we should be loud and proud about faiths which are practised. Again, will the Minister tell the House the purpose of such questions?

Five million pounds is proposed over three years for training. I appreciate that the Community Security Trust is outside this scheme, but I mention it because I was struck by an email circulated to members of my synagogue asking for volunteers to come forward for specific levels of training, and I realised how much these groups depend on volunteers. Is the Home Office satisfied that all communities that need training will be able to access this funding?

Like the noble Lord, Lord Rosser, I want to ask about the Prevent programme, which is mentioned. What progress is there with the review that is to be undertaken? Will the Minister assure the House that it will be independent and that community organisations and civil society, including of course faith organisations and faith communities, will be given every opportunity to contribute evidence?

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Rosser

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have some small questions for the Minister, and I hope she has been given notice of them in her brief—I contacted the Bill team yesterday. I think she has largely answered one of them, but I will ask it anyway. In her Amendment 73 and elsewhere, there is provision for a cut-off to the period for representations. I understand the need for that. Is there a timetable for the rest of the process? This is likely to be significant to the passenger, the affected party.

Secondly, in Amendment 76 and other amendments—the Minister has just mentioned this—what is an example of what is not “reasonably practicable”? She mentioned the possible difficulty of getting in touch with the individual. Again, I understand that. Does the term “reasonably practicable” go to that sort of thing? In other words, is it on the part of the person trying to get in touch, or is it looked at from the point of view of the passenger? Destruction of an article or conditions as to the use of the article are likely to be significant in this situation.

Thirdly, I have a similar question about the urgency condition in Amendment 77. Who assesses what is urgent? Is it the Home Office or the commissioner, and is it urgency in the eyes of the passenger? If the Minister can help to flesh out some of those queries, I will be grateful.

[Lord Rosser (Lab)]

Perhaps I may add one further question to those raised by the noble Baroness, Lady Hamwee. It relates to the urgency procedure. The noble Baroness has already asked who makes the decision on what is or is not urgent, but can we also have some feel, presumably based on the experience of the agencies concerned, of how frequently they expect to use this procedure?

[Baroness Williams of Trafford]

My Lords, the kind of situation in which we can expect the urgency provisions to be used possibly goes to the question asked by the noble Lord, Lord Rosser, about how frequently they are used. It is difficult for me to talk about the average frequency in any week, year or other given timescale, but clearly there is a spike nature to some of these events. Therefore, I hope that the noble Lord will accept that I cannot give a definitive answer to his question. However, basically the provisions will be used to disrupt a live threat—for example, where a hostile agent tries to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In the aftermath of something like the Salisbury event, Schedule 3 powers would provide the police with additional tools to stop and question persons with potential links to a hostile state or its actors who might have knowledge of or involvement in the attack. In such a scenario, it would be critical to analyse their devices and material at speed in order to understand the extent to which they were engaged in hostile activity.

The noble Baroness, Lady Hamwee, talked about the timeframe. Obviously, the urgency procedures would be used only where there was an immediate risk of death or significant injury or of a hostile act being carried out. In such a case, the police must be able to act with immediate effect. However, on the question of whether we could have done it the other way round, with a prior authorisation procedure being put in place, the answer is that that would still take some days. I hope that that answers the question.

The point was made that the timeframe for the urgency process—that is, within 24 hours—makes it very difficult to make representations to the commissioner. I was asked whether that is enough time or whether it should be longer. The timescales for the urgency process aim to strike a balance between giving the property owner enough time to make representations and ensure that the police are not able to use the property without judicial authorisation with the decision having to be taken by the commissioner within three days, and, by the same token, conceding that it is likely the property owner will want a decision to be taken as quickly as possible to prevent the police using their property without a decision by the commissioner. The draft Schedule 3 code of practice, which is available online, makes it clear that the examining officer must provide a notice that will explain to the property owner that they are invited to make representations to the commissioner, including contact details and the associated timescales.

Did the noble Baroness ask me what happens if the property owner cannot be contacted?

--- Later in debate ---

[Lord Rosser]

As has been said on more than one occasion, Schedule 3 deals with border security and the power to stop, question and detain and states:

“An examining officer may question a person for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.


It goes on to say:

“An examining officer may exercise the powers … whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.


There does not need to be reasonable suspicion. That is a very considerable power and safeguards are needed to ensure that it is used in a necessary and proportionate manner. Amendment 67ZA seeks to have such a safeguard in relation to this power by providing that the Investigatory Powers Commissioner,

“must be informed when a person is stopped”,

and,

“make an annual report on the use of”,

this power.

In the schedule, there is provision for the Investigatory Powers Commissioner to keep under review the operation of the many provisions in the schedule and make an annual report to the Secretary of State about the outcome of the review. In the Commons, the Government were asked whether in carrying out the review process and producing the report—under Part 6 of Schedule 3 —the commissioner would be aware of every stop that had taken place. Our amendment provides that the commissioner must be informed of such stops. The initial reply from the Minister in the Commons was “Yes”, but he then went on to say:

“Although the commissioner will not be informed every time someone is stopped, the numbers will all be recorded, and he will have the power … to investigate those stops while doing the review”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 5/7/18; col. 190.]


That appears to be a qualification of the initial answer of yes. The information that the commissioner will get is the numbers—perhaps total numbers—but that may apparently be some time after individuals have been stopped.

This amendment provides that the commissioner must be informed when a person is stopped. Will the Investigatory Powers Commissioner be informed when people are stopped, questioned and detained or only given numbers at a frequency that is unstated? Will the commissioner be told why people have been stopped, questioned and detained, or will he or she have to inquire about that when given overall numbers at some later stage?

As I understand it, the Government’s argument appears to have been that the Terrorism Act 2000 powers on counterterrorism have been used to stop, question and detain people where there is an issue of potential hostile activity, and that the Bill simply regularises what is already happening. If I have understood the Government’s argument, does that mean that they expect no increase in the number of people being stopped, questioned and detained at our borders, particularly at the sensitive border in Ireland between north and south? One could put that interpretation on it, if it is correct that the Government are saying that the Bill simply regularises something that has been happening under the powers in the Terrorism Act 2000. But if not, and the Government expect an increase in the numbers of people being stopped as a result of this provision, on what scale is that increase expected to be? I beg to move.

[Baroness Hamwee]

My Lords, I was not clear whether the noble Lord, Lord Rosser, was using this amendment to seek more information, but we wonder about the operational practicality of its first paragraph. It suggests that if the commissioner is informed of a particular stop, they would have some power or role to respond. More important are the points implicit in what the noble Lord said about keeping records or data. In another context, the noble Lord, Lord Anderson, used the term “meticulous” about keeping records in Northern Ireland, and reference was made to using them as the basis for review of practice. That is very important and although we have hesitations about the amendment’s first paragraph, what has prompted it is important.

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Rosser

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, again on behalf of the Joint Committee on Human Rights, I have Amendments 64 and 65 in this group, as my noble friend Lord Paddick has trailed. The Bill gives powers, as does the Terrorism Act 2000, whether or not there is a suspicion. The JCHR’s amendment would insert a test of reasonableness—that is, a threshold of reasonable suspicion—to stop, search and detain for the purpose of determining whether an individual is involved in the commission of a hostile act, and would allow the exercise of these powers only when it is,

“necessary and proportionate to do so”.

My noble friend said that he was not sure whether the second of those words was necessary, or possibly even proportionate. I find it quite difficult to know when one should articulate those criteria. We are told that they must always apply but sometimes it seems necessary to have the debate.

The committee identified five potential interferences with Article 8 rights in the case of a person subject to the power: he must provide any information or document requested—failure to do so is punishable by a substantial fine and imprisonment; he can be stopped and searched; his personal belongings may be copied and retained; he may have biometric data taken; and he may be detained for questioning. These are of course existing provisions but there are distinctions from the 2000 Act. Under this legislation the purpose of the Schedule 3 power is broader and, we think, more ambiguous than the Schedule 7 power in the 2000 Act, giving a greater risk of arbitrary use of the power.

Professor Clive Walker, whom I have quoted before, has suggested that if the real mischief behind these powers is the Salisbury attack, the purpose should be confined to powers to stop, question and detain without reasonable suspicion on the basis that the person has information or is carrying materials which might relate to crimes under the Official Secrets Act or chemical, biological, radiological, nuclear and explosive crimes. Under the schedule to this Bill, there are also broader powers to retain articles and make copies of materials, including “confidential material”, compared to Schedule 7. Under that schedule to the 2000 Act, material cannot be reviewed or copied unless officers have reasonable grounds to believe that it is confidential.

Under Schedule 3, there will be the oversight of the Investigatory Powers Commissioner, which is of course welcome. The Government also point to the fact that the decisions of the commissioner are subject to judicial review as a safeguard but, as the European court has commented, where statutory powers are wide, applicants can face formidable obstacles in proving that decisions are ultra vires. For that reason, among others, we think it is necessary that the statutory powers are clearly defined and sufficiently circumscribed.

[Lord Rosser (Lab)]

We have Amendment 65A in this group. I shall speak to it briefly. Paragraph 1(4) of Schedule 3 states:

“An examining officer may exercise the powers under this paragraph whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.


As has already been said, under Schedule 7 to the Terrorism Act 2000, an officer can stop a person without having grounds for suspicion that the individual is involved in terrorist activity. However, the draft guidance published by the Government states that stops under Schedule 3 cannot be arbitrary and must be informed by the threat of hostile activity to the UK. The purpose of Amendment 65A is simply to enshrine the wording in the draft guidance in the Bill. The precise wording in the draft guidance is:

“the decision to select a person for examination must not be arbitrary. An examining officer’s decision to select a person for examination must be informed by the threat from hostile activity to the United Kingdom and its interests posed by foreign States and hostile actors acting for, on behalf of, or otherwise in the interests of, those States, whether active in or outside the United Kingdom”.

The objective of this amendment is simply to put that wording in the draft guidance, which provides some sort of safeguard, into the Bill rather than leaving the Bill with, as it appears to be at the moment, effectively a random stop-and-search power.

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Rosser

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Rosser]

Clause 3 provides for a new offence of obtaining or viewing information online of a kind that is likely to be useful for committing or preparing an act of terrorism. Section 58 of the Terrorism Act 2000 already criminalises collecting, recording and downloading such material. The new offence broadens the type of activity that is potentially criminalised from actively downloading to simply having sight of information, and attracts a maximum of 15 years in prison.

The difficulty once again is that while those we want to catch may well fall foul of the new offence, it is a distinct possibility that those we do not may also get caught up when pursuing their legitimate business, or will be deterred from undertaking some of their legitimate business at all by the thought of getting caught up. As with the previous debate, this could include journalists, academics and those engaged in other research activity, as well as those looking by mistake at information online of the kind likely to be useful for committing or preparing an act of terrorism, or without any intent to act on the material in a criminal manner.

Originally, the Government proposed in the Bill that the new offence should be committed after material had been viewed three or more times—the so-called three clicks test. That was subsequently changed to provide instead for a reasonable excuse defence, which would include cases where the person did not know and had no reason to believe that the information was of a kind likely to be useful to a person committing or preparing an act of terrorism. However, the change could also be interpreted as meaning that an offence could be committed after one click or viewing, rather than three.

The purpose of Amendment 11, therefore, is to minimise the possibility of people carrying out their legitimate business being caught by the new offence by providing that a person commits an offence only if they view or otherwise access material,

“as part of a pattern of behaviour”,

in relation to the offence of accessing the material in question online.

As I said in an earlier debate in which the amendment in question added the words,

“as part of a pattern of behaviour”,

if this amendment does not find favour with the Government, I hope the Minister will say what steps they intend to take to ensure that those with legitimate business in relation to material covered by the clause do not find themselves in difficulty under the terms of the new offence. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendments 12 and 13 in this group. The JCHR accepts that technology has moved on since 2000 but has expressed concern that viewing material online without any associated harm was an unjustified interference with the right to receive information. It was concerned too that the defence of reasonable excuse does not provide an explicit safeguard for legitimate activity. The noble Lord has rehearsed the history of this clause, and the Government’s current position, having excluded the three clicks provision, provides that a reasonable excuse includes but is not limited to situations where,

“the person did not know, and had no reason to believe”,

and so on. We are not reassured that there will be adequate protection for legitimate conduct, so we have proposed Amendment 12, on intention,

“to commit or encourage acts of terrorism”.

At the end of Committee, we will have to collate all the references to intention and recklessness to see whether each of us has been consistent in our arguments, which we may not have been. We want to insert a mens rea of intent.

Amendment 13 adds the phrase,

“the person has viewed the material in a way which gives rise to a reasonable suspicion that the person is viewing that material with a view to committing a terrorist act”.

If that wording sounds familiar, we have just been through it in Clause 2, so I refer the Minister to my argument then in defence of adding these words.

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Rosser

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Rosser (Lab)]

In Clause 4, new Section 58B, entitled “Entering or remaining in a designated area”, states that:

“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area”.


Under Clause 4, the burden of proof would appear to be clearly on the person charged with the offence, not on the prosecution to prove the guilt of the individual charged. The Government have said that that is not the case and that once the reasonable excuse defence has been raised, the burden of proof is on the prosecution, as laid down in existing legislation—Section 118 of the Terrorism Act 2000, which would still apply.

Even with that being the case, it nevertheless appears odd that a new section should say something incorrect: that the person charged with the offence of entering or remaining in a designated area has to prove that they had a reasonable excuse for being there, rather than the prosecution having to prove that they did not have a reasonable excuse. Our amendment would rectify this apparent anomaly by removing the Bill’s requirement for the person charged to prove they had a reasonable excuse as their defence, and instead make it a defence for the person charged simply to state that they had a reasonable excuse for entering, or remaining in, the designated area.

If the wording of the amendment does not find favour with the Government, I hope that its intention does and that the Government will agree to come back with an amendment of their own to new Section 58B at Report. We surely cannot agree to a clause which says the opposite of what is intended and is in apparent conflict with the terms of the legislation. I beg to move.

[Baroness Hamwee (LD)]

Perhaps I can ask both the noble Lord and the Minister a question: first, one to the Minister. Is the requirement for proof found in any other provision for reasonable excuse? I have been looking during the past few minutes; I could not find an example, but I did not get my iPad out to start reading through the whole of the Terrorism Act.

Secondly, I see the attraction of the term “state”. On who has to show what and in what order, we have been referred to Section 118 of the Terrorism Act. The terminology of that is “adducing evidence”. I am not sure whether the term “state” used by the noble Lord, Lord Rosser, is intended to be the equivalent of “adduce evidence”.

Immigration

Debate between Baroness Hamwee and Lord Rosser

Thursday 25th October 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement made earlier in the House of Commons. I shall not launch into a tirade against the Home Office and its leadership for yet another display of its own all-too-often uniquely insensitive way of handling immigration issues, or its belief that simply by announcing that the “hostile environment” has now been rebranded the “compliant environment” all the problems will be solved, or the impact on the department’s culture of the infamous net migration target of below 100,000. I think that we have reached the stage of despair. I will confine myself to asking a number of questions. The Statement makes reference to,

“an urgent internal review into it, which I am publishing today”.

Is the full review being published, or have any parts of it been removed before publication?

The Statement says that the law is that the provision of DNA evidence should always be voluntary and never mandatory. If that is a muffled way of saying that the Home Office acted illegally, does it mean that the Home Office is now liable to legal action from those who were told that it was mandatory for them to provide DNA evidence and because of that did so?

What form and level of compensation and reimbursement do the Government intend to offer to those affected by what the Statement describes as the unacceptable demands for the provision of DNA evidence? If the Home Office has in its records DNA evidence obtained through unacceptable demands, has that evidence now been deleted and, if not, why not?

According to the Statement, the internal review,

“outlines a number of areas in which guidance was unclear or wrong”.

At what level in the Home Office would such guidance, which presumably includes guidance on what actions are within the law and which are not, have been cleared? Is it at ministerial level, Permanent Secretary level or legal officer level?

Immigration cases where the provision of DNA evidence had been made a requirement were brought to the attention of the Home Office at the end of June. Why has it apparently taken so long for any Statement to be made—some four months?

The Statement makes reference to Operation Fugal, in connection with which the majority of cases so far identified have been found. The other areas relate, almost unbelievably, to adult dependent relatives of Gurkhas and Afghan nationals formerly employed by the UK. The Statement says that, so far, it is known that three schemes have been affected. Are those the three areas to which I have just referred or are they three others and, if so, which schemes?

It is almost inevitable that, at times, something will go wrong in the performance and delivery of a department’s business—no organisation can be perfect the whole time—but there seem to be rather too many problems at the Home Office. No doubt the substantial reductions in personnel have contributed—they certainly have not helped—and the approach to pay increases in the Civil Service in recent years will not have exactly boosted morale. But what is disturbing is the time it takes for some of these problems to come to light. This is once again an issue in this case.

The internal review has apparently covered oversight arrangements relating to the use of DNA, which I presume were not as effective as they should have been, but where does responsibility for having effective governance arrangements within the Home Office lie? Which committee or board within the Home Office has responsibility for ensuring that effective governance arrangements exist which will at least prevent serious misuse of powers taking place for any length of time, if not stop them occurring in the first place? Who chairs that board or committee with that overall responsibility? Indeed, is there a board or committee with that responsibility? What is the role of the Home Office Audit Committee, if any, in this regard? What is the role of the Home Office board, if there is one, and the role of its non-executive directors in this area of effective governance arrangements? I hope that the Minister will be able to say or write something about where responsibilities lie higher up the food chain in the Home Office in that regard, if not today then at a later stage.

The apology in the Statement from the Home Secretary for what has happened is welcome. His Statement commits him to a review of the structures and processes that we have to ensure that they can deliver an immigration system which is fair, humane and fit for the new immigration system that the Government say they will bring in for when we leave the European Union. I do not doubt for one moment the Home Secretary’s sincerity, but words are easy. It is when it comes to implementation and delivery that it all too often seems to go wrong at the Home Office. That is the issue that he has to solve in any revised or new immigration system, as well as making sure that the existing system can cope with all the applications from EU nationals living in the UK seeking to settle their status post Brexit.

[Baroness Hamwee (LD)]

My Lords, I too thank the noble Baroness for repeating the Statement. In the interests of time, I have edited the questions that I wish to ask so as not to repeat those of the noble Lord, Lord Rosser, which were all very good and pertinent.

The Minister tells us that this is in effect an apology to those affected. Will the Home Secretary contact the individuals affected to give them a personal apology? That seems the proper thing to do, because the events that we have heard about must have been quite devastating for some of those affected. Instructions have been given that officials must not seek DNA evidence on a mandatory basis. Can we be assured that “mandatory” will be given quite a wide meaning? If I were told that I was unlikely to be believed if I did not provide DNA evidence, I would regard that as mandatory, or something very close to it. A new task force has been set up, and we have heard about the external oversight, but is the task force comprised of Home Office officials? Is it they who will give advice and support, and are those affected going to be told that that advice and support will be available to them?

On reimbursement, the words in the Statement are, “looking to reimburse”. I am not suggesting that an attempt has been made to find weasel words—it is a fairly common way of saying “we will reimburse”—but I would like to hear that this is a little more than a hope, and without requiring the release of the claim, which I think was the point touched on by the noble Lord, Lord Rosser.

During the Joint Committee on Human Rights inquiry into what happened in the case of the Windrush generation—I am a member of that committee—we were concerned to know what action was taken when errors were discovered, with regard to individuals. That is perhaps another way of asking what sort of internal audit is in place and what steps are taken when it is found that mistakes have been made by individual officials. In saying that, I am not seeking to blame officials: I believe that those who operate the system seek to apply what they understand to be Home Office policy, sometimes expressed, sometimes implied.

The Statement refers to,

“how to address the root causes”,

of the problem. The “committed people”—I use the Home Secretary’s term—who operate the system will naturally seek to achieve what the politicians are aiming for: they take the detail and the tone from them. I think that happened in the case of the Windrush generation, and the hostile or compliant environment is not, to use the words of the Statement again,

“fit for the modern world”.

That is why the Liberal Democrats have recently agreed as our policy that processing immigration and asylum applications should be taken away from the Home Office, with a new dedicated unit set up. This scandal is an example of why it is important to ignore political pressure and work fairly and lawfully in processing applications.

Crime (Overseas Production Orders) Bill [HL]

Debate between Baroness Hamwee and Lord Rosser

Report stage (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Lord Rosser]

The Bill extends the ability of law enforcement agencies through overseas production orders to obtain electronic data held by service providers overseas for the purposes of fighting serious crime, including terrorism. Since the assumption is that an agreement with another country will be reciprocal, the terms of the Bill when implemented will also, in reality, allow law enforcement agencies in that other country with which we have a reciprocal agreement to more easily obtain electronic data held by service providers in this country. But the Bill does not appear to provide adequate safeguards against confidential journalistic material being handed over in a way that results in sources losing their anonymity. We thus appear to have a Bill that potentially compromises the position and values of our free press. If sources of information do not feel that their anonymity will be protected, they are much less likely to provide information to journalists—information that might bring to light corruption, fraud, sexual offences, adverse environmental activity or failings by large organisations or government, for example, that those involved might wish to keep secret.

Clause 12 requires that where an overseas production order is made in respect of confidential journalistic data, it must be made on notice. The agency applying for the overseas production order would have to judge whether the material sought was ordinary or confidential journalistic material, but there is no guarantee under the Bill as it stands that the journalist, or indeed media organisation, will be able to make representations to the court. There is no requirement in the Bill for the journalist or media organisation that acquired the confidential material to be informed. The judge has a discretion to notify the journalist but not a duty. Without a requirement to notify the journalist or media organisation, take representations from them and have regard to what they say, there is no means by which journalists or media organisations can seek to protect their source.

This amendment seeks to address this concern by providing the right of journalists or media organisations to be given notice that an order in respect of confidential material is being sought, and to then be able to make representations to oppose the making of an order involving such journalistic material. It would also provide that the judge must be satisfied that there is a public interest that overwrites the confidentiality of the data sought before an order is made. If the Government have concerns that there might be journalists whom they would not wish to inform of an application for an order, then the advice could be given to the media organisation for whom that journalist worked.

The amendment seeks to ensure the continuation of an important safeguard. I beg to move.

[Baroness Hamwee]

My Lords, from these Benches we had an amendment in Committee requiring the court to be,

“satisfied that … data … is not confidential journalistic data”.

We were concerned that the Government had not consulted the NUJ or other organisations; I wonder whether they have had an opportunity for a discussion since then. The News Media Association certainly made its views clear with its concern about what it described as an artificial distinction between “journalistic material” and “confidential journalistic material” and what might flow from that distinction.

New subsection (8C)(b) proposed in Amendment 6 seems to make all data held by a person acting as a journalist “confidential journalistic data”. I see the attraction in that but I wonder whether this is the place to treat material differently from how it is treated elsewhere in UK law—in other words, I wonder about making that provision apply for the purposes of this piece of legislation only, which is a fairly small piece of the jigsaw of legislation that applies to journalism. Can the noble Lord, Lord Rosser, confirm when he winds up whether I have read this correctly: is he eliminating a distinction in this piece of legislation only, and only in the circumstances to which it will apply?

With regard to Amendment 11, we support a requirement to give notice of an application. We had an amendment to that effect in Committee, and we have amendments in the next grouping that are an attempt to respond to the Minister’s comments on the issue then.

Crime (Overseas Production Orders) Bill [HL]

Debate between Baroness Hamwee and Lord Rosser

Committee: 2nd sitting (Hansard): House of Lords
Monday 10th September 2018 Grand Committee

[Baroness Hamwee (LD)]

My Lords, this amendment is grouped with Amendment 22 in the name of the noble Lord, Lord Rosser. We are both interested in how orders are to be enforced. I have to say that I think both amendments are slightly circular. That might mean that they are elliptical—I am not sure. However, we are probing at this stage; I hope that the Minister will take that point.

There are obvious difficulties with enforcement in respect of data held by an entity that is not in the UK and which does not have a base or assets in the UK. We are told in Clause 6(4)(a) that the provisions apply regardless of where the data is stored. I do not know whether “extraterritorially” in the sense of outside the earth, as distinct from in another country, applies here. I simply do not understand how the technology works.

It seems to me that the enforcement will have two aspects: a sanction for non-compliance and ensuring the actual production of the data. So my first question is: will the mechanism for enforcement be in the co-operation arrangement and, generally, how are we to expect the issues that I have raised to be dealt with? I beg to move.

[Lord Rosser (Lab)]

I shall speak to the amendment in my name, which, as the noble Baroness, Lady Hamwee, said, has in effect the same objective as the amendment which she has just spoken to and moved. The purpose of our amendment is likewise to find out to what extent and by what means overseas production orders can and will be enforced where there is a bilateral or wider international agreement for an overseas production order made by a court in this country and one made in another country and served on a provider in the UK.

In Committee last Wednesday the Government stated that the reference at Second Reading that,

“UK-based providers will not be compelled to comply with overseas orders”,—[Official Report, 11/7/18; col. 929.]

meant that while,

“UK companies are not compelled by UK law”,

to comply with a production order,

“they may be compelled by the other jurisdiction … depending on the country in question”.—[Official Report, 5/9/18; col. GC 143.]

Bearing in mind that considerable progress appears to have already been made towards concluding a bilateral agreement on overseas production orders with the United States in line with the Bill, will an overseas production order made by our courts in respect of an American-based service provider be enforceable—and, if so, how, by whom and with what sanctions available if there is non-compliance?

Likewise, in the light of the Minister’s comment last Wednesday that UK companies might be compelled by the other jurisdiction to comply with their production order, how will such an order made by an American court in respect of a British-based service provider be enforceable, by whom and with what sanctions available if there is non-compliance? In addition, what do the Government consider would be the basis of appropriate and acceptable enforcement arrangements in both directions for any other countries with whom we might conclude bilateral arrangements in respect of production orders under the Bill?

Last Wednesday in Committee, the Government said that,

“it is reasonable to expect that some form of dispute resolution mechanism would be in place to help determine any differences in the event that there is a dispute over compliance with an order”.—[Official Report, 5/9/18; col. GC 141.]

That statement was, of course, in line with what the Government had said in the Minister’s letter of 20 July following Second Reading. That letter referred to the Government expecting any bilateral agreement to include a mechanism for escalating any dispute over compliance.

But should the letter not have said that the Government “will” require a bilateral agreement to include such processes and procedures, rather than just that they expect that it will? Would the decision of such a dispute resolution mechanism be legally binding? If so, on whom? If not, what would happen if the dispute resolution mechanism failed to resolve the dispute? As I understand it, some service providers have welcomed the Bill because it will provide them with cover when making available electronic data, if done under the Bill’s provisions, from other potential legal proceedings. If that is the case, would that legal protection be provided by the Bill if it was not capable of being legally enforced in one or both directions?

What kind of issues in dispute could be addressed through the suggested dispute resolution procedure mechanism? Who would mediate or arbitrate if such a mechanism was in place? Would there be legal representation? How would the mechanism be activated and by whom? Who would pay the costs? Would the dispute procedure have to reach a conclusion or decision within a fixed maximum timescale? Would the dispute resolution mechanism for any bilateral agreement on production orders with the United States be the same in the United States and the UK, working to the same standard and principles and applying or not applying the same sanctions? If there is to be any enforcement by the courts, through which court would an overseas production order made in this country be enforceable, and through which court would an overseas production order made in the US or another country in respect of a British service provider be enforceable? After at least two years of discussion with the United States on the proposed agreement, the Government must have some specific answers to these questions.

--- Later in debate ---

[Baroness Hamwee]

My Lords, my Amendments 25, 26, 28 and 35 are also in this group. The noble Lord, Lord Rosser, has given notice that he intends to oppose Clause 7 standing part of the Bill. I assume that that is to probe the operation of the clause. I am sure he takes the view that I do—that one would not want to accept that these orders can be made without the possibility of variation, revocation or, in the most general sense, appeal.

On Amendment 24, I am ready to be told that it is not necessary to spell out that revocation or variation can be,

“in whole or in part”.

I realise that a part-revocation is probably a variation. We also find the non-disclosure requirements rather troublesome. Amendment 25 seeks to probe the procedure for opposing the non-disclosure requirements. Amendment 26 is part of the same question about how you appeal against them.

Clause 8 provides for non-disclosure of the existence of an order, as distinct from non-disclosure of its contents. There is something rather concerning about not being able to say that an order is in existence. If a data subject asks the internet service provider, it cannot even say, “We will have to refer to the judge”—or can it? I am not sure. The sanction here, presumably, would be contempt of court. I have already referred to whether that is an effective sanction in the case of an overseas or international body. I was reminded of super-injunctions when I read this. They do not have the greatest reputation. Presumably the Minister will remind us that disclosing the existence of an order to a subject could hamper the work of law enforcement or security. All my instincts are that somebody who is affected by an order should know about it. Perhaps the Minister could take this opportunity to explain the operation of it.

Amendment 35 is another probing amendment, about how one appeals, in this case against Clause 13. But my major concerns are around Clause 8. I beg to move.

[Lord Rosser]

As the noble Baroness, Lady Hamwee, said, I have tabled a Clause 7 stand part debate, which is intended to provide an opportunity for the Government to explain in a bit more detail why this clause is deemed necessary and how and in what circumstances it is intended to operate. In what kinds of circumstances do the Government envisage it being necessary to vary or revoke an overseas production order, and how many times has that happened in respect of domestic production orders, compared to the number of such domestic orders issued? Does the varying or revoking referred to in Clause 7 apply to overseas production orders made in this country or to such orders made in the country with which we have a bilateral agreement and applying to British service providers—or, indeed, does it apply to both? In what circumstances would the Secretary of State, rather than the appropriate officer who applied for the order or any person affected by the order, be likely to seek to vary or revoke an overseas production order?

Will the application to vary or revoke be heard by the judge who made the original order, and what information, or indeed anything else, will be required from an applicant seeking to vary or revoke an overseas production order before court time is granted to hear their application? What will be the test, if any, in terms of the extent or otherwise of a proposed variation being sought before it can be considered or granted? Does the reference in Clause 7 to the requirements in Section 4(2) to (6) continuing to be fulfilled, or being fulfilled, apply to the variation that is being sought or to the original overseas production order as altered by the variation?

Once an overseas production order has been served, the recipient has, I believe, as a standard, seven days to act on it. Presumably that means that an application to vary or revoke by the recipient as a person affected by the order has to be made within those seven days. Is that in fact the case? If it is, is it not a very short period of time, particularly if it is also envisaged that a judge will have to deal with any application to vary or revoke within that seven-day period, or will a judge be able to extend the period already laid down for the electronic data specified in an overseas production order to be produced if an application to vary or revoke has been made?

Finally, what will be the maximum period of time within which applications to vary or revoke must be determined by a judge, and who will be given notice of an application to vary or revoke an overseas production order, and in what circumstances, and thus have the opportunity to support or contest the application?

--- Later in debate ---

[Lord Rosser]

I will be very brief. Clause 9(1) states that an overseas production order that is not served within a period of three months is automatically quashed. My Amendment 29 would reduce the three months in the Bill to two months. The purpose of the amendment is to give the Government the opportunity to say why it is felt that as long a period as three months is needed before an order is quashed if it has not been served.

As the Minister said in the previous discussion, the purpose of the Bill is to provide a much faster means of obtaining electronic data than is currently available under the mutual legal assistance process, which can and does take months. Bearing in mind the need for greater speed in respect of serious crime and terrorism offences or investigations, why could it then take as long as three months to serve an overseas production order once it had been made, and for the specific requirements set out in Clause 4(2) to (6) to be met? Why would two months, as suggested in this amendment, be insufficient, and if it is deemed by the Government to be insufficient, in what kind of cases or circumstances would that be the position? I beg to move.

[Baroness Hamwee]

I have not got a lot to say on this—but I will say it nevertheless. On Amendment 29, I agree with the noble Lord, Lord Rosser, that if there is an order it should be served quickly—although my reaction was, “If it’s so objectionable that the period should be reduced, there shouldn’t be an order at all”. However, in light of his remarks, perhaps I misunderstood the direction in which he is going.

Amendments 36 and 37 are grouped with Amendment 29 and relate to Clause 14, which is about “means of service”. Clause 14(3) refers to service on a person outside the UK by delivering the order or notice, or whatever it is, to that person’s office or place of business. I wonder whether a person could be outside the UK but at the same time have an office in the UK—unless its base is outside. I am not quite sure what those words mean in context.

Amendment 37 relates to Clause 14(3)(a), which says that service can be made by delivery to a place,

“in the United Kingdom where the person carries on business or conducts activities”.

What does “conducts activities” mean if it does not amount to carrying on business? Is this just a bit of belt and braces? If it is, I would not take exception, but I wonder whether the phrase is normally used, because it seems to be part of carrying on business.

--- Later in debate ---

[Baroness Hamwee]

I am a bit confused, but that last point is not something to answer now. It is about whether we are talking about the present or whether, having been at an address in, say, Newcastle at one point, and you have moved to Liverpool, there can be service in Newcastle.

[Lord Rosser]

Bearing in mind that the Minister has said, without making any commitment, that she will reflect further on the amendment, I beg leave to withdraw it.

Crime (Overseas Production Orders) Bill [HL]

Debate between Baroness Hamwee and Lord Rosser

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Grand Committee

[Baroness Hamwee]

My Lords, I should just say that I accept that the terminology is used elsewhere: one of my amendments objects to its use elsewhere. I am still troubled by how it applies here, as I am not sure how one would apply for the revocation, but I will of course go back to look at it.

[Lord Rosser]

I thank the Minister for her response. I will reflect on what she said about Amendment 12. I was not entirely clear about her response to my question: if a view was taken that the term “terrorism investigation” was being rather loosely interpreted by a party to an international agreement on an overseas production order, how could that decision be challenged? I may have missed her response but, if so, could she repeat it?

Immigration Detention: Shaw Review

Debate between Baroness Hamwee and Lord Rosser

Tuesday 24th July 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Statement. I cannot say that I have read the Shaw report. I was probably in a very similar situation to the Minister, in that I received it only an hour or so ago. Inevitably, that rather restricts what one can say about it. One thing that I have noticed is that, under the acknowledgements at the beginning and in the foreword by Stephen Shaw, there is a date: April 2018. Why is this report being brought to Parliament only in July 2018 and on the last day, effectively the last afternoon, before the Summer Recess? What exactly has been going on since then, if I am correct in thinking that he submitted his report in April 2018, which has prevented the report being published?

The report that we have—this second Stephen Shaw report into immigration detention—does not say that everything is right. It simply says that the situation is better than it was, which is a very different thing. The report is not quite the supportive document that the Statement seems to suggest. Let us look at one or two of the points made in the report.

Last year, it seems that 64% of those detained left detention within a month, and 91% left within four months. It depends on what one’s definition is, but detention was meant to be only for a short period of time, pending removal. Last year it was found that over half of those in immigration detention were released back into the community—a point made by Stephen Shaw in this report. So if more than half in immigration detention were released back into the community, why was their detention needed at all? The Government’s Statement says that,

“immigration detention is only for those for whom we are confident that other approaches to removal will not work”.

We are talking about large numbers of people who are detained and not removed but are released back into the community. A number of people seem to be detained who should not be, which is a point made by Stephen Shaw in this report.

Stephen Shaw comments on the issue of indefinite detention and time limits, saying:

“I have not directly considered the case for a time limit on detention”,


so we do not actually know what his view is on that issue. But he says in his foreword that,

“the number of people held for over six months has actually increased. The time that many people spend in detention remains deeply troubling”.

That is a point that I do not think was highlighted in the Government’s Statement on the report. Why has the number of people held for over six months increased? Do the Government agree with Stephen Shaw that the time that many people spend in detention remains deeply troubling?

Virtually all the population reduction in immigration detention has been on the male side, while the number of women in detention has fallen by a much smaller percentage. Yet there is a high level of vulnerability among women detainees—the very people one would have thought should not have been detained. Can the Minister say why that has happened?

The report deals at some length with the adults at risk policy. It was introduced by the Home Office and does not appear to be working properly in its objective of reducing the numbers of vulnerable people in detention. In his visits to immigration removal centres, Stephen Shaw found many people who he felt should not be there, and he comments in his report that,

“every one of the centre managers told me that they had seen no difference in the number of vulnerable detainees”,

and that in some cases the numbers had gone up. He also calls for,

“a more joined-up approach between the Home Office and its partners across Government”,

which, he says,

“applies particularly to the Ministry of Justice”.

In the section in the report on alternatives to detention, Stephen Shaw draws attention to some of the consequences of the policies restricting access to services that go under the umbrella of the hostile environment, which I believe has now been rebranded as the compliant environment. While he says in his foreword:

“Some of what I say in the pages that follow reflects very well upon the Home Office, the Department of Health and Social Care, and NHS England”,


he goes on to say that:

“I have found a gap between the laudable intentions of policymakers and actual practice on the ground”.


He also comments that,

“the Home Office’s strategy of expanding capacity by adding extra beds into existing rooms had exacerbated overcrowding and created unacceptable conditions”.

Why has the Home Office’s strategy led to the arising of that situation, upon which Mr Shaw has commented adversely? He repeats again in his report his concern that,

“more needs to be done to ensure that individuals who are at risk are not detained”.

I conclude by raising three questions for the Government in addition to those I have already asked. We are in a situation where the Chief Inspector of Prisons, the all-party parliamentary groups on migration and on refugees, the Bar Council, the British Medical Association and NGOs have all called for an end to indefinite detention. Do I take it from the Statement that the Government are still not prepared to commit to that objective? Perhaps the Minister could confirm that one way or the other.

I think I am also right in saying that the previous review called for an absolute exclusion on pregnant women in detention. But as I understand it, in 2017, 53 pregnant women were detained, almost all of them entirely unnecessarily, and were subsequently released into the community. If pregnant women are still being detained, will the Government commit now to an absolute exclusion of pregnant women and children from immigration detention? There is also currently no proactive screening process so that survivors of sexual and gender-based violence and others who are recognised as vulnerable under the adults at risk policy are identified before they are detained. Will the Government commit to introduce a proactive screening process to achieve this objective?

Finally, now that we have had the follow-up Shaw review, how will the Government ensure that the detention estate continues to be reviewed and assessed? I note that the Statement made reference to the review of the adults at risk policy, but there is more to it than simply that policy, vital and important though it is, so I ask that question once again—bearing in mind that the Shaw review has once again said that the situation is far from what it should be.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for repeating the Statement regarding adults at risk and vulnerable people in the detention system. I have always thought that it would take someone very resilient not to become at risk or vulnerable to the effects of detention once detained, however they started that process. That applies even to definite detention, and far more to indefinite detention, when the absence of hope is added to the other conditions experienced. I was grateful to the Minister’s colleague Caroline Nokes, the Immigration Minister, whom I met with the noble Lord, Lord Hylton, the other day, for confirming the Home Office’s aspiration of a humane system. I welcome the direction in which the Government are going on this.

I will mention again a report to which I have referred before in your Lordships’ House—the recent report by the Red Cross on the long-lasting impact on mental health of everyone surveilled after release from detention; in other words, release from physical detention is not the end of the experience.

There is always talk of numbers and percentages, which is helpful, but it is worth remembering that each person detained is an individual. The silver lining to the Windrush experience was that it rather confirmed that; that is certainly how they were seen by the public during the Windrush reports.

A number that I find shocking is the standard number of days to which the Home Office works in dealing with asylum claims. Also, if someone does not go when he is told to leave the country, he is automatically regarded as a flight risk, to the extent that even when he reports to the Home Office he is picked up from there and put into detention.

I am a member of the Joint Committee on Human Rights, which this morning announced a new inquiry into immigration detention, because human rights—particularly Article 5 of the convention—are engaged. The committee was planning this inquiry anyway, but the evidence that we heard in an inquiry into the Windrush generation’s experience particularly drew our attention to issues including access to legal advice, the possibility of challenge to detention and accountability.

Policy is always only a part of the story. Implementation and practice are the other very important side of the coin and, of course, that is very much what Stephen Shaw has focused on. He and Mary Bosworth deserve our thanks for all the work that has gone into this report. I have not been able to read this door-stopper yet—it is about half the size of the last door-stopper, but even so—but I will. It seems to me that the reasons for detention given in the Statement rather illustrate that detention is not, as we are so often told, treated as the last resort, although I believe that it should be the very last resort.

I want to pick up a number of points made by the Minister. She mentioned that the team of special detention gatekeepers has been set up—this is part of the recent history—but the gatekeeper process does not seem to have been working as well as planned. The Statement refers to ensuring that decisions to detain are reviewed. What about the initial decision? Should there not be investigations prior to detention to confirm that there are no indicators of vulnerability?

The Statement also refers to immigration bail, described as all being “good work”. Of course, it has been very welcome, but it has not been unfailing. The Minister will recall our exchanges about the problems that detainees have in accessing education. Importantly, it is clear that detainees do not all know that they can apply for bail at any time.

With regard to alternatives to detention, we have heard the organisations that the Home Office is going to work with, but can the Minister assure us that work will go on with other jurisdictions where there are very different practices and that the subject will be not just those whom the Home Office regards as vulnerable but much wider? Mr Shaw comments rather delicately that he is not certain that there has been significant investment in this since the first report.

I must leave time for the Minister to respond—

Immigration (Guidance on Detention of Vulnerable Persons) Regulations and the Detention Centre (Amendment) Rules 2018

Debate between Baroness Hamwee and Lord Rosser

Wednesday 27th June 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for bringing this Motion forward. I start from the position that immigration detention does not do anybody any good. I find it hard to think that one would be liable to be harmed, whether one is vulnerable—a term I do not find easy—or not. Which of us would be robust enough?

In a previous debate, I quoted from Never Truly Free, a recent British Red Cross report on the humanitarian impact of the UK’s immigration detention system, including the mental health of detainees after release. It concluded:

“Immigration detention has a known negative impact on mental health. Most detainees will have experienced some form of trauma in their life before detention, the effects of which can be exacerbated in detention”.


It also stated:

“The damage done by detention does not simply go away once someone is released and the negative impact on mental health persists long after detention”.


I say this because I do not want to belittle, by implication, the experience of detainees who are not vulnerable—or at any rate, not “particularly vulnerable”, as per the phrase in Section 59—and to make the point that the definition of torture might be a little less difficult if we detained fewer people and for no longer than a maximum fixed period.

I have some sympathy with those who struggle with that definition, but this will always be a problem when you start from the wrong place and grapple with something that is not necessary. As has been asked, why is it necessary to distinguish torture from ill treatment for this purpose? The noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Lister, referred to Shaw—like Leveson, he must have got used to becoming a noun. It prompts me to ask whether he had any input in the content of these statutory instruments. Indeed, has he approved the definition?

As we have heard, we have been briefed by organisations with considerable experience of both working with victims of extreme cruelty and advancing the understanding of torture. They are very critical of the Government’s approach, both the detail and the principle. As we have also heard, the court did not require the Home Secretary to define the term.

What are we to make of the paragraph on “Consultation outcome” in the Explanatory Memorandum to the two instruments? It states that,

“the Home Office has discussed the proposal”—

that is, the definition—

“with interested non-governmental organisations (NGOs). The Home Office has considered comments made by NGOs and has committed to engaging with them as the detailed guidance and training for decision makers are developed”.

I was not aware that NGOs had the limited opportunity described to give their views to the Home Office, but those views are not reported in the memorandum. I take it that they were not accepted. As a matter of good practice, it seems to me that the memorandum should be much clearer on this.

My confidence in the process was not helped by the Explanatory Note to both instruments. It states:

“A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen”.


I do not know about a financial impact, but by definition there will be an impact on those undertaking Rule 35 assessments and on the numbers held in detention. There must be an impact. Medical practitioners have a difficult enough task in making assessments with time and other constraints and in a place and in circumstances which are far from the safe and supportive environment needed to work with such patients—I use the term deliberately—and which are likely to contribute to ongoing trauma, to exacerbate symptoms and to impede the healing process.

I am also interested in the concepts of control and powerlessness in the definition. At any rate, they certainly allow for the argument that a victim with a particular history of being controlled and powerless will experience detention as torture. With regard to that history, what is meant by powerlessness? The noble Lord has raised this point. Will the Minister confirm that the definition is not confined to a physical situation and that control and powerlessness may be different for different people?

Under the draft guidance, an individual is regarded as at risk—we discussed this at Questions the other day—if they are,

“particularly vulnerable to harm if placed or remaining in detention”.

Why is this in addition to the history? Why has it been added? In fact, as a matter of the construction of paragraph 7, is that something that the individual needs to declare, or is it an objective matter for the third party? I have read the paragraph several times and I am not sure.

I understand that the guidance introduces a wider range of immigration factors than before, placing far greater emphasis on non-compliance. My final question is: does this not of itself affect the balance, which we are told is sought, between,

“protecting the vulnerable and ensuring the maintenance of legitimate immigration control”?

That comes from paragraph 1, on the purpose of the guidance.

In summary, these Benches support the Motion. We share the noble Lord’s regret and our regret goes much wider, too.

[Lord Rosser (Lab)]

I add my thanks to the noble Lord, Lord Ramsbotham, for providing us with this opportunity to debate this issue of concern over the Government’s actions and decisions on the welfare of vulnerable people in immigration detention. We agree with the concerns that the noble Lord expressed about how the Government are dealing with this matter and his proposals for addressing the situation.

As I understand it, it is meant to be Home Office policy that vulnerable people, which includes the victims of torture, should be detained only in exceptional circumstances, for example, if they are likely to offend or cause a public safety risk. However, that does not always appear to be the case, because in the year ending last March there were apparently well over 26,000 exceptional circumstance cases in immigration detention. Once again, as I understand it, these are not even people whose removal is imminent, since about half are released back into the community.

In his first review, Stephen Shaw said that detention in and of itself undermines welfare and contributes to vulnerability. Half a dozen court cases in the last few years have drawn attention to the unacceptable treatment of detainees. I believe that the death rate among detainees in immigration detention has risen. Last year, 11 people died in custody.

The situation reached such a state that in 2015 the now Prime Minister, then Home Secretary, asked Stephen Shaw, the former Prisons and Probation Ombudsman, to conduct a review of the welfare of vulnerable persons in detention. His report concluded that the safeguards for vulnerable people were inadequate, that immigration detention was used too often and for too long, and that the impact on mental health increases the longer detention continues. However, in implementing their adults at risk policy, the Government did not fully address the concerns raised by Stephen Shaw. Indeed, the Government’s detention centre rules and guidance on the detention of vulnerable persons seemed to increase the risk of harm. In its first 10 weeks of implementation, the Government’s adults at risk policy was applied incorrectly in almost 60% of 340 cases. Torture survivors continue to be detained and torture is one of the 10 indicators of risk in the adults at risk policy.

The guidance on the detention of vulnerable persons increases the burden of providing evidence on the vulnerable individual, since specific evidence will be needed that detention is likely to cause harm and the risk of harm in detention has to outweigh a range of immigration factors, such as the risk of absconding. In effect, it requires a person to prove that they will not abscond, which one would have thought was extremely difficult to do. The guidance already includes a broad range of immigration factors that can justify detention, even of torture survivors.

The result has been that the release rate, following a report designed to screen torture victims out of detention, has fallen considerably. In the third quarter of 2016, before the policy change, nearly 40% of those in the report in question were released. In the first quarter of 2018 that number had fallen to just 12.5%. Those figures were borne out in a 2017 High Court ruling in a case brought against the Home Office that the adults at risk policy unlawfully imprisons through immigration detention hundreds of victims of torture. The Home Office had previously decided to narrow the definition of torture so that it refers only to violence carried out by state actors. Apparently, it now excludes vulnerable survivors of non-state abuse, such as by ISIS, Hezbollah or the Taliban.

The Government have tabled the two statutory instruments we are discussing in response to the High Court’s ruling. However, the organisation that brought the successful case against the Home Office has said that the new torture definition is inappropriate and too complex for caseworkers and doctors to apply to specific cases, and that even when applied correctly the definition will exclude a group of victims of severe ill treatment who do not fall within the other indicators of risk.

As I understand it, the Government were actually asked by NGOs to await the publication of Stephen Shaw’s re-review into the welfare of vulnerable people in detention to allow consideration of his findings before laying changes before Parliament. The Government have now had the Shaw re-review for some two months, but others have not been given a chance to consider his latest recommendations since, subject to the Minister saying otherwise, it has not been made available by the Government.

The Government’s argument for not allowing consideration to be given first to the findings of Stephen Shaw’s re-review appears to be that they could be in difficulty if they have not produced a revised adults at risk policy within 12 months of the October 2017 High Court judgment. But did the judgment specifically say that, and did it say that the Government should not await the outcome of any re-review before revising their adults at risk policy? The Government have had the Shaw re-review for two months. There is nearly a further four weeks to go before the Summer Recess, without taking account of the two-week short sitting in September. If this Government want to speed up processes, they have previously shown that they can do so. They could have, and still can, in this case and ensure that there is an opportunity to consider these two statutory instruments while they are still drafts in the light of the findings of Stephen Shaw’s re-review. Doing so might avoid the Government having another uncomfortable day in court.