Counter-Terrorism and Security Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Monday 9th February 2015 Lords Chamber

[Baroness Hamwee]

My Lords, an acknowledgement of the Minister’s hard work, openness, patience and availability in numerous meetings applies not just to these clauses but to the whole of the Bill. He has been so helpful, as other noble Lords have said.

Having said that, I think it is right to say—noise from behind me suggests that I might be about to criticise the Minister; I am not—that there is a lot of work for the Government and local government, at all levels and in all sectors, to do. I will not be the only Member of your Lordships’ House who has had a number of emails this morning saying that the writer is very concerned about the Bill, or making points about the need for tackling radicalisation to be done from the bottom up. Such emails also mention issues around discrimination and all the things that many of us have voiced at some length during proceedings on the Bill. At this point, while giving ourselves a pat on the back for having got to here, it is only right to remember that the work done outside the legislation is probably more difficult than the legislation itself.

I gave very brief notice to the Bill team of one question. If the Minister is not able to answer it, since it arises from his most recent letter, which is not on the record in Hansard, I will of course understand if he would prefer to answer it by letter. The noble Baroness, Lady Lister, asked about due regard, particular regard and so on. The letter says, in terms, that the particular freedom of speech awareness and the principle of academic freedom are not elevated above the Prevent duty. On the last day of Report, I think, we heard a very helpful explanation of what “due regard” meant. Having said that, the letter goes on a couple of pages later to say that particular regard is stronger than due regard. I found it a little difficult to reconcile the two parts of the letter. The Bill team started to explain it to me, but I needed to get into the Chamber for the start of these proceedings. If that is better dealt with by letter, to have the same status as the letter that gives rise to the questions, perhaps that would be the way to do it.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister’s characteristically generous comments when he introduced these amendments illustrate his attitude to the whole Bill. I hope that the well-deserved praise that he has received so far does not damage his promotion prospects in the future, given where it is coming from. He said that the debate had lasted thirty-eight and a half hours. There were times when it flew by and there were times it did not, but it is a testament to your Lordships’ House—and I think noble Lords across the House, other than the noble Lord, Lord Phillips, have recognised this—that we have a substantially improved Bill from the one that we received, and with no votes, which is an interesting comment on the way we have proceeded in our discussions and debates both inside the Chamber and, as the noble Baroness, Lady Lister, referred to, outside the Chamber as well.

I thank the Minister for the number of occasions on which he has been willing to engage. We have all engaged with Ministers across parties in the past where we have engaged but have felt that they perhaps have not engaged in the same way. He has not been guilty of that on any occasion. He did engage properly. Even last Wednesday, I caught him at around midnight as he was leaving the Chamber, and he was willing to discuss the issue of academic freedom further. I think that says a lot about how we got to this substantially improved Bill.

My only question is to ask whether the Minister can place on the record the points that he made in his extremely helpful letter in that regard, as outlined by the noble Baroness, Lady Lister. I think that would be very important. I thank him and his Bill team, who have been available at all times for discussions and debate. I think that is what has led to the improvements.

Can I make one plea? I have also received emails and letters about this. There is some misunderstanding of the purpose of the Bill and how these measures will work. That is going to be very important. Legislation is one thing, but hearts and minds and understanding to make it work in practice in the way that it is supposed to—doing no less and no more than is intended—will be extremely important.

As well as the clarity that the Minister has given to the Bill as a whole, particularly on freedom of speech and academic freedom in Parts 1 and 2 of the Bill, the issues will now receive judicial review. That is extremely important. We pushed it to a vote in the Commons. We did not succeed, but we have succeeded in agreement across your Lordships’ House on that point during our debates.

On the issues of guidance, the fact that we have now increased parliamentary scrutiny by affirmative order is extremely important. I also recognise that during Committee, as the noble Baroness, Lady Buscombe, said, several changes were made to that guidance. She recognised that it would have to be changed before it was presented to your Lordships’ House through an SI.

We support these amendments. We are grateful to the Minister for putting them forward. We also welcome the spirit in which this Bill has been debated and discussed and the changes that have been made. It is a significant testament to your Lordships’ House that, as I said at the beginning, we have a much improved Bill in comparison to the one we received, and with no votes, by negotiation and discussion.

Counter-Terrorism and Security Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Tuesday 20th January 2015 Lords Chamber

[Lord Ashton of Hyde]

I think it would be better if I clarified that and came back to the noble Baroness. I do not want to say something that is incorrect on the precise details of this. I could make a guess, but I would rather not.

The noble Baroness’s amendment would mean that the Home Secretary would be required to have evidence that an individual has engaged in terrorism-related activity abroad rather than having a reasonable suspicion. The reasonable suspicion may well be based on intelligence, which is clearly not always the same as evidence. This change would greatly reduce the number of individuals against whom the Home Secretary could use this power. The result of this would be that the Government would not be able to control the return of individuals suspected of fighting alongside terrorist groups and would have fewer tools available to manage the threat these individuals posed to the British public.

Furthermore, where there is clear evidence that an individual is engaged in terrorism-related activity, it is likely that we would be in a position to seek their prosecution, which would be preferable to placing them under the conditions of a temporary exclusion order. Such a high test would also bring them within scope of the much stronger TPIM regime. Given the less stringent obligations of a TEO compared with the other measures, the Government’s view is that such a test would be disproportionate. On that basis, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, I am glad that my noble friend made those concluding remarks, referring particularly to prosecution where it is possible.

Should we be comforted by the distinction between the words in Condition A, “reasonably suspects”, with an emphasis on “suspects”—the noble Lord referred to “reasonable grounds for suspicion”, which we covered earlier today—as against, in Conditions B and C,

“the Secretary of State reasonably considers”?

That seems to require more of the Secretary of State. Conditions A to D must all be met, so we can look at them together and see an escalation of the seriousness of the Secretary of State’s views, if I may put it like that. I could understand the concerns of the noble Baroness if we were to look only at Condition A, but I do not think that we can look at it in isolation.

[Baroness Smith of Basildon]

I am grateful to the noble Baroness for trying to help the Minister but the purpose of the amendment was merely to probe the issues around the evidence base for “suspects”. She was taking me very literally on that.

I am grateful to the Minister for his response and glad that he will write to me on the point that I raised with him. Could he also write to me on the second point, which he did not address? This was about somebody who might have dual nationality and was fighting against terrorism, for instance. I gave the example of a British Iraqi Kurd who was fighting against ISIS. It would be helpful if he could clarify that.

The purpose of this amendment and my next, Amendment 56, is to tease out how this will work. The Government need to answer some of these complex questions. It is a big and important power, but we need to understand how it will work. I am grateful for the Minister’s help and his offer to write to me, and I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I wondered whether the noble Baroness was adopting this one.

[Baroness Smith of Basildon]

I apologise—mine is Amendment 59.

[Baroness Hamwee]

I think we are all being as co-operative as we can be on this: we are aiming at the same thing.

Briefly, Amendment 56 amends Clause 3, which provides that notice of the imposition of an order must include an explanation of the procedure for making an application under Clause 5. My amendment would provide that it should also include,

“the Secretary of State’s reasons”.

This is simply for the reasons that we discussed earlier: an individual affected needs to have an understanding, not necessarily—almost inevitably not—of the fine detail, but of the gist of the reasons why. This might not be the right term in this context, but in normal terminology it covers what I mean. Having knowledge of the procedure is not a great deal of use unless one knows the reasons for the Secretary of State’s decision. I did not quite keep that to under a minute but I beg to move.

Serious Crime Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Hamwee

Tuesday 28th October 2014 Lords Chamber

[Baroness Hamwee]

My Lords, I hate to disappoint the noble Lord, Lord Harris, but I fear that I am going to, as I simply have a question for him. I speak from a basis of almost no technological knowledge, but I would have thought that, presumably, all the services are open to abuse. Can I just ask what consultation there has been on this? The noble Lord talked about the responsible, innovative and exciting—if you are that way inclined—work being done by some of the ISPs. Like him, I have found the big players to be very responsible and wanting to be seen to be responsible. However, the proposed provision would obviously put an obligation on them. I would be interested to know how they have responded to it, if the noble Lord has had the opportunity to ascertain that.

[Baroness Smith of Basildon]

My Lords, I rise to speak briefly on this issue. During the Recess we had a meeting with Microsoft to discuss how it approached this matter. I was grateful for that because I probably share only one thing with the noble Baroness, Lady Hamwee, and that is that I have no technical knowledge or expertise and felt quite at a loss when looking at these issues. Microsoft officials gave us an understanding of the comments made by the noble Lord, Lord Harris, about the codes used to identify photographs and the hash code it used and they discussed whether it was an offence to store the coded photograph itself. Microsoft has developed its PhotoDNA technology that enables it to identify minor changes that abusers make in trying to slide past any checks and balances in the system, so it is carrying out impressive work to try to address this issue.

In listening to the presentation, I was particularly shocked by the sheer number of photographs and images, and the numbers of people involved, worldwide. At the beginning of his comments, the right relevant Prelate the Bishop of Derby, I think, referred to a recent case in Southend. That is close to where I live, so noble Lords can imagine that my local papers had a tremendous amount of coverage of that and I had commented on it. The case involved the head teacher of a local private school, who was interviewed by the police following the fact that his name came to light in an investigation carried out originally in Toronto. His name was passed to the UK, but it took far too long—well over a year—for him to be interviewed, following delays at CEOP and the police. When he was finally interviewed, he was found dead the following day. The amount of information that was found on his computer was staggering. Time will tell us the outcome of this as the investigations progress, but presumably that head teacher must have had links with people in other parts of the country and elsewhere in the world, and photographs may have been exchanged; certainly, he obtained photographs from others.

The scale of that activity is phenomenal and it is a tall order to expect the police to visit every single person involved in it. Having said that, I am critical of the fact that so few people, who we know have committed these abuse offences and have inappropriate images of children, have been visited by the police. I think that we could do far better in that regard and the delays are a cause for concern. However, we are talking about a massive number of people, so if technology is available that can block these photographs or allow the police to identify people more quickly, we should take every available opportunity to use it.

As I say, I was very impressed by the efforts being taken both by Microsoft, which briefed us, and by others to ensure that they can identify photographs, code them and pass on information. As I think the noble Baroness, Lady Hamwee, said, the amendment of the noble Lord, Lord Harris, does not place an obligation on internet service providers but allows them to take action. It basically says that they should consider the issue and, if there is a material risk, they should look at what they can do and take reasonable steps that might,

“mitigate, reduce, eliminate or other disrupt said behaviour”.

There are no sanctions or penalties for failing to do so, but it allows the internet service providers to take some action—action that we would want them to take and, I think, they would want to take.

The noble Lord, Lord Harris, has already said that he does not feel that he has a monopoly on being the world’s greatest drafter and is prepared to accept that there occasionally may be things that could be improved. He has, however, hit on something here. It is an issue to be addressed. I hope that the Government are having urgent meetings with the ISPs to see how they can work together on this. This amendment provides an opportunity to do so, and I would be interested to know what discussions the Government are having with internet service providers. It is an issue that we need to address. If we can deal with it at source and identify those who are responsible early on, it seems to me that would be a huge step forward in protecting children from this kind of abuse.

Serious Crime Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Hamwee

Tuesday 8th July 2014 Lords Chamber

[Baroness Hamwee]

My Lords, like my noble friend and other noble Lords, I do not want to comment on the fine detail of the amendment but simply to support the noble Baroness. Her points about avoiding criminalisation and what I might summarise as an active, supportive, constructive response, are immensely important. Under the noble Baroness’s chairmanship, some of us met a number of MPs from Portugal. We were very struck by the agreement across the parties about the benefits of this measure and the lack of contention around it. We actually ran out of questions to ask them on that issue. Clearly, in that country they have succeeded in taking some of the heat out of the drugs issues, which has been a very considerable achievement. I hope that we might learn from that example.

[Baroness Smith of Basildon]

My Lords, I am grateful to the noble Baroness, Lady Meacher, for giving me a copy of her amendment and a briefing note on it when she tabled it. I was not aware of the Portuguese experience as my noble friend, Lord Howarth described it. It is interesting and bears further consideration. I am not an expert on whether the detail of the amendment is correct. It looks complicated, which might be because it was drafted by a lawyer, but I suspect that it is not so complicated in practice.

These dissuasion panels would sit alongside the injunctions, such as is proposed in the Bill, and a police officer would refer a young person if they were involved in gang-related violence or a drug-related activity. The panel would be tasked with assessing the young person. It would determine whether there was a need to require the young person to undertake some form of action, whether that be treatment or counselling, to prevent them engaging in further activities, to protect them or to address their drug dependency. That seems to be a more holistic approach to tackling the drug culture and drug abuse.

Immigration Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Tuesday 1st April 2014 Lords Chamber

[Baroness Hamwee]

My Lords, when I raised issues about bail and mental health in detention at the previous stage, the Minister gave me assurances about the Home Office policy presumption in favour of release or temporary admission—a “presumption of liberty”, so called. He said:

“Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary”.—[Official Report, 3/3/14; col. 1163.]

As this is a more focused debate than in Committee, when we had, I think, six amendments and the Minister had to cover a lot of ground, perhaps I may ask him some questions of which he is aware.

Can the Minister expand on the criteria applied for detention or conversely release, and say something about Home Office guidance and case law? The issue of the periods applied by other EU member states has also been raised. Like the noble Lord, Lord Bourne of Aberystwyth, I am curious not just about the periods but the legal systems within which those periods sit and how other countries deal with the “abscond” risk. Although I suspect not, does the Home Office have any profile of those who are detained for more than the 28 days that we discussed previously and the more than 60 days we are considering now?

Finally, I cannot resist sharing with your Lordships a case study from the Movement Against Xenophobia, which is one of the many very helpful briefings that we have received. It refers to a man who had been born in the Ukraine and had moved to Poland. He was unable to get a passport and bought a false passport. He was picked up and imprisoned. One might say, “Fair enough”. After his imprisonment, he was held in detention. Post the imprisonment sentence, the detention was 18 months. Eventually, he was successful in challenging that. The irony is that he was trying to leave the UK when he was picked up.

[Baroness Smith of Basildon (Lab)]

My Lords, we have heard some extremely powerful speeches in today's debate, especially on the concerns about overlong detention. Some of the individual cases that we have heard about strike the humanity of all noble Lords—to take a phrase from my noble friend Lord Judd. We certainly understand the reasons for the amendment and agree that it should always be the objective to reduce the length of time that any individual is in detention. I would hope that in the vast majority of cases it is possible to deal quickly with the process for individuals or find alternatives to detention. As we have heard, that is in the interests of the individuals detained—we have heard that there are 30,000 detainees each year—and in the interests of the taxpayer.

The comments of the noble Lord, Lord Ramsbotham, and my noble friends Lord Judd and Lady Lister, led to a greater concern about the regime of detention centres and the way in which rules are enforced. We agree that immigration rules must always be enforced, but the responsibility of government is to ensure that all detainees are treated humanely, with high standards and safeguards in place. As this amendment seeks to draw attention to, the process of administrating and assessing claims or arranging deportation should be undertaken as quickly and as fairly as possible.

Long delays and long periods of detention bring with them other problems. I am sure that the Minister is aware of the research undertaken by Women for Refugee Women which illustrates concerns about access to healthcare and support for physical and mental health. Only this week, we heard the extremely sad and distressing account of a woman of 40 who died at Yarl’s Wood detention centre. I was pleased that yesterday the Minister announced an investigation and review into that sad and tragic death.

Will the Minister also confirm that there will be a full investigation into the reports of sexual abuse of vulnerable women at Yarl’s Wood by Serco employees? What action has been taken as a result of the report of the inspector who said that abused and trafficked women are being held at Yarl’s Wood? The chairman of the Home Affairs Select Committee in the other place said yesterday that Serco has confirmed to him that in the past few years seven employees had been dismissed for inappropriate behaviour. The Minister will also be aware that there are ongoing police investigations and criminal proceedings, although Nick Hardwick, in his most recent inspection report, said that—I paraphrase—good progress was being made but more needs to be done. There are real concerns that have been illustrated across the House today.

However, that is not the amendment before us today. This is specifically about the length of time an individual can be held, and we heard examples of overlong detention from the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Lloyd. My concern about the amendment is that it is slightly clumsily worded and does not necessarily achieve what it sets out to do. It has an arbitrary time limit of 60 days. Within that, there is no risk assessment of the issues of whether or not someone is likely to abscond or any assessment of the reasons for the delay.

More importantly, and this gives us the most concern, foreign criminals who have completed their sentences may be detained while they await deportation. That may take a little longer than 60 days to resolve—to get all the paperwork in place, ensure that they are treated properly and make an assessment of where they can be deported to. We would then be faced with the prospect of releasing those who do not have a legal right to be in the UK and who have become convicted offenders who have received a custodial sentence. That could lead to complications in the paperwork or the complex nature of the deportation. If the amendment were passed today as it stands, we could have a difficulty with former offenders who have been held in detention prior to deportation.

Unless I have missed something, there is no process in the amendment to allow for any extension in any circumstances, whether for a genuine risk of absconding or because of deportation for previous criminal offences. There is no qualification at all in the amendment as it stands. Having said that, I think it was my noble friend Lord Judd who used a phrase—which is well worth this House returning to on a number of occasions—about the humanity and the principle of the issue. The noble Lord, Lord Ramsbotham, referred to the amendment being a “stimulus”, because the Government should be aiming to achieve far shorter detention periods.

I fully appreciate that this amendment could focus the Government’s attention on being far more efficient in dealing with cases but there is a risk here, as I have outlined, and I am not convinced that the Government would necessarily take note in that way. I would like to hear some assurances from the Minister that action will be taken to deal with any abuses of the rules and regime in any detention centre. I hope that he will not dismiss the objectives of the amendment before us today because, whatever flaws there may be in the detail, this amendment raises issues of serious concern across your Lordships’ House, as he has heard, that have to be addressed. Although we cannot support this amendment as it stands, we would hope for a very sympathetic and helpful response from the Minister.

Immigration Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Tuesday 1st April 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I suspect that somewhere it will be recorded that my noble friend Lady Lister made a very long speech.

I shall be brief on this amendment. This was an issue that I raised in Committee and I raise it again because I was disappointed with the Minister’s response at that stage and I thought that I would have another shot at getting some clarity on it.

Amendment 22 would provide that a person lawfully married or in a civil partnership or a durable relationship with somebody in the UK would have a residence permit for three months for rest and reflection where the relationship had broken down as a result of domestic violence. The noble Lord and I have spoken on other occasions with regard to this Bill on domestic violence issues, and he will know of my concern that victims of domestic violence should be given every opportunity to deal with the issues that they face and not have them further complicated.

The amendment is designed to provide respite or a breathing space for an individual at a very challenging and difficult point in their relationship and in their life. Currently, if someone is in the UK and is the spouse of a student or a points-based system visa holder and the relationship breaks down as a result of domestic violence, they have only one option, which is immediate return to their country of origin. That might involve leaving any employment or uprooting any children who may be in school, and the point was made earlier about people having friendships and relationships. That would leave somebody in an abusive relationship with a very difficult choice: they would have to stay in that relationship, face immediate return or overstay. Under the amendment, the person would be able to consider options and might be able to make an application to remain in the country in their own right or return to their country of origin in a safe and rather more dignified way with, one hopes, the ability to make arrangements for their children and their work. I accept that the drafting is not perfect but I hope that the Minister will understand the objective of the amendment.

We tabled a similar amendment in Committee and the Minister responded by saying:

“If an individual is the victim of domestic violence, they have full protection of the criminal and civil law and of the law enforcement agencies, regardless of their immigration status. That is not in question”.

But nor was it my question. He went on to say:

“But that is not to say that all victims of domestic violence should expect that they can stay here in the UK”.

That, again, is not the point of the amendment. He said:

“There is provision in the Immigration Rules to grant indefinite leave to remain to victims of domestic violence who are here as the partners of someone who is a British citizen or settled in the UK, or a Foreign or Commonwealth member of Her Majesty’s forces who would be able to become settled were it not for service in those forces”.—[Official Report, 10/3/14; cols. 1577-78.]

That really did not address the point that we were making and we did not find it satisfactory.

At the time, the Minister said that he would write to me on that point. I do not appear to have had a letter by way of response. It is possible that I have missed it in the avalanche of letters that we have had on the issue. The noble Lord has been very good at responding and at having meetings, but I do not seem to have had that letter. Therefore, I have tabled this amendment to ask whether the Minister has given any further consideration to the points that we have made in relation to the three-month respite period. It would give a person the opportunity to make arrangements and to deal with their problems in a dignified and responsible manner rather than face a rushed deportation or remain in a very difficult relationship. It is a commonsense amendment to tidy up something that is currently a bit messy and unsatisfactory. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I, too, found the passage that the noble Baroness has just quoted and I realised that there was no reference in it to any exercise of discretion. There is a reflection period of 45 days for victims of human trafficking—at any rate, for those who go through the national referral mechanism. I do not think that that is long enough but that is another matter. I was glad to see that a 90-day period is suggested here. The Government, rightly, recognise problems of domestic violence, but can the Minister tell your Lordships whether there is any scope for exploring some sort of discretion to enable women—as it mostly would be, many of them women with children—to have a period in which to recover? They will not do that in 90 days, although I would not argue for more when we are exploring this, but they need a period in which to consider where next to try to take their lives and, quite often, their children. That would be the humane and proper thing for a civilised society to do. This is not suggesting that, having suffered domestic violence, there is some sort of instant entry to indefinite leave. It is just a temporary pause: an opportunity to consider what to do and where to go next.

Immigration Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Wednesday 19th March 2014 Lords Chamber

[Baroness Smith of Basildon]

My Lords, shall speak briefly on these amendments because I have listened to the noble Baroness, Lady Hamwee, quite carefully on them and I share some of the concerns that she raised. Concerning Amendment 87ZA, can I just be 100% sure that I have understood it correctly? The current position is that once a decision is taken not to extend or revoke leave, that leave is extended on the same terms and conditions during the period provided for lodging any appeal or while the appeal is pending. However, the Bill would remove that provision. The noble Baroness is nodding at me, so it seems I have understood it correctly.

[Baroness Hamwee]

That is as I understand it. Possibly like the noble Baroness, I have had some difficulty following this around the course.

Immigration Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Wednesday 12th March 2014 Lords Chamber

[Baroness Smith of Basildon]

I am grateful to the Minister and thank him for clarifying that—we all make mistakes. Does that not seem some kind of a massive loophole in the law—the landlord will have to undertake all these checks to ensure that the landlord’s tenant is a legal citizen of this country and entitled to stay, but the person who is renting the property could then allow guests to stay permanently, with it as their main home and with no payment? It would be possible for a rogue landlord to charge exorbitant rent to one person and for the others to stay for free. There seem to be complications around that, allowing a significant loophole in this legislation, if I am correct—but I may be wrong.

[Baroness Hamwee]

My Lords, I might add to the complications by pointing to the provision that, although the residential tenancy agreement of rent must provide for payment of rent, it need not be a market rent.

[Lord Taylor of Holbeach]

Yes, a further elaboration of the point is that the restriction applies only when the person is under an agreement, formal or informal, where the tenant pays rent. The immediate landlord is responsible; if the tenant sublets without the superior landlord’s knowledge, the tenant is responsible for the subtenant. This is quite convoluted language, if I may say so, and it might help noble Lords if I wrote to clarify that point. I see the importance of making it clear where the responsibility lies in these matters; I thank the noble Baroness for raising the issue in the first place and my noble friend Lady Hamwee for her comments.

Immigration Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Wednesday 12th March 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I may be quite wrong in my recollection, but I remember reading somewhere that only a single consultation with a GP would not be charged for. I hope that I am wrong in thinking that, but if that is the case, I am really worried. It builds on my noble friend’s point about diagnostic testing. I have a wonderful GP, but on the, happily, rare occasions on which I see him, he usually says, “Go to have a blood test and come back”, or “Let’s see how it goes and come back”.

Amendment 66E covers ground that has already been thoroughly covered by the noble Baronesses, Lady Meacher and Lady Cumberlege, about both victims of domestic abuse and persons who are believed to be victims of trafficking. The point about identifying both those groups—not all of them, but many of them, women—is very important. Often, they may not even be suspected of falling within those groups until they see a doctor. Doctors are in the best place gently to investigate how certain conditions have come about, because the patient may not be prepared to disclose the information without being encouraged to do so, and may not have disclosed it to anyone else—possibly not even to a doctor on initial consultation. Although the intention here is good, we have to be clear about how the provision will be implemented, as well as getting assurances that what we understand to be the case will be the case.

[Baroness Smith of Basildon (Lab)]

My Lords, there is little I can add to the points made eloquently by noble Lords—although, in an all-female debate, perhaps I should say noble Baronesses. Some points are not dissimilar to the principles that we raised on Monday about exemptions on housing issues and the rate of pregnancy and domestic violence. Again, the debate highlights confusion and a lack of clarity. The Government have to accept some responsibility for that confusion and lack of clarity.

The case raised by the noble Baroness, Lady Meacher, and reinforced by the noble Baroness, Lady Finlay, is that victims of domestic violence and victims of female genital mutilation are not just vulnerable but are victims of crime. That is a step further than vulnerable.

I recall that when I was a PPS at the Home Office many years ago, the Government piloted working with A&E departments to identify women who presented with injuries that were likely to be the result of domestic violence, to see whether we could get those cases through the courts and protect the women from being victims again. That was a very important part of A&E working as part of the whole criminal justice system. I worry that women who should present themselves to health services to receive treatment for violent injuries and FGM—the case presented by the noble Baroness, Lady Finlay, was horrific—will be victims of trafficking. We have to imagine the terror of someone who has been trafficked to the UK, often for sex or slavery. They may not speak English; they may not be aware of their legal status; they will have little trust; they will be fearful and in poor health; and they will be worried about going to the authorities in the first place because of worry about their own status.

There needs to be careful thought about how that can be managed. The Minister and the Government have been helpful in saying that victims of human trafficking will be exempt from charges. They have been very clear on that, but much concern has been raised about how to identify those women and help them come forward. What the noble Lord said was helpful, but he needs to say more.

I return to the question of what this means and the complications that other noble Lords have raised. What is the Government’s definition of success here? If their policy is successful, health services will be able to check the eligibility of those who are entitled to free healthcare and, consequently, charge those who are not eligible. The second aim is to draw to the attention of the authorities those who present and do not have a legal right to stay in this country. The point about public health is particularly pertinent here, and I would like to know what the Government are thinking on this and how they identify the problems.

If identifying those who are not legal migrants and reporting them to the authorities means that those people are less likely to report for healthcare, what are the implications for public health if someone has an infectious disease that needs treatment or a condition where a lack of early intervention means more expensive, or even emergency, care? We heard about the case in Northern Ireland. Another case I have been aware of is that of a young woman who had asthma. Simple preventive treatment would have been cheap and easy, but the care later on that was necessary because she had not had that treatment was very dangerous to her health and expensive to the public purse.

The question of far greater cost comes back to the issue of mental health cases. I take the point made by the noble Baroness, Lady Barker, on this. If someone has mental health problems, they are likely to be a danger to themselves and to others. I am sure that it is not the Government’s intention that those people should go without healthcare, but we have to recognise that there are specific obligations in those cases. I am seeking from the Minister an explanation of what thought the Government have given to these issues prior to bringing the Bill forward, and what plans are in place to deal with these kinds of issues regarding the most vulnerable—the victims of crime, those who could be a danger to themselves or to others, and those who could present at even greater cost to the public purse if they do not get the treatment that they need? I am particularly interested in the Minister’s response on this matter.

Immigration Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Wednesday 5th March 2014 Lords Chamber

[Baroness Smith of Basildon]

That is really helpful and I apologise. I shall reread Hansard. I am sure that I did not doze off at that point.

As other noble Lords have said, we should focus on improving the efficiency of those initial decisions and making sure there is little need for appeals in the first place, because that is what will create confidence in the system, which itself will reduce the number of appeals. I am raising these points again now because it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging this inefficiency. I know the Minister pointed to an administrative review, but we have heard strong arguments today and previously that that is not the way forward. He said that the person reviewing the decision will not be the person who made the original decision but a cohort of immigration staff drawn from those who already make decisions. However, my understanding is that the Home Office already has a system whereby, in some cases, senior staff already review certain decisions. I cannot, therefore, see how an administrative review would be particularly significant if a number of decisions are currently overseen and reviewed by senior staff. Given the very high proportion of appeals allowed, which in most cases result from caseworking errors, it is clear that this problem with the quality of decision-making has to be addressed. Should that not be looked at by someone who is completely independent for there to be a real confidence in the system?

The noble Lord, Lord Avebury, raised the issue of the Government’s reliance on judicial reviews as recourse. A number of noble Lords today and previously have raised concerns about the cost. Not only do judicial reviews cost more than appeals but costs can be sought from the other party, and damages may be claimed but the Government have to recognise—indeed, they do so in their assessments—that the number of judicial reviews is likely to increase. The noble and learned Lord will be aware of the comments by the Joint Committee on Human Rights that the Government’s proposals on judicial reviews do not take into account the committee’s comments and do not look at how,

“the Government’s other proposals to reform both legal aid and judicial review itself”,

impact on the ability to seek judicial review.

I can understand why the noble Baroness has brought forward her proposal but I do not really understand why it had to be a stand-alone debate, considering that we had a similar debate on Monday, when her points could have been made. I see that the noble and learned Lord agrees. However, there is a strong case to oppose this clause as a whole, and I see this amendment, which is similar in principle to our proposal on Monday, as a fallback position and not the solution. I also hope that the Minister will recognise that there are great concerns about the principle and implementation of the Government’s proposals, and will look at them again, given that there have now been two lengthy debates on this issue.

[Baroness Hamwee]

My Lords, before my noble and learned friend responds, perhaps I may make it clear—I thought I had at the start of this debate—that I am not seeking to debate Clause 11. This amendment proposes inserting a separate clause after Clause 11 and is intended to be constructive on administrative review, not destructive of Clause 11.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Tuesday 14th January 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, our amendment adds a new ground for the issuing of a closure notice that would allow premises to be closed in cases of sexual offences against a child. It is largely a preventive measure but would be an important extra tool in tackling this problem. No one could have failed to be distressed and horrified by the reports late last year of groups and gangs of men who abused young and vulnerable girls. They did so by a cold, calculating and sinister grooming process, sometimes involving drink and drugs, which allowed them to sexually and physically abuse these children. So cleverly warped are these groomers’ tactics that the children—and vulnerable adults—may not even realise at the time that they are being abused and exploited.

We have an opportunity in the Bill to provide more ammunition for those trying to prevent this shocking and evil crime. I hope noble Lords will allow me to put on record my gratitude to those who brought this matter to my attention: Tony Lloyd, the police and crime commissioner for Greater Manchester; Colin Lambert, leader of Rochdale Council; and Jeanette Stanley, Rochdale’s safety community manager. They have given me some hugely important and useful evidence. I know they have been in contact with Home Office Ministers as well. Their experience and knowledge of what works in tackling such crime and where the gaps are in legislation is invaluable. I know that the Minister shares my concerns on this issue and I hope that the Government will share my view of the suggestions that these people brought forward to try to tackle this problem.

They are seeking an immediate closure power where there is a safeguarding threat. Greater Manchester Police has evidence of properties that are unregulated and unlicensed being used in a variety of ways to prey on vulnerable adults and sexually exploit children “behind closed doors”. Yet the only powers the police have—and will have in legislation if the amendment is not passed—is to close premises on anti-social behaviour grounds. Now that the police have evidence of the shape and extent of this problem, that is no longer enough. In Rochdale, they have been able to use the current anti-social behaviour closure order power on a number of occasions to good effect because they also had sufficient evidence of recent and repetitive anti-social behaviour incidents. However, the main reason for obtaining a closure order was because of safeguarding concerns involving children and young adults. That power allows a short-term disruption to the abuse while the police can then take longer-term permanent action.

Norman Baker, as Home Office Minister in the other place, has responded to the suggestion outlined in our amendment that closure powers exist under the Sexual Offences Act 2003. He is absolutely right—they do—but they apply only to prostitution and pornography, not to protecting children and vulnerable adults. The powers do not allow for the swift action that is needed. However, perhaps the most serious problem with that approach is that to use a sexual offences order, evidence of a criminal offence is needed. The grooming method of such gangs is quite sophisticated in a warped way, and many victims of child rape and sexual abuse do not complain. They may even believe that their abuser is their boyfriend and that they have sex with his friends to please him. While in the clutches of these men, the victims cannot even recognise that they are being abused.

This is a simple amendment. It obviously does not solve all the problems but it will make a difference. Tony Lloyd and Councillor Colin Lambert first wrote to Minister Jeremy Browne on 4 October last year seeking this help to tackle the problem. I put on record my thanks to the noble Lord, Lord Taylor of Holbeach, as Minister, for his willingness to discuss these issues with me. I really hope that the Minister can accept this amendment but I would be happy for him to take it away to consider further, and for us to bring something back at Third Reading. I beg to move.

[Baroness Hamwee (LD)]

My Lords, the noble Baroness raises a hugely important matter. I was glad to hear her say that she would welcome the Minister taking the matter away, but I have to say that my reaction would be to wonder whether, as she says—and I am not doubting what she says—there are gaps in our legislation that mean there are problems for the authorities. If that were the case, I should have thought it necessary to make changes to the Sexual Offences Act. I question whether the changes should be made in this Bill, given that the offences she is talking about are of a very different order from the nuisance and disorder that this part of the Bill is addressing.

There is also the difficult issue of taking steps to prevent something that might be a criminal offence—we are talking about something rather different in this part of the Bill—without having gone through prosecution and so on. I have not had a discussion with the Minister —he might be about to take the ground completely from under my feet—but it seems that we are talking about something very important but rather different.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I am extremely grateful to the Minister for his response in this regard. It contrasts quite starkly with the comments from the noble Baroness, Lady Hamwee, who seemed to be much against taking action in the Bill. However, his response—

[Baroness Hamwee]

My Lords, I apologise to the House if I was not clear. I was entirely sympathetic with the thrust of what the noble Baroness was seeking to do but was suggesting, precisely as the Minister has said, that the Sexual Offences Act might well be the place to do it.

[Baroness Smith of Basildon]

It came over rather more negatively than that, but the Minister’s response was very useful and I think it showed a clear determination to take action on this. I am very happy to enter into discussions with him and we should be able to find a way to bring this back at Third Reading. It is an urgent issue: children are being abused today and will be abused tomorrow and the day after, and we have a real opportunity here to make a difference. I am grateful to the Minister for seizing the opportunity and I look forward to our further discussions.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Monday 25th November 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I have some sympathy with the points made by the noble Lord, Lord Greaves, although the words of his Amendment 34A may not find too much favour in the light of the previous debate, when it refers to,

“making speeches whether or not amplified”,

given the discussion that we have had about amplified speeches outside your Lordships’ House.

There is an important criterion on which, I believe, the noble Lord is seeking reassurance from the Government. People have a democratic and legitimate right to protest in public places, and we would really not want to see these powers misused, if people are campaigning or lobbying for a particular cause or issue, although I do not think that that is the Government’s intention. It would be helpful to have some comment from the Minister. Can he give reassurance that there are no circumstances in which this provision would be allowed to curtail legitimate debate, campaigning or protest? As the noble Lord, Lord Greaves, said, there are other ways in which such issues should be dealt with. We all know of cases where laws have been used for purposes other than those intended by Governments. As the Minister will appreciate, it creates huge suspicion when provisions seem open-ended. I hope that he can give reassurance and be very clear on that, perhaps stating specifically in guidance that the intention would not be to limit in any way the democratic responsibilities of the citizen.

[Baroness Hamwee]

I will not waste the Committee’s time by repeating the arguments, but this is an instance where guidance would not be enough. Unless we can have hard examples of where the provision might be properly used to restrict assembly where there is no other provision to deal with any of the problems, it would not be adequate for guidance to say something like, “The Government would not expect this to be used in such and such a situation”. This is a power that I would be very unhappy to give to anyone because of its misuse, unless there was a very good reason to allow it here and they have no other tools.

[Lord Taylor of Holbeach]

I am really grateful for this debate. It has been very helpful to the Committee to be able to talk in these terms. I draw noble Lords’ attention to Clause 55 and how it is constructed. I am not a parliamentary draftsman and sometimes legislation is difficult to read or understand, but here the tests that are required on public spaces protection orders are quite clear and explicit.

We all agree that rights to freedom of expression and peaceful assembly are important, and we would not wish to interfere with them in this Bill. Noble Lords are right to seek from me reassurance on this. What the amendment seeks to do is not as important as the probing that lies behind it. The legislation sets a very high test that must be applied before a public spaces protection order is used, as I will explain. The first condition of the test, in Clause 55(2), states that the activities must have had a detrimental effect on the quality of life of those in the locality or it is likely that such activities will occur which could have this effect. The second condition is that the activity is persistent, unreasonable and is justified by the restrictions on the notice. I think that gives us a pretty clear idea of the sort of activity which a public spaces protection order is designed to cover.

I consider it highly unlikely that, in the case of a peaceful protest, or holding placards or handing out literature, or talking to people, even the first condition could be met. I do not see that as being a condition which any court would allow.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Monday 25th November 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I think that the noble Lord sought to assist me, and I want to respond to his answer because he has actually puzzled me even more. He said, both before and after receiving enlightenment from the other end of the Chamber, that he really cannot conceive of the circumstances where it would not be appropriate to consult the other authority. He says that the provision was put in on Report in the other place. However, that does not really answer my question. Can he give me any circumstance where he thinks it would not be appropriate? That might help me to understand why it is there.

[Baroness Hamwee (LD)]

I wonder whether I should come in on the same issue to allow time for reflection. As I said to the Minister through his officials, I did not move my amendment because I assumed that there must be legislation which would require both authorities to agree. I read “consult” in this clause as meaning consult not around the outcome of actual closure but about the things surrounding it. I thought that, rather than taking the Committee’s time, I would simply not move it. Perhaps it would have been better if I had.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Wednesday 20th November 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, this is a probing amendment on a subject not too dissimilar from the issue raised by the noble Lord, Lord Marlesford. Our new clause is about corporate anti-social behaviour. Other than the community protection order, which includes the power to close premises that cause severe problems associated with anti-social behaviour, the Bill’s emphasis is not on the corporate but on the individual.

Too often the public feel, sometimes justifiably, that although they as individuals have to obey the law or be taken to task, companies seem not to be targeted until things get very serious and action is taken that could lead to their closure. A corporate anti-social behaviour order would be targeted at actions by a corporation or company that are deliberately socially harmful, and cause harassment, alarm or distress at a local rather than a national level. It would not target legitimate businesses or business activities—even businesses that some might regard as unpalatable. For example, there is a lot of talk about payday loans, and some people do not like gambling. The order would not focus on business activity, and there is no intention to comment on business activities that may cause distress at a national level; it would be used only where local disregard for the public and for the environment could cause harassment, alarm or distress.

The purpose of such an anti-social behaviour order would be preventive. It could identify low-level behaviour and seek to prevent it increasing in frequency or becoming more serious, as is often the case. Some of the examples I shall give tie in with the comments about litter in the previous debate—examples such as takeaways and other businesses that fail to deal with rubbish outside their premises, or premises that are unnecessarily noisy. I remember, when I was a Member of Parliament in the other place, dealing with a business in a residential neighbourhood. It had to have delivery vehicles coming and going—but at 5 am, did those vehicles really need to leave their engines running, causing considerable distress to those who could not sleep, or were woken first thing in the morning?

There could also be a pre-sanction stage, with an acceptable behaviour contract, to deal with problems. I think that such a provision would be welcomed by businesses that do their best to deal with such problems, but find themselves up against other companies that cut corners and do not fulfil their obligations to local communities. An anti-social behaviour order for local businesses would complement the community protection order by offering sanctions targeted at businesses, which might be used before more serious action that could lead to closure of the business was taken.

A corporate anti-social behaviour order would be business-friendly, because it would nip the problem in the bud and give the business the opportunity to deal with it before it faced far more serious action. It also gives the opportunity for preventive measures; I am thinking particularly about littering and noise pollution. At the moment the legislation focuses on individual behaviour—that is where the community protection order comes in—rather than on the actions of companies. It is a preventive measure, designed to be more effective, more helpful and more friendly towards business. It could also lead to better engagement between businesses and the local authority, which would have a reason to hold early discussions about problems that could arise and how it would deal with them, and also to better relations with local residents, by nipping any such problems in the bud before they get too serious. I beg to move.

[Baroness Hamwee]

The noble Baroness raises an interesting point. I have been wondering about other examples, and the one that immediately came to mind was the noise of aircraft coming into Heathrow in the middle of the night, which is a big issue in my area—but perhaps the order is not intended to be as extensive as that.

I have a serious question for the noble Baroness, which is whether it is appropriate for criminal offences to be created by regulations. That is in effect what subsection (3) of the proposed new clause would do, as it states:

“The Secretary of State shall, by regulations, set out the circumstances under which an offence has been committed”.

I appreciate that this is a probing amendment, so I do not want to be too tedious about it, but that struck me as a point of principle that one might want to consider.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Smith of Basildon and Baroness Hamwee

Monday 18th November 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I think I can move this amendment fairly briefly. It concerns applications made for the issue of an arrest warrant for the breach of an IPNA. One of the things that strike us when we look through the clauses is that there is no timescale from the time when the application is made for an arrest warrant to when it would be issued or the application rejected—the Bill is completely silent on that issue. My attention was drawn to this by the report of the Home Affairs Select Committee, when it reported on delays in county courts, saying:

“We heard that this was likely to severely slow down the process for dealing with ASB”,

and the committee said how concerned it was. Local authorities have also expressed concern about delays in the county court system. In Clause 9(2), it seems that most of the applications would be to a county court; the only time it would go to a magistrates’ court would be if it was a youth court that had granted the IPNA. In other cases it would be a county court, and in some cases the High Court. If there were delays in the county court system, that would be a serious blow to the idea of moving swiftly—one of the major reasons that the Minister has given for having IPNAs rather than anti-social behaviour orders—in the introduction of these new injunctions.

There is another point that is not covered by the amendment but is also relevant to this. All the legislation should be subject to post-legislative review after five years. That seems quite a lengthy time on an issue like this where, if there is a problem, it will have to be dealt with much more quickly than waiting five years to see if there is in fact a problem. With issues of anti-social behaviour rising so high in public concern—and indeed in the Government’s concern, given the Bill before us—it would not be reasonable if we passed legislation but were then not able to enact it because of the delays that are currently being seen in the county courts.

The proposal to the Minister is that we look at this issue first and the Government make an assessment of, and issue guidance on, how long it should take for a county court from the moment it gets an application for an arrest warrant for a breach of an IPNA to when that court has to make a decision. If the Government could issue that beforehand, that obviously would speed up justice, which I understand is the purpose of this measure. That fairly briefly sums up and describes why we are putting the amendment forward. I beg to move.

[Baroness Hamwee]

My Lords, I have Amendment 21C in this group. It is extraordinarily inelegantly drafted, but I hope that the Minister is aware of my concerns that lie behind it. Where a respondent has certain requirements imposed on him as part of the IPNA and these have rehabilitative or therapeutic aspects—indeed, in many cases one would hope that they did—the further proceedings should not be taken in such a way as to prejudice the benefit of those requirements. My straightforward question—I was going to say “simple” question, but it might not be quite that simple—is to ask for some assurance from the Minister that will help to allay that concern.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Hamwee

Wednesday 12th December 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I was hoping that my noble friend Lord Macdonald would be in his place as he was a little earlier. I hope he is not stuck in a lift or something. I want to put on record on his behalf, on my behalf and on behalf a number of people who are becoming quite vocal, my wholehearted support for this amendment, and I speak for a number of colleagues. I put my name to the equivalent amendment at the previous stage and, as I recall it, the noble Lord, Lord Mawhinney, said, “For heaven’s sake, even the Liberal Democrats have this as party policy”. Well, we do; we would have gone further, but we are happy to go as far as is before us tonight.

[Baroness Smith of Basildon]

My Lords, as we have heard, it is nearly a year since the Government launched their consultation on public order policing and whether the word “insulting” should be removed from Section 5 of the Public Order Act. In the Committee on this Bill—a good five months after the close of the consultation—the Minister said that he hoped that at Report stage, the Government,

“will be able to put forward the Government’s considered view to the House”.—[Official Report, 4/7/2012; col. 781.]

Since then, the Government had a further five months to come to a decision, and yet—unless the Minister is going to make an announcement this evening—even at this stage, we still have not had a public announcement from the Government about their position, or about the findings and evidence from the consultation which your Lordships’ House has asked for.

I say to the Minister that this is typical of this Bill. From the National Crime Agency framework document, the debate we had earlier and the panel report on drug driving, evidence that would have assisted this House in consideration of the Bill and been welcomed by noble Lords for scrutiny has not been available to your Lordships’ House. It does this House, and those proposing the amendment today, a grave disservice that the Government are so tardy bringing forward information that is crucial to this debate. I share the frustration of the proposers at the Government’s failure to provide this information for the debate today. Are the Government finally able to state their considered position now or will we have more evasion and more waiting for a consultation that closed many months ago?

I understand some of the difficulty for Ministers; it lies in the nature of coalition Government. The Liberal Democrats, at their spring conference this year, passed a motion to repeal this part of the legislation. We also know from names on the amendment that a number on the Conservative Benches—as we heard this evening—also support removal. The campaign is led in the other place by David Davis MP. If there is so much interest in this issue, why have the Government not brought forward the results of the consultation in order to have a proper, informed debate on the merits of the issue, rather than leaving it to campaigners?

I am not suggesting for one moment that the law as it stands is perfect in its application; we have heard numerous examples why it is not. I appreciate that there are grave concerns that there are cases where its use by the police and the CPS has been disproportionate and, indeed, ridiculous at times. There is a very strong argument for better guidance on the application of this clause to ensure that its use is always appropriate and effective.

However, we are concerned that the evidence of the need for its removal has not been presented to your Lordships’ House. We do not want to risk removing a useful tool which currently enables the police to address homophobic and religiously offensive issues. There is still a huge grey area when it comes to these issues.

Many of your Lordships have said that they received no correspondence in favour of “insulting” remaining; I did receive such correspondence. I tried to look at it in balance with the other correspondence I had. YouGov polling estimates that over 400,000 lesbian, gay and bisexual people a year experience homophobic insults, abuse and harassment. Furthermore, 77% of victims of homophobic crimes and incidents do not report them to the police because they have no confidence that the police will or can do anything. I question whether it is right to take tools away from the police which they could use properly to address these sorts of hate crimes and what message that will send. We need a proper debate on whether the existing law is the right approach. It has to be done on an evidential basis, which is why I find it totally unacceptable that the Government apparently have evidence which they are not bringing forward.

We have heard examples of disproportionate and ridiculous use of the legislation, but there are also examples of its proportionate use. I have been sent these by Stonewall. I am not normally shy and retiring or very modest in my approach, but I am loath to read out the insults and the behaviour that was hurled at a Mr Braithewaite, when he intervened for a fellow passenger on his train, Heather Williams, who had been accosted by a third passenger—the defendant—for being transsexual. The language that was used and the behaviour towards them led to a prosecution and a successful conviction under Section 5 of the Public Order Act. I do not believe anybody in this House would want to tolerate or allow that kind of behaviour to go unpunished.

If there are to be changes in the law, there should be a full examination of the evidence. We want to ensure that people like that are properly punished for their crimes. The letter today from the Director of Public Prosecutions should be fully considered in the light of what he has to say, and the Government’s response to their consultation.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Hamwee

Tuesday 27th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, my heart sank when I saw the enormous number of government amendments to the Bill. It lifted quite a lot when I realised that the first amendment, on secondment, and the next, on compensation for specials, were in response to points that I made at the previous stage. Then to bookend it, as it were, was the amendment to the Equality Act to which the noble Earl has just referred. I am grateful to the Government for taking those points on board.

I have two amendments to the government amendments, both of which are quite small points. They both refer to Amendment 56. The first would take out proposed new sub-paragraph (7), which provides for determination by the Secretary of State as to the two circumstances set out. I hope that the Minister is aware that my question is on whether the determination should be a matter for the court or the employment tribunal, which is likely to be the relevant tribunal. It occurs to me that the Home Secretary could be a party to the proceedings in question and it seems to deserve a little explanation as to it always being proper for the Secretary of State to determine these questions.

The second amendment is to the provision in proposed new sub-paragraph (12)(b) that deals with,

“the reference to the assumption of a third party function”,

which is limited to the three functions listed. I should be grateful if the Minister can confirm that these are the only cases. My reason for asking is that proposed new sub-paragraph (12)(a) uses the term “includes” and (12)(b) uses the term “is”. Is there no assumption of a function unless there is also a transfer of staff? That is what I read into this, but I may well be wrong.

[Baroness Smith of Basildon]

My Lords, I confess that when I see a list of almost 50 government amendments that the Minister describes as technical and drafting, I realise that I am becoming quite cynical as I get older. By and large they are technical and drafting amendments, but I have some questions, some of which the noble Earl has sought to address in his comments. However, if I may, I will press him on a couple of points for an explanation.

On government Amendments 10 to 12, compensation of NCA specials is addressed. The amendments take out “NCA” with regard to compensation. The Minister said that that is because they may be compensated from elsewhere. I am not quite clear where the elsewhere would be that would allow for expenses and compensation to NCA specials. Does he envisage a greater role for the private sector to pay them, for example? I do not know, but is he able to elaborate further? That was clearly not envisaged during Committee or when the Bill was first drafted. I am unclear why the Government have felt the need to change it. Who else will compensate or pay the expenses of NCA specials?

I also thank the Government for dealing with the comment made by my noble friend Lord Rosser about clarifying the position on which Secretary of State would apply regarding transport. That was helpful. As regards the transitional provision, I am sorry that this was not in a separate group of amendments because that might have been helpful to your Lordships’ House. We discussed this in some detail during earlier stages of the Bill and I have asked Parliamentary Questions about the transitional costs and how the transition should be arranged. The concept of the transition from the predecessor organisations to the NCA is extremely important.

--- Later in debate ---

[Baroness Hamwee]

My Lords, Amendment 18 brings us to the issue of the framework document in Schedule 2. I am afraid that I am still having difficulty in following paragraph 4 of that schedule. Paragraph 4(1) tells us that the Secretary of State must consult the director-general in preparing a framework document and obtain his consent before issuing it. Paragraph 4(2) then states that the director-general’s duty to have regard to the annual plan does not apply in relation to the two functions I have just spelled out. My amendment refers to the functions of responding to the consultation and giving consent, the ones in question, and I ask the Minister whether it spells out what is provided—I am sure that he will tell me that it is not necessary—or whether the paragraph means something else. Perhaps the Minister will say also whether the annual plan or the framework document takes precedence in this context. I beg to move.

[Baroness Smith of Basildon]

My Lords, I shall speak to Amendments 19 and 20. I did not wish to raise this issue again—I apologise to the Minister for doing so—but I had hoped that the Government would have come forward with something a little more substantial than they have done to date. I am slightly confused and disappointed that not all noble Lords had been able to get access to the outline framework document earlier in the debate. I know the Minister intended that they should have access and it was disappointing that the document was not available.

Schedule 2 to the Bill stresses the importance of the framework document and outlines what it does and how it does it. The framework document explains almost everything about the National Crime Agency. It is a far-reaching document, is hugely significant and includes provisions for NCA finance and governance. The goalposts have been moved on more than one occasion since we first discussed this issue. We understood originally that we would have the document by this stage, but then it became only the outline. We are now at Report and all we have is the outline, which is inadequate for scrutiny. The fact that we have so little information about it may have had an impact on the previous decision in this House not to include counterterrorism within the National Crime Agency.

I looked through the document to see how much of an outline it really is. I have already referred to the issues around the NCA management board. The outline framework document basically lists what provisions will be in the framework document, including: that the director-general will establish and chair a management board; a description of the board; the composition of the board; and that further committees may be established by the board which must include audit and risk and nominations and governance. As for working in partnership, the document contains only a bullet point about the NCA’s use of immigration or customs facilities. As for scrutiny, transparency and information, there are three bullet points: the first is on scrutiny; the second on the duty to publish information in accordance with publication arrangements, which will be set out in an annexe and which we also have not seen; and the third is on public information handling and complaints.

Late Night Levy (Application and Administration) Regulations 2012

Debate between Baroness Smith of Basildon and Baroness Hamwee

Monday 8th October 2012 Grand Committee

[Baroness Hamwee]

My Lords, during the passage of the Act we debated the inflexibility regarding the fact that the levy, if it is applied, applies only to a whole local authority area, notwithstanding that the area is most unlikely to be homogenous. Few local authorities comprise only town centres; in fact, I am not sure that any do—I cannot think of any. Few local authorities comprise only rural areas. Open areas include suburbs, and they are very different from the central entertainment district area. Indeed, town centres in the same local authority area can be quite different. However, that is a matter of history—living history, to be sure, but it is fixed.

I understand that work has progressed and continues to progress on the exemption categories, and that is welcome, but exempting by type rather than geography does not deal with all the issues. One possible category floated during the consultation was “business improvement districts”, but Birmingham has been mentioned to me as having seven or eight BIDs, only two of which focus on the night-time economy, so it is not possible there to look at all the BIDs as if they raise the same issues.

I was quite startled to see that the number of responses to the consultation mentioned by the Explanatory Memorandum was 631, so I went on to the Home Office website—our old friend—to see what the Government’s response was to this. The first response from the website was, “There are too many pending search requests”. The noble Baroness, Lady Smith, looks as if she had a similar experience. I do not want to keep on whingeing but it is worth putting on the record that these things are noted. I rather doubted that the problems were a result of all the people who were planning to speak in this debate. I do not know whether the issue was too many requests overall or just to a particular part of the site, but the problems with the Home Office website are still being felt. However, I eventually got through and I am glad that I did because, to put the positive point, I could see that a lot of work had been done by the Home Office in pursuing the detail of these regulations and their application. With regard to BIDs, the government response indicates that we will have to await guidance on the eligibility of particular BIDs for exemption.

Given the concern not to have local authorities exercising their judgment over whether particular premises are operated responsibly, I was interested that premises within a business improvement district may be exempt if the BID has,

“a satisfactory crime and disorder focus”.

I am interested in how that judgment is to be made and in the point about discretion. Community premises must not only have had the designated premises supervisor requirement removed but have,

“demonstrated that they operate responsibly”,

which again seems to require a judgment by the local authority. I welcome the discretion given to licensing authorities in this area, but I wonder at the rather patchy provision for the application of that discretion.

On more specific points regarding the regulations—I warned the Minister that I was going to raise these points—under Regulation 7.3, the licensing authority has a discretion with regard to the reduction when the late-night authorisation lapses or is prohibited. Why should it have a discretion? Secondly, in Regulation 4.2, premises under construction are to go into one specific band, band C, apparently regardless of size. I would be grateful if the Minister could explain the thinking behind this. I would have thought that there would be a valuation and the attribution to a band after construction and before the premises were operating, so I do not understand the need to attribute a band when premises are under construction if they are not operating, nor why it should be the same band. There is no cost of the sort which the late night levy is aimed at meeting—no night-time economy cost.

Thirdly, under Regulation 4(4), when there are two or more hereditaments, the rateable value is not the aggregate, which would seem to be a common-sense response to that. However, I am sure that there is some more sophisticated thinking behind that. The noble Baroness ended by saying that she hoped that noble Lords would accept that this was a proper way to implement the provisions of the primary legislation. I certainly assure her that for my part I do.

[Baroness Smith of Basildon]

My Lords, I welcome the noble Baroness, Lady Stowell, to her new responsibilities. If the change from her previous responsibilities was done in an attempt to avoid my questions, I must commiserate with her as I think that we will face one another across the Dispatch Box on a number of occasions. I welcome her to her new position as she always takes great care to look at and respond to issues raised by noble Lords. I am grateful to her for her explanation of these regulations as I wish to raise some concerns and questions with her.

Few could disagree with the necessity of trying to find ways to support a safe night-time economy and take action against irresponsible drinking, which is a serious nuisance to others and can deter people from using other facilities in the evening, as the noble Baroness will understand. It is a hard issue to tackle. The previous Government looked at the establishment of alcohol disorder zones, which the noble Baroness tactfully did not mention, but that did not achieve the desired result. I have concerns around the detail of these regulations and wonder whether they will make a significant difference. Even the Government’s own impact assessment identifies a serious risk that they will not be used very much. Of the 349 licensing authorities in England and Wales, the Government’s own impact assessment gives a best estimate of 16 and a likely range of between eight and 40 using early morning restriction orders, so there is a question mark over how effective these measures will be if they are not used very much. The impact assessment also estimates that the loss of late-night alcohol sales in the area affected by the EMRO is a net total of £9.3 million but says that this is subject to considerable uncertainty. That makes me question whether the measure we are discussing is all that it is cracked up to be. Will it do the job that needs to be done? I am not necessarily criticising the measure. I merely ask that question as I recognise how difficult it is to address this issue. As the noble Baroness said in her opening comments, the measure is only a tool that can be used by local authorities if they wish to do so.

I wish to raise a number of questions. Given the uncertainty reflected in the impact assessment, to which she has referred, I welcome the Government’s commitment to review the operation of the regulations and the levy. I experienced problems trying to access information on the Home Office website. Unfortunately, we will frequently return to that point. Over the weekend I was not able to access the Government’s response to the consultation. However, I was able to ascertain that the Government intend to review and assess the levy after a minimum of five years. I welcome that commitment to review the operation, which is a positive step forward. However, a minimum of five years could mean that it is reviewed in 10 years’ time. What timescale does the Minister envisage we are talking about before a review takes place?

The Government have responded to the LGA and ACPO submissions to the consultation. The two bodies questioned the 30/70 split. The Local Government Association was concerned about the admin costs. It said that if there is a 30/70 split, with 30% of the revenue going to local government and 70% to the police, admin expenses would of necessity come out of the 30%. I want to clarify that because my understanding of what the noble Baroness has said is different from my understanding of the relevant documentation. My understanding was that the Government had accepted the representations from the Local Government Association that the 70/30 split would be net and that the admin expenses would be taken out prior to the 30/70 split, not out of the 30%. If the Minister could clarify that, that would be helpful. That creates a problem, because it was said at the beginning that the police would get at least 70% of the amount. Now it is going to be 70% of the net amount—less than 70%—it having been said that it would be at least 70%.

It would be helpful if there was some guidance on what would be reasonable expenses to come out of the levy. What can local authorities expect to be able to identify as reasonable charges? It would clearly be unacceptable if one local authority was charging five or 10 times as much as another on admin before the money taken by the levy was spent on services such as the Minister identified. Will there be any guidance on what are reasonable admin expenses, will that information be published and will there be any monitoring of how the money is spent on both admin and the provision of services?

I think that what the Government are seeking to address is that both local authorities and the police incur additional expenditure when there are problems caused by late-night drinking and anti-social behaviour. Publication and complete openness about where the money is spent would be useful for those businesses which will be paying the levy. They are currently already paying licensing fees and council tax, which they have been told for many years includes a proportion for the police. If the expenditure figures are published, it will be clear to them why the additional tax is needed—or otherwise.

One reason why I ask for that is that we are all aware of the financial pressures on local authorities and on the police. The danger is that the levy will not be an additional source of revenue for local authorities or the police but one to make up revenue that they have lost where they have cut services, so that it will be not new but replacement expenditure.

Judith Woodman is a councillor in Cardiff who in March was the deputy leader of Cardiff Council with responsibility for community safety. Over Christmas, they conducted something called Operation Mistletoe in conjunction with the police. She said how fantastic it was and that she wanted it to continue, but that it came at a cost. With further cuts to follow to the council’s budget, she could not say that they would definitely be able to carry it on. That is why, she said,

“the Late-Night Levy might prove very useful for us”.

So she is saying that this is not a new initiative that the late-night levy will fund; it is replacement expenditure for something that is to be cut. I am concerned that all businesses in the council area will be paying for something caused by a few when everybody is already paying.

In Essex, by 2014, my local police force will be losing one in 10 of our frontline officers. The previous Minister, the noble Lord, Lord Henley, said that the Government were introducing the levy for a clear and specific purpose, but if it is a success and money comes in, the temptation to plug existing spending gaps will be forced on the police and local authorities. That is why publishing that information and making it easy to access— that means not on the Home Office website—will clarify the justification for the levy: that it will be something extra, not replacement funding.

How many additional police officers does the Minister expect to be employed as a result of the levy? I appreciate that we do not know how many local authorities will be involved, but the Government’s estimate is between eight and 40, expecting about 16. If 70% of the money that comes in will be spent by the police, how many additional police officers can we expect to see employed as a result?

I am also slightly puzzled about the system of exemptions. It seems to apply to all licensed premises that have a late licence between the hours of 12 and six—or whenever the levy applies. What if those premises are open late at night only a couple of times a year on special occasions and for special events, not counting New Year’s Eve, which I know is covered? Say that there are two or three occasions on which they want a late-night licence. Will they be forced to pay in the same way as those that have a regular late-night licence? Will premises that have no history of ever causing problems, which consider that through their licence fees and their council tax they already pay for these services, also be expected to pay? So this concerns those that have an occasional licence to open late and those where there is no history of problems being caused.

The reason why I raise this is that the Minister was very specific in her opening comments about irresponsible licensed premises. My understanding is that the levy would be there to target irresponsible licensed premises but, if I understand correctly what has been said now, it would cover all licensed premises for those specific times when they were open in a council area. Would it include restaurants, for example? Also, if the Minister could say anything about the adjustments to payments in the order, I would be very grateful, because I got completely lost in that part of the order. Some further explanation would be helpful.

Justice and Security Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Hamwee

Monday 9th July 2012 Lords Chamber

[Baroness Hamwee]

I am saying that the committee should consider whether there is a reason not to hold a meeting in public. My approach to this would be to say that each move into closed session should be considered quite positively. I look at it the other way round; it is a different philosophy and I accept that.

I have provided in Amendment 14—these are probing amendments—that a determination could be made to apply to more than one meeting. I cannot believe, given the committee’s obligation to the public, that every meeting should be held privately unless there is a good reason to hold it in public. As I say, it is a difference in philosophy. Amendment 14 is, as I say, probing, and I accept that a decision could be taken to cover more than one meeting.

Amendment 15 is rather different. I think that there is a place for something like a public question time. The noble Baroness’s amendment suggests annual hearings with the heads of the agencies and the Secretary of State, and I think that that is a good idea. In both of our amendments, we suggest that the public should have a hand in setting the agenda of the committee. I beg to move.

[Baroness Smith of Basildon]

My Lords, I shall speak to Amendment 17 and then perhaps say something about Amendment 15. The noble Baroness, Lady Hamwee, might have misunderstood our intention in Amendment 17, because I think that our intention differs very much from hers in Amendment 15. Amendment 17 is essentially, as she said, intended to probe the idea of public hearings. This idea has had a mixed response in your Lordships’ House in both today’s debate and earlier debates. What is vitally important is that the public should have confidence in the system of oversight of our intelligence and security services. I think that that has been quite clear in the early amendments to the structure and kind of committee that we are seeking. As has also been previously mentioned, the ISC itself has admitted that reform is needed urgently. One of the areas of reform that it stresses is the need to improve public confidence in its work and in its ability to function as a strong and independent check on the work of the intelligence community. Just as we would say that justice does not just need to be done, it must also be seen to be done, the scrutiny role of independent checks and balances does not just have to be done, it must also be seen to be done in order to create public confidence. I have to say to the Minister that, looking at the legislation before us, I do not think that the Government have given enough thought to the role that visibility can play in building up that kind of public confidence.

We have heard mixed responses to the public hearings held in the United States by the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence with the heads of the intelligence community. Those hearings in public session—many of them televised—are a significant aspect of this issue and have produced some important public admissions by the agencies’ heads. However, I think that there is a risk of them being seen as stage-managed, as we heard earlier from the noble Marquess, Lord Lothian.

We have to recognise that a large part of the committee’s work involves hearing evidence of a highly sensitive nature that cannot safely be publicly disclosed. However, it is important to move towards a system where public hearings are considered not automatic but more routine. I do not go quite as far as the noble Baroness, Lady Hamwee, although I think that we are going in the same direction, as I do believe that such hearings should be accepted more and be more routine. Therefore, Amendment 17 would expressly provide for the ISC to hold public hearings where it is judged that there is no significant risk of the disclosure of sensitive information, as defined by the Bill, or information that risks undermining the interests of national security. The noble Lord keeps chastising me for the wording of the amendment but I hope that he understands the theme that we are putting forward here. In effect, the amendment sets the same threshold for judging the risk of the disclosure of information in public hearings as the Bill does for the disclosure of information to the committee.

Perhaps a more appropriate set of conditions could be used here to ensure that public hearings do not lead to the jeopardising of our national security or of the work of the intelligence services. That is something that I would be happy to discuss. However, it is the principle of routine public hearings that we are trying to establish with this amendment. Similarly, annual public hearings with the heads of the intelligence services, as provided for in Amendment 17, would, as they do in the United States, send a very public signal about the accountability of our intelligence community to Parliament through the ISC.

There is perhaps just a slight difference of emphasis in our amendment compared with the noble Baroness’s Amendment 14, in that we do not think that public hearings should be automatic. However, I am slightly curious about Amendment 15 and the suggestion of a public question time. I wonder whether that would change the role of the ISC. It seems to me that its role is very specific—that of oversight of the intelligence community and intelligence agencies—and I am not sure what would be gained by putting its members into the public eye, with them being questioned by the public, as I think is the noble Baroness’s intention. I should have thought that public confidence would be achieved by members of the Intelligence and Security Committee being seen to do their job robustly and ensuring proper scrutiny and oversight of the intelligence community. This seems to be more about oversight and scrutiny of the intelligence committee by the public, although I should have thought that that was a job for Parliament rather than for the public. I should be interested to hear the noble Lord’s comments on the amendments.

Sexual Offences Act 2003 (Remedial) Order 2012

Debate between Baroness Smith of Basildon and Baroness Hamwee

Thursday 5th July 2012 Lords Chamber

[Baroness Smith of Basildon]

The impact assessment states that the figures relating to the reconviction rate of sex offenders covered a 25-year period, during which a quarter were reconvicted of a sexual offence. By the noble Baroness’s understanding, there seems to be a period of less than 15 in which they do not reoffend, but the impact assessment says that a quarter reoffend within 20 to 25 years of conviction.

[Baroness Hamwee]

My Lords, this is a terribly complicated area and I am sure that noble Lords are, like me, struggling to follow the sequence of events. It would be really helpful if the noble Baroness were to write to us afterwards, because this involves quite technical details and I, for one, am having trouble putting them into the context of the original offence and what the automatic and discretionary consequences of a conviction might be.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Hamwee

Wednesday 4th July 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I will speak to our Amendments 148AA and 155EA. These are probing amendments into what I think are very serious issues. The Minister will recall that I raised concerns about these matters at Second Reading. I listened with great care to what the noble Lord, Lord Avebury, had to say, and I fear I may duplicate some of his comments, but only where they are worth duplicating and I think it useful to your Lordships’ House.

Our amendments would delay the commencement of Clause 24 until the Independent Chief Inspector of Borders and Immigration has completed a report on entry clearance decision-making within the UK Border Agency for family visit visas, which retain the right of appeal. The Minister will recall that I drew some comparisons at Second Reading with the issues that had arisen where the right of appeal had already changed in other visa applications.

It is worth rehearsing some of the difficulties, delays and problems that we have seen with initial decision-making in family visitor visa decisions. In 2010-11, 38% of the appeals against family visitor visa decisions were successful—over a third of the decisions were overturned on appeal. The noble Lord previously said that that was because in many cases people had provided wrong information. I will come on to that point but I do not think it is relevant in many cases. This seems to be a systemic problem and the Government cannot address the problem of inaccurate and wrong decisions being made by trying to change the rules. By removing the right of appeal, you cannot sweep under the carpet the fact that so many decisions have been appealed successfully.

Family visitor visas are an important way for many British communities to preserve family and cultural links with other countries. The kinds of applications we are talking about are for family members to attend family occasions such as weddings and birthdays; there can be urgent cases, many with a compassionate element, such as needing a visa to visit a sick relative or even attend a funeral. These are not the kind of people who are going to bring vexatious appeals against the Government. Appeals are brought in these cases to right a wrong, to overturn a wrong decision.

It is worth listening to what the Independent Chief Inspector of Borders and Immigration has said on this issue. In 2011 he reported that in 33% of cases he reviewed, the entry clearance officer had not properly considered the evidence that was submitted. Why should that 33% of people who have not had their applications properly considered be forced to resubmit an application because of chronic administrative errors within the UK Border Agency? It is penalising those who have been refused through no fault of their own but through poor decision-making.

As I mentioned earlier, the Government argued that,

“63% of appeals are lost entirely because of new evidence introduced at the appeal stage”.

That comment was made by the Immigration Minister, Damian Green, when he gave evidence to the Home Affairs Select Committee. I again look back at what John Vine, the chief inspector, noted in his report: in the 16% of cases reviewed, applications had been refused on the basis of a failure to provide information of which the applicant could not have been aware at the time of making their application.

It is true that in many cases, submitting a new application is quicker than appealing a decision, but the Government have failed to address the fact that, when a decision is appealed it allows, particularly in those highly urgent and exceptional cases, Members of Parliament and advocates to intervene directly with the Home Office on their behalf and expedite decisions. If they do not know, or are not aware, as the noble Lord, Lord Avebury, said, what information is required before submitting the application, that is a poor reason for the Government to change the rules. The wrong information was submitted, and it should be very clear to applicants what that information should be.

When a wrong decision has been made, it is a matter of integrity that it should be addressed. The UK Border Agency should also consider when decisions have been wrongly made and address the problems within the organisation that has allowed that to happen. To remove appeal rights of applicants who have been wrongly refused because of Home Office errors is unfair. It also leaves applicants with no indication of how they should amend their application the second time around, and the possibility that the same errors or omissions could continue to be made. It also neglects the added burden of cost that many applicants face. The cost of an appeal is roughly the same as an application but the costs of making an application go beyond the fee. I am sure that the Minister and other noble Lords will be aware that family members travel hundreds of miles and cross borders to submit in person an application and the documents required. It is significant that when refusals are made on the basis of an allegation that an individual has made a false statement in the application, it can result in that individual being refused entry for up to 10 years. If there is no right of appeal it leaves no way to address the issue. Making another application cannot undo the fact that the individual has been banned for the next 10 years. That is a significant failing in the clause as it stands, particularly when we see how many errors are made in decision-making.

Most importantly, removing the full appeal rights removes pressure on the Home Office to improve the situation. We want a reduction in errors in decision-making. It is bad for the Home Office, and it is certainly bad for the applicant. I raised in a Question in your Lordship’s House not that long ago the report from Sir John Vine: A Comparative Inspection of the UK Border Agency Visa Sections that Process Applications Submitted in Africa. He looked at four areas. There was some good news and some improvements, but I found it fairly shocking. The most difficult part was when he said:

“Despite my making recommendations in previous inspections to help the Agency improve, I found that little progress had been made in a number of areas. This is especially frustrating considering the Agency has accepted the recommendations and yet I continue to identify the same issues”.

How frustrating is that for the chief inspector of the UK Borders Agency whose sole purpose is to want the agency to improve its decision-making? Yet, he is making the same recommendations; the agency agreed those recommendations and that there should be a plan to address the issues. He then has to make the same recommendations the next year and the year after that. He then said:

“In summary, I found performance varied significantly across the four posts inspected in the Africa region. I was disappointed to still find a clear need for improvement in the quality and consistency of decision making. I have made 12 recommendations, a number of which I have made before, in previous reports”.

It is very difficult to understand why this kind of measure is being brought in when we know that the decision-making is inadequate and not up to scratch.

There is another, slightly different side to this. Something caught my eye earlier today concerning the failings in visa controls and considerations. It was about not family visas but other visas. Mr Vine’s inquiry looked at 100 visa applications from Pakistani nationals and found that there were cases where entry was granted when it should not have been and cases where it was not granted where it should have been. Both are equally wrong and I am sure that that is an issue that the Minister wants to address.

I find it very difficult to understand why the Government want to remove the right of appeal for family visit visas when they know that the decision-making is inadequate, that many mistakes are made and that the consequences for those individuals are severe. The amendments that we are dealing with today are intended to find out how the Government intend to improve entry clearance decision-making within the UKBA and ensure that individuals are not unfairly penalised because of systemic failures if their full right of appeal is taken away. As things stand at the moment, significant harm is being caused to those individuals because of the quality of the decision-making.

[Baroness Hamwee]

My Lords, I do not want to repeat absolutely everything that the noble Baroness and my noble friend have said, but I am afraid that there will be a little repetition and I hope your Lordships will understand that it goes to emphasise the seriousness of the points being made. Both previous speakers referred to the knock-on effect on future applications of clearance being refused, with the applicant’s integrity being impugned in the reasons for refusal. I think that we should take that very seriously.

There have been many complaints about the lack of clarity regarding what is required at the application stage, with the real reason for refusal not being revealed until the appeal hearing. If that is the case—and I have no reason to doubt what we are hearing—it is bound to lead to additional evidence being presented. That is a simple consequence and not something for which we should be criticising applicants. Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort.

Like other noble Lords, I am keen to know whether the Government have confidence in the internal review process. Regarding confidence, the noble Baroness asked whether improvements will be made. I would add: are the Government confident that improvements have been made since the chief inspector’s review in December? Unless they have, we are presented with a difficulty regarding this proposal. I simply conclude by saying that it is quite clear that there is a problem, and it is quite clear to at least three speakers that this is not the solution to the problem.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Hamwee

Wednesday 20th June 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, this is one of a number of amendments that we have put forward regarding the framework document. Although we do not have a copy of it, a number of questions still need to be addressed.

The Government are getting a bit of a reputation for having a cavalier attitude to the reform of some of the institutions of this country and for bringing forward legislation before the fine details have been worked out, which would enable this House properly to scrutinise the Bill and its implications. The Health and Social Care Bill saw quite an axe being taken to the whole landscape of the NHS before the details were worked out, which started even before parliamentary approval had been obtained. The detail was not ready when the Welfare Reform Bill came before Parliament. With this Bill, not only do we not have the framework document but the Government are still consulting on the plans for community sentencing. We hope that we can recommit the Bill into Committee at the end of the Committee stage and, outside the normal order of amendments and clauses, put another new Clause 23 into the Bill at the end.

The Government announced their intention to create a National Crime Agency around two years ago but we still do not have the document that tells us what the organisation will do and how it will do it. That document will set out the detail of how the agency will be arranged. It is clear that there will be specific operations. One of the most important things in that document will be the relationship with other sections of the police service. Unfortunately, we do not have the strategic policing requirement. The Government say that that will set out a clear framework for how PCCs and chief constables relate to the NCA and, crucially, how they balance local against national priorities.

Looking around your Lordships’ House, I see that I am a relatively new Member of this fine institution—for just under two years—but it has been clear to me from when I first entered your Lordships’ House how seriously the House takes its scrutiny role. Not to have so much information to assist us in discussing the detail of the Bill is pretty shoddy and not the way that we ought to legislate.

Even in this Bill, I am prepared to think the best of the Government and assume that they must have worked out some of the detail of the architecture, even if the document itself is not ready. I do not believe for one moment that the Government came to this House with a Bill not understanding what it will look like at the end when they create a new agency. It would be helpful if, even without the document, the Minister could give the House more detail about what it will contain. Amendments 28 and 29 place a requirement on the Secretary of State to produce the framework document by statutory instrument. That is not ideal, because having that document now would inform the rest of our discussion, as several noble Lords have said. The noble Baroness, Lady Hamwee, at our previous session in Committee, raised issues that should be in the document. Our discussion then was hampered because we did not have it. In the absence of the document being available for scrutiny at this stage, the Home Secretary should place the document before Parliament as an order. That will enable at least some proper scrutiny by both Houses.

[Baroness Hamwee]

My Lords, I did indeed raise questions about the contents of the framework document. Before we started our debate on Monday, when I was going through the amendments and got to this pair of amendments, I put a tick against them. I have deleted the tick for reasons which will not be very welcome to my noble friend. I am not convinced that an order would allow us to debate the framework document in the way that we would like to see. We need a lot of detail about it. As we all know, the drawback with an order is that we cannot amend it. Methods of operation, methods of exercising functions and administration, including—I have already questioned this—governance and finance, are very big issues.

I therefore hope that the Minister will, if not today, soon be able to tell us that his “due course”—not just his, I am not impugning him—arrives soon, so that we can understand a good deal more. Although I well understand the approach that the noble Baroness has taken, I am not entirely sure that it takes us as far as many of us would like to go.

--- Later in debate ---

[Baroness Smith of Basildon]

We return to the framework document. This paragraph is a puzzle to me. This brief amendment deletes the requirement for the Secretary of State to obtain the consent of the director-general before issuing the framework document, because I am unclear why the Secretary of State would need to depend on the consent of the director-general in order to publish the document. It would seem to show greater courtesy and concern for the views of the director-general than for Parliament. There is no provision for parliamentary oversight at this stage. It is right and appropriate that the Home Secretary should consult the director-general, but if I understand the purpose of the framework document correctly, looking at Schedule 2, it is ultimately about the detail of the architecture of the National Crime Agency. It is not about operational matters, and it does not seem appropriate for the director-general to have a veto. I return to the point I made in earlier discussions about the blurring of the line between what is operational and what is strategic. The framework document is a strategic document. This is a probing amendment to see whether the Minister can explain why the director-general should have a veto over the Secretary of State publishing the framework document. I beg to move.

[Baroness Hamwee]

My Lords, I am glad that the noble Baroness tabled this amendment. It took me back to reading the paragraph and realising that I did not fully understand it. I am sorry that I have not been able to give the Minister notice of my question, which is: can he in some way translate paragraph 4, particularly sub-paragraph (2)? Does it mean that the framework document takes precedence over the annual plan? Paragraph 4(2) says:

“The Director General’s duty to have regard to the annual plan … does not apply in relation to functions under sub-paragraph (1)”.

Those functions are about being consulted on, and giving or withholding consent to, the framework document. It is a little difficult to understand how the two work together. It may be that we are being told that one is more important, or simply that one is more overarching—which the framework document should be, I guess—than the other. The relationship between the two will obviously be important and not only because there are different consents and consultation arrangements for the different items.

--- Later in debate ---

[Baroness Hamwee]

In moving Amendment 32, I shall speak also to Amendment 33. The first deals with the framework document and the second with the annual report. In both cases, my amendments would delete the words relating to publication,

“in the manner which the Secretary of State considers appropriate”.

I wondered whether those were intended to be qualifying words. They clearly are qualifying, but they suggest a limitation. I simply look for assurances that the spirit of what we would all understand by “publication” includes something energetic and proactive and that that will be reflected in the practical arrangements that will be made. So this is really only a probing amendment in both cases. I beg to move.

[Baroness Smith of Basildon]

My Lords, I had some interest in the amendment that the noble Baroness, Lady Hamwee, has proposed. There is some question mark over why there is discretion in this regard, and it would be helpful to hear from the Minister on that. The Minister will understand my concern that there is a growing acceptance these days that everybody has access to the internet and that everything can be obtained from the internet. A large number of people in our population do not have access to the internet. More than that, as the Minister knows, the Home Office website is extraordinarily difficult to access. So I would have great reluctance in seeing a measure go through that gives discretion to the Home Secretary to publish on a website that most people cannot access most of the time.

--- Later in debate ---

[Baroness Hamwee]

I shall speak also to Amendment 41. There are three further amendments in the group in the names of the noble Baroness, Lady Smith, and others, all of which deal with payments. My two amendments concern the paragraph in Schedule 3 which deals with what is the “appropriate amount”. Paragraph 29 of Schedule 3 deals with what is to be paid under paragraphs 26 and 27 by the director-general and the police in the different circumstances. My amendment would extend that to payments under Part 1 of Schedule 1, including paragraph 4, which states:

“The NCA may charge a person for any service provided at the person’s request”.

I am not necessarily suggesting that this is the right way to go about it but I am probing how that charging should be dealt with.

Amendment 41 suggests that there is a way other than an amount agreed or an amount determined by the Secretary of State; that is, to provide for a scale or a formula in advance to be applied generally. As I understand the arrangements for mutual aid between police forces, there are governing scales and arrangements. It seems to me that it would be much better to have these things sorted out in advance rather than to have any sort of haggling being applied at the time. I certainly do not imagine that it would leave people with anything other than a rather sour taste if the Secretary of State had to step in and determine the amounts. I beg to move.

[Baroness Smith of Basildon]

My Lords, our amendments on this issue perhaps come from a different direction but they still try to address a similar concern that we have. We are looking at different ways to resolve this. The noble Baroness, Lady Hamwee, is right that if an agreement on payment cannot be reached between two parties, to seek resolution or determination by the Secretary of State does not seem the correct way to behave. Throughout this Bill, we have sought to remove the Secretary of State from day-to-day operational issues and this proposal would bring the Secretary of State back into those kinds of issues.

There is also a conflict of interest or at least a divided responsibility. There is a concern that one thing that will happen with the NCA and the charges and costs involved is that, given that funding may not be adequate to the task, particularly with additional responsibilities coming in, some extra funding or support may be sought from police authorities, particularly in cases such as this. The Home Secretary has a direct responsibility for the funding of police forces across the country. It seems somewhat difficult, therefore, if there is a disagreement between a local police force and the NCA, that it should be the individual who has responsibility for funding local police forces who should seek a determination on that. The noble Baroness, Lady Hamwee, said something about that creating a bad feeling or some difficulties, and I certainly think that it would in this case.

The noble Baroness and I may not have found exactly the right format here. We are suggesting an advisory body, but I am not wedded to any particular way of doing this. It seems inappropriate for the Secretary of State to be making those decisions. To labour a point made by the noble Baroness, Lady Hamwee, about a protocol in the framework document, that may be what the Minister is considering—but we do not know, because we do not have the framework document. It is clearly inappropriate for the Secretary of State to be the arbiter. We would like to see some other way to resolve difficulties or disputes and we are suggesting an advisory board.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I wonder sometimes whether the noble Earl lives in a slightly different and more benign world than I do. Several times during the course of today’s debate, whether it has been on the power of direction and payments, he has said, “We hope that it will be okay, we can’t see ourselves using this power, things should work out okay”. Real life is not like that; disputes occur. This idea of having a backstop and saying that it does not matter if it is not perfect and not okay because it will hardly ever be used is not really good enough. We need to have some kind of process. I do not know whether the noble Earl took on board what I said. I am not wedded necessarily to an advisory board, but I think that we need a process that is not the Secretary of State or, as the noble Earl calls it, a backstop.

There will from time to time be disputes on payments and the power of direction, and we need to have a process that this House is confident can deal with any of those problems that occur—and not just think that it will be okay because it will not happen very often. I think that we will pursue this at a later stage. There may be further discussions in Committee, but at this stage I am happy not to press my amendment.

[Baroness Hamwee]

My Lords, I share the noble Baroness’s concerns about this. I wrote down “amicable?”. The noble Earl referred to a backstop, but the point of providing a very clear framework—although I do not want to use that term—and making clear provisions is that they are clear and, if things are not amicable, one knows where to go. It had never occurred to me until an earlier group of amendments that the old pals arrangement might apply to anything under this Bill—but perhaps I am just too cynical.

On Amendment 40, as I understood the noble Earl’s remarks, the NCA will be subject to certain formal Treasury guidelines. He is nodding at that, but I wonder whether he might share those with Members of the Committee after the debate. It may not be appropriate to go into all the detail now, but it would be very helpful to be clearer about this before we return to the matter, as I suspect we will.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Hamwee

Monday 18th June 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, in many ways this is quite a difficult Bill to scrutinise fully. Some information relating to the Bill is missing today: we do not have the framework document, which would be extremely useful as your Lordships consider how the NCA board will operate.

Our amendments today are intended to bring some sense to the Government’s words, which is not necessarily reflected in the Bill, and to ensure that the new National Crime Agency has operational independence. The Government have quite rightly gone to great lengths to emphasise that the NCA—the body that takes over from the Serious Organised Crime Agency, the National Policing Improvement Agency and CEOP—will be operationally independent, but I am somewhat puzzled about how this is going to operate. SOCA was, of course, a non-departmental government body, or NDGB. The NCA has been classified as a non-ministerial department, or NMD, and that is similar to other bodies such as the Crown Prosecution Service and Her Majesty’s Revenue and Customs, as the Home Office fact sheet identifies. This is significant and appropriate because, as a rule, NMDs are considered to be more independent of Government. I quote from a research paper on the Public Bodies Bill from the House of Commons Library, which says that they,

“answer directly to Parliament on issues where it has been deemed appropriate to remove executive political interference”.

Examples given by the Library in the other place are Ofgem and the UK Statistics Authority. Both the Crown Prosecution Service and HMRC, which the Government give as models for the designation of the National Crime Agency, have corporate governance structures which have a strategic direction and strategic accountability exercised by a board, and that board reports to the Secretary of State. That is true currently for both SOCA and the NPIA. The benefit of that is that it ensures and preserves the agency’s independence from Government, but it also maintains, quite rightly, the ultimate strategic oversight by Government.

In this Bill, the Government seem to be proposing a departure from that. Under current proposals, the NCA will have no board and instead will be governed by just one individual, the director-general, who will report directly to the Home Secretary. The Home Secretary’s responsibilities are to set the strategic priorities for the NCA. He will authorise the director-general’s annual plan of strategic and operational practices and priorities. The Secretary of State has the power to appoint and fire the director-general and the power to designate the director-general’s operational powers on the direction of an advisory panel, and we shall return to both those issues in later amendments.

It seems to us that this kind of structure is not conducive to operational independence and is at odds with other NMDs that the Government have set up and support. Compared with Ofgem, the Financial Standards Authority, the Serious Fraud Office, the Office of Fair Trading, the CPS and HMRC, the National Crime Agency would be unique in its level of direct ministerial oversight and influence. There seems to be some contradiction within the Bill and within the Government’s priorities because although they are talking about devolving operational power to the police, they seem to be retaining more power, but without responsibility, to the Secretary of State. The Bill does not seem to do what the Government have said they intend, which is to put power in the hands of the police force. It is very much a top-down structure and, if one were being unkind, one could say that the Secretary of State is happy to devolve responsibility but, at the same time, is centralising power.

The amendments that we have tabled today have two impacts. Amendment 1 will remove the responsibility for direction and control of the NCA from the director-general, and instead the NCA board will have responsibility for the strategic direction and control of the NCA, while the director-general will be responsible for the exercise of the NCA’s operational and administrative functions. Amendment 4, which is quite long, sets out the structure of the new NCA board and is modelled on the existing governance structure of SOCA. We would be quite happy if, at some later stage, the Government were to bring back this amendment to look at the detail of it. There may be items within it that are not as appropriate for the NCA as they are for SOCA. However, broadly speaking, it seems to us that the governance arrangements for SOCA, with a board structure, would be more appropriate for the National Crime Agency than the sort of direct-line accountability to the Secretary of State for one individual, the director-general.

I suppose we are seeking answers to a number of questions from the Minister, in trying to understand why the Government have proposed this structure. Can the noble Lord explain why the Government believe that there are benefits to the National Crime Agency from not having a board? The organisations that are to become part of the National Crime Agency have had boards, so the Government should really explain that and justify their reasons for having a different governance structure in this case. Why does the NCA have to be directly accountable to the Home Secretary, unlike the Serious Organised Crime Agency? Again, that is a departure from current practice.

Given that the Government have rightly changed the structure from that of the Serious Organised Crime Agency, which is a non-departmental government body, to a non-ministerial department, can they give any indication of the model that they used for the NCA? I am not aware of any significant body that is a non-ministerial department and that has the same kind of structure reporting directly to the Secretary of State, but not through a board. In looking at these areas, it would be very helpful if the Minister were to give some explanation of those issues and say whether he will consider looking again at governance and introducing a board, which we think would be the appropriate way to manage and run the agency.

[Baroness Hamwee]

My Lords, we have tabled Amendment 5 in this group. The amendment, in my name and that of my noble friend Lord Thomas of Gresford, does not seek to change the architecture of the proposal—I thought I would get that in quite quickly because my noble friend hates the term. It is not a governing board and accountability would still be that of the Secretary of State. However, it is good practice to provide infrastructure and support in this sort of situation.

The Home Office itself has a supervisory board. I would have taken my amendment from that, had I been able to get into the Home Office website at any time when I tried over the past few days. The form and function of the model is, I suppose, not very different from that of other government departments, so I looked at CLG, another department with which I am fairly familiar. The description of its roles seemed to be very much what I was looking for. It tells us that:

“The Board’s role is to advise and support ministers on the operational implications and effectiveness of policy proposals, focusing on getting policy translated into results”.

It refers to leadership, effectiveness, accountability, and sustainability—that is, sustainability in the sense of taking a long-term view about what the department is trying to achieve.

“The board advises on, and supervises, five main areas: Strategic Clarity … Commercial Sense … Talented People … Results Focus … and … Management Information”.

Those are listed with descriptions that I will not trouble your Lordships with this afternoon, because I think the CLG website is pretty accessible. I am not wedded to any particular model but I am wedded to good governance. In 2012, as has been the case for some years, the private and voluntary sectors have had to focus very much on governance, and I think that a new government agency should focus on it too.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I have Amendment 21 in this group and it concerns a more general point. I do not know whether—how did my noble friend Lord Attlee coin it?—the law of inverse speaking time will apply here but I think that it should.

Clause 2(4) provides that:

“An order under this section may amend or otherwise modify this Act or any other enactment”.

My amendment, which may not be perfect in its drafting but is, I think, clear enough in its intention, would add,

“for the purposes of counter-terrorism functions”.

My noble friend Lady Thomas of Winchester is here for the next debate and I had not warned her about this, but I will set her, as chair of the Delegated Powers Committee, on to the Minister if the Government do not acknowledge that there is something in this.

[Baroness Smith of Basildon]

My Lords, I listened to the noble Lord, Lord Alderdice, with some care. As noble Lords know, I have maintained an interest in Northern Ireland issues, having spent a number of years as a Minister there. I find it very difficult to understand how the Government can proceed with issues that affect Northern Ireland, particularly in this area, if there is not agreement from the First Minister and Deputy First Minister or discussions have not been held with David Ford, the Minister for Justice.

This is a sensitive area and I appreciate that, as the noble Lord, Lord Alderdice, said, these things can take some time to resolve when the Executive in Northern Ireland meets. Decisions by the Executive may not always be speedy, but the passage of the Bill will not be speedy either in that the Committee stage will continue after the Summer Recess. I hope that the Minister will take on board the comments of the noble Lord, Lord Alderdice, which we support. We think that the First Minister and Deputy First Minister should have an opportunity to comment on this and I hope that some agreement can be reached prior to moving forward with these clauses.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Hamwee

Monday 18th June 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I think that Amendment 23 can be dealt with quite shortly. Clause 3 provides for the Secretary of State’s determination of the NCA’s strategic priorities, and our amendment would provide for her to lay a report before Parliament upon such a determination.

Schedule 2 deals with publication of the framework document and annual report but the strategic priorities seem to be of a sufficient importance that reporting them should not wait for the annual report. I cannot immediately see that they would be part of the framework document, although I may have misread that. Perhaps the Minister can reassure me about publication of the strategic priorities, which I assume will be a matter for public consumption. If this is not done through the sort of arrangement that my amendment proposes, how will it be done? I beg to move.

[Baroness Smith of Basildon]

My Lords, I have some sympathy with the noble Baroness’s contribution because the strategic priorities seem to be a bit of a puzzle. A key part of what the NCA does must be that the public and everyone else can understand the strategic priorities of this organisation. When you look through the Bill to see what the role of the NCA is, the description is extraordinary broad. It has the function of,

“gathering, storing, processing, analysing, and disseminating information that is relevant to any of the following … activities to combat organised crime or serious crime”,

and,

“activities to combat any other kind of crime”,

or “exploitation proceeds investigations”.

That is an extraordinarily broad area. It covers all kinds of crime, yet the strategic priorities are a very small part.

I looked to see whether there was something about the strategic priorities within the framework document. Like the noble Baroness, Lady Hamwee, I could not see it there. I am not questioning the right of the Secretary of State to determine those priorities: the Secretary of State should have that strategic oversight. But I am not clear what scrutiny there is and what form of publication there will be. Clause 3 states:

“The Secretary of the State may determine strategic priorities”,

including whether he or she wants to have priorities or not, and will consult strategic partners, the director-general and anyone else the Secretary of State thinks appropriate. It is extraordinarily broad.

If we then look at operations, it is clear that the strategic priorities play an enormous role in what the director-general then sets out in the annual plan of what the organisation is to do. I feel that we need more information about this. Will the Minister say something about the relationship between the strategic priorities of the NCA and the framework document? I am not clear how the two work together. If we look at Schedule 2, the framework document seems to describe the,

“ways in which NCA functions are to be exercised”,

and the,

“ways in which the NCA is to be administered”,

but that will depend on what the strategic priorities are. Some guidance and enlightenment from the Minister would be useful.