Immigration Detention: Shaw Review

Baroness Williams of Trafford Excerpts

Tuesday 24th July 2018 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, with the leave of the House, I will repeat a Statement made in the other place by my right honourable friend the Home Secretary.

“With permission Mr Speaker, I would like to make a Statement on immigration detention. As the House knows, our immigration system is made up of many different and interconnected parts. Immigration detention is an important part of that system. It encourages compliance with our Immigration Rules; protects the public from the consequences of illegal migration; and ensures that people who are here illegally or are foreign criminals can be removed from this country when all else fails.

Detention is not a decision that is taken lightly. When we make the decision to detain someone, their welfare is an absolute priority. The Windrush revelations have shown that our immigration system as a whole is not perfect and that some elements need much closer attention, and there are lessons we must learn. That is why I welcome the second independent review by Stephen Shaw into immigration detention, commissioned by this Government, which I am laying before the House today. Copies are available from the Vote Office and on GOV.UK. I am very grateful to Mr Shaw for his comprehensive and thoughtful report. It recognises the progress this Government have made in reforming immigration detention since his last report in 2016, but it also challenges us to go even further.

As the review notes, we have made significant changes to detention in the UK in recent years. Over the past three years, we have reduced the number of places in removal centres by a quarter. We detained 8% fewer people last year than the year before. Last year, 64% of those detained left detention within a month, and 91% left within four; and 95% of people liable for removal at any one time are not in detention at all, but are carefully risk-assessed and managed in the community instead.

In his report, Stephen Shaw commends the ‘energetic way’ in which his 2016 recommendations have been taken forward. He notes that conditions across immigration removal centres have ‘improved’ since his last review three years ago. We now have in place the adults at risk in immigration detention policy to identify vulnerable adults more effectively and make better-balanced decisions about the appropriateness of their detention. We have also strengthened the checks and balances in the system, setting up a team of special detention gatekeepers to ensure decisions to detain are reviewed. We have also created panels to challenge the progress on detainees’ cases and their continuing detention. We have taken steps to improve mental health care in immigration removal centres and we have also changed the rules on bail hearings. Anyone can apply for bail at any time during detention. In January, we further changed the rules so that detainees are automatically referred for a bail hearing once they have been detained for four months. All of this is good work.

However, I agree with Stephen Shaw that these reforms are still bedding in and that there have been cases and processes that we have not always got right. Now I want to pick up the pace of reform and commit today to four priorities going forward.

First, let me be absolutely clear that the Government’s starting point, as always, is that immigration detention is only for those for whom we are confident that other approaches to removal will not work. Encouraging and supporting people to leave voluntarily is of course preferable. I have asked the Home Office to do more to explore alternatives to detention with faith groups, NGOs and within communities. As a first step, I can announce today that we intend to pilot a scheme to manage vulnerable women in the community who would otherwise be detained at Yarl’s Wood. My officials have been working with the UNHCR to develop this pilot, which will mean that rather than receiving support and care in an immigration removal centre, the women will get a programme of support and care in the community instead.

Secondly, the Shaw review recommends how this Government can improve the support available for vulnerable detainees. Mr Shaw describes the adults at risk policy as ‘a work in progress’. We will continue that progress, ensuring that the most vulnerable and complex cases get the attention that they need. We will look again at how we can improve the consideration of Rule 35 reports on possible cases of torture, while avoiding abuses of these processes, and we will pilot an additional bail referral at the two-month point, halving the time in detention before a first bail referral. We will also look at staff training and support to make sure that the people working in our immigration system are well equipped to work with vulnerable detainees, and we will increase the number of Home Office staff in immigration removal centres.

Thirdly, in his report Stephen Shaw also rightly focuses on the need for greater transparency around immigration detention. I will publish more data on immigration detention, and today I have commissioned the Independent Chief Inspector of Borders and Immigration to report each year on whether and how the adults at risk policy is making a difference.

Fourthly and finally, I also want to see a new drive on dignity in detention. I want to see an improvement to the basic provision available to detainees. The practice in some immigration removal centres of having three detainees in rooms designed for two will stop immediately. I have also commissioned an urgent action plan for modernising toilet facilities and we will also pilot the use of Skype, so that detainees can contact their families overseas.

I am aware of the arguments made on time limits for immigration detention. However, as Mr Shaw’s review finds, the debate on this issue currently rests more on slogans than on evidence. That is why I have asked my officials to review how time limits work in other countries and how they relate to any other protections within their detention systems, so that we can all have a better-informed debate and ensure our detention policy is based on what works to tackle illegal migration, but is also one that is humane for those who are detained. Once this review is complete, I will further consider the issue of time limits on immigration detention.

The Shaw review confirms that we are on the right track in our reforms of immigration detention and that we should maintain a steady course. But Stephen Shaw also identifies areas where we could and should do better. My goal is to ensure that our immigration system, including our approach to immigration detention, is fair and humane. This is rightly what the public expect; they want rules which are firmly enforced, but in a way which treats people with the dignity they deserve. The changes that I have announced today will help to make sure this is the case. I commend this Statement to the House”.

My Lords, that concludes the Statement.

[Lord Rosser (Lab)]

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

which, he says,

“applies particularly to the Ministry of Justice”.

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

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


he goes on to say that:

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


He also comments that,

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

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

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

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

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

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

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[Baroness Hamwee]

But I will go on for the moment.

A pilot of additional bail referral is mentioned. Could we have more details of that? Could we also know the timescale that is anticipated for the review of how time limits work in other countries? I want also to mention prisons. What work do the Government anticipate as a result of this with regard to those who are held in immigration detention in prison?

I have said that I welcome the direction that this takes, but the Minister would expect me to be keen for more and faster work. However, I end by saying that I particularly welcome recommendation 1—unlike the noble Lord, I started at the end rather than the beginning of the report—which deals with promoting voluntary returns. It strikes me that that should have been very much part of the strategic plan for detention, which was the first recommendation in Mr Shaw’s first report.

I will end on a gentler note: I wish all colleagues a happy holiday, however long or short that may be.

[Baroness Williams of Trafford]

That sounds ominous —I am having my holiday.

I will go first to the noble Lord, Lord Rosser, who asked why there was a delay in publishing. I have probably trailed this on several occasions, when I said that Stephen Shaw had published his report and we were considering it and would respond in due course. We have rightly considered what is, as noble Lords have said, a big tome, before responding to it today. I hope that the noble Lord and the House do not see any conspiracy in the fact that it has been responded to on the last day.

The noble Lord said that the Government’s efforts had no impact on vulnerability. Stephen Shaw acknowledges real progress and said that it would be folly to abandon our reforms now. The adults at risk policy has certainly strengthened our focus on vulnerability and on the existing presumption against the detention of those who are particularly vulnerable to harm. However, I agree, as does my right honourable friend the Home Secretary, that we need to do more. That is why we will differentiate more strongly between vulnerable cases to ensure that the most complex get the attention that they need, building on the progress that has been made, to provide greater protection for the most vulnerable.

The noble Lord made the point that half the people detained are released and asked whether detention was therefore right in the first place. We would all like the proportion of detainees who are removed to be higher and we are tackling barriers to that. However, people may be released from detention for a wide range of reasons: by the courts, by appeal or by other legal proceedings, or there might have been a material change in their circumstances. That does not necessarily mean that the original decision to detain was inappropriate or wrong.

The noble Lord talked about time in detention being over six months. The Government totally agree that we should detain people for the minimum amount of time, consistent with their removal. Continuing challenges on documenting individuals and late appeals are an issue. The issues of foreign national offenders and public protection also remain important considerations.

I shall have to gallop through my replies. The noble Lord, Lord Rosser, referred to problems with additional beds. He will have heard today that my right honourable friend the Home Secretary has announced that there will be no more than two beds to a room. He also talked about the detention of pregnant women. Decisions on whether or not to detain individuals have never been predicated on absolute exclusions for any particular group. Being pregnant is not of itself a vulnerability, but I understand where the noble Lord is coming from on that. He mentioned indefinite detention. The Government are committed to getting more evidence on this issue into the debate. He will have heard what I said about my right honourable friend the Home Secretary carrying out a review into that and publishing its findings.

The time has run out extremely quickly. I do not know whether that is because noble Lords spoke for too long or because I did, but I have a number of unanswered questions, to which I will reply in writing and place a copy in the Library.

[Baroness Lister of Burtersett (Lab)]

My Lords, I return to the issue of pregnant women, which was of particular concern to your Lordships’ House when we considered these matters during the Immigration Bill—indeed, we voted for an absolute exclusion following Stephen Shaw’s original recommendation. In his report he quite mildly said that it would “assist” decision-making if the default position were to be an absolute exclusion of pregnant women from detention. The figures show that between July 2016 and January to November 2017 there were still 73 pregnant women detained, of whom 60 were released. For only 15 was there any case for detention. Will the Government look again at the question of an absolute exclusion?

On vulnerability, I am not quite sure I understand the Minister’s reply—I appreciate that she has had to move quickly. Have the Government accepted the specific recommendations 11, 12 and 13 in the report on adults at risk? In particular, will they consider the merit of the UNHCR vulnerability screening tool, which a number of voluntary organisations have recommended?

[Baroness Williams of Trafford]

I am glad that I have got some more time because the noble Baroness, Lady Lister, has nicely segued into some points I was going to make.

On pregnant women—I have made this point many times before—being pregnant does not of itself make you vulnerable. However, I understand where she is coming from.

On vulnerable detainees in general, the noble Lord, Lord Rosser, made the point that the policy was not working. In fact, Stephen Shaw described the adults at risk policy as a work in progress. We all agree that there is more to be done to make sure that the most vulnerable and complex cases get the attention that they need. As to rule 35, which reports on possible cases of torture and which noble Lords have criticised in the past, we will look again at how we can improve on it while avoiding abuse of these processes. We will pilot an additional bail referral at the two-month period—which comes back to the point made by the noble Baroness, Lady Hamwee.

The adults at risk policy requires a case-by-case assessment of the appropriateness of the detention of each individual. The policy means that vulnerable people are detained only when the vulnerability factors are outweighed by immigration considerations. So I do not agree with the noble Lord’s point that the policy is not working, but we need to continue with the progress that has been made so as to ensure that vulnerable people get the help that they need.

[Baroness Lister of Burtersett]

Will the noble Baroness tell me whether recommendations 11, 12 and 13 in the Shaw report have been accepted, because it is not clear from the Statement that they have? In particular, will the Government consider the merits of the UNHCR vulnerability assessment tool?

[Baroness Williams of Trafford]

Perhaps I might come back to the noble Baroness on this, because obviously I have pulled out some of the highlights of the report and I would not want to give her any details from the Dispatch Box that I am not certain about. So I will write to her on that point.

[Lord Deben (Con)]

My Lords, the Minister has been clear about what the Home Secretary is going to do. However, one of our worries about this report and indeed about the Statement is that it is a work in progress as if we are moving to a position where it will be very much easier to solve these problems. We actually live in a world in which it is going to become very much more difficult. The pressures on immigration will grow not just because of disorder elsewhere in the world but because of such major issues—I say this advisedly—as climate change. We are seeing more and more disruption which will mean that more and more people are being pressed to find somewhere else to be. What worries me about the Statement is that I do not believe that we have yet grasped the magnitude of the problem—the fact that it will get worse and worse and that we ought to be addressing it on a much longer-term basis if we are going to resolve this very serious issue.

[Baroness Williams of Trafford]

I should say to my noble friend that 95% of people are not held in detention at all. It is used only as a last resort where all the other possible mechanisms for removing people who should not be here have failed. On his point about climate change, I have heard various debates on that. I do not disagree with him that climate change will create more migration effects. However, the weather here over the past few weeks has made me think that people might not want to come here, either, because it is so hot.

[Lord Scriven (LD)]

My Lords, I recommend all noble Lords to go on a skim-reading course, because I got to page 100. Stephen Shaw gets to the crux of this issue on page 100. It is not about individual items but about the culture of the estate and the culture of the Home Office that needs to change. In particular, he asks across the estate, whether it be private or public sector employees who are involved, whether we will move to a position where, rather than just using a competency-based approach, we could adopt a values-based one when dealing with vulnerable people. That would help to solve the problems in a much more systematic way than just talking about individual programmes or training.

[Baroness Williams of Trafford]

The noble Lord frequently brings up this issue. I hope that he will derive some comfort from the fact that my right honourable friend the Home Secretary has made several Statements which to me underline the fact that he thinks that the Home Office should take a much more humane approach. We had this during the Windrush episode, which really threw into stark relief the fact that the Home Office is dealing with human beings, not cases. Today he has talked about some of the changes that he wants to make immediately, such as no more than two people to a room. I am also looking at lengths of detention. All of that says to me that he is taking a very human approach to this. I agree with the noble Lord and I presume that my right honourable friend the Home Secretary will agree with him as well. As I say, this is work in progress.

[Lord Dubs (Lab)]

My Lords, for some time there has been widespread concern about the detention of victims of torture—indeed to the point where people who have been tortured should surely not be detained under any circumstances. Is there anything the Government can do to speed up the process of looking at rule 35 and in the meantime alleviating the position for people who have been tortured and releasing them if that is at all possible?

[Baroness Williams of Trafford]

My Lords, I agree with the noble Lord. I have an updated position on torture. The vulnerable state in which victims of torture will present themselves has to be sensitively dealt with. That goes to what the noble Lord, Lord Scriven, said: we must treat people with humanity. It is paramount that any of the problems from their experience will be picked up immediately in the risk assessment that people enter into when they arrive in a detention centre. They will be dealt with sensitively and accordingly.

[Lord Marlesford (Con)]

I will quickly follow up the point made by my noble friend Lord Deben. The Statement says that,

“we will increase the number of Home Office staff in immigration removal centres”.

What is the present size of the staff? How many people are in the centres of the moment? How many illegal immigrants are there who are not in the centres?

[Baroness Williams of Trafford]

I have a feeling that we do not release the number of staff that we have in our detention estate, but I will double check. If we do I will get those figures to the noble Lord.

[Lord Paddick (LD)]

My Lords, with the greatest respect, we should be looking for outcomes, not outputs. We should be looking for results, not activity. So why is the number of people being detained for more than six months still increasing? I accept what the noble Lord, Lord Deben, said about this potentially being an increasing problem, but can the Minister tell the House what percentage of people are being detained, as opposed to those who are not? Is that percentage increasing or decreasing?

--- Later in debate ---

[Baroness Williams of Trafford]

The overall percentage being detained is decreasing—it is down by 25%—but I accept that there is an increase in those detained for more than six months. I hope that I explained that adequately earlier to the noble Lord, Lord Rosser, but it is not a satisfactory state of affairs.

Civil Partnership Act 2004 (Amendment) (Sibling Couples) Bill [HL]

Baroness Williams of Trafford Excerpts

2nd reading (Hansard): House of Lords
Friday 20th July 2018 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, first, I thank my noble friend Lord Lexden for securing this Second Reading debate. I join with other noble Lords in commending him for all the work that he has done over the years in promoting equality in society. I have listened with care to my noble friend’s impassioned argument around the financial and inheritance difficulties faced by siblings who live together, and the ensuing debate has had a very similar theme. It is very obvious that it is a matter of incredible importance to my noble friend and noble Lords who have spoken, but it is also about financial matters, as all noble Lords have pointed out in different ways.

In answer to my noble friend Lord Hamilton about this being a Treasury matter and the savings to the Treasury that might ensue, my noble friend probably will not be surprised that I do not have the figures for the revenue savings that might ensue from siblings being able to enter into civil partnerships. I utterly take his point about it being a Treasury matter.

[Lord Alton of Liverpool]

I am grateful to the Minister for giving way and I shall try to keep it very brief. When she replies to the noble Lord, Lord Hamilton, will she provide the figures to the whole House by putting that information in the Library? Will she also add to it from the Treasury what the deferred costs would be by putting off the inheritance duties that will come into the Treasury in due course? Will that calculation also be included in those figures, so we can see the whole picture when we come to consider this in Committee?

[Baroness Williams of Trafford]

I can certainly request them—and, if we have them, of course I will provide them. If we have figures on deferred costs, of course I shall provide them to the noble Lord, Lord Alton, and others.

Civil partnerships were introduced in 2004 to allow same-sex couples to formalise their relationships at a time when same-sex marriage was not available to them. This enabled same-sex couples to have their intimate couple relationship—as the noble Lord, Lord Collins, so articulately pointed out—recognised by society and the law, with the various benefits and responsibilities that that entails. Since then, the Government are proud to have introduced same-sex marriage, creating equality of opportunity between same and opposite-sex intimate couples in accessing marriage.

My noble friend’s Bill seeks to amend the Civil Partnership Act 2004, by altering the definition of who may enter a civil partnership, and thus the nature of civil partnerships themselves. This Bill would make it possible for qualified pairs of siblings to enter a civil partnership with one another—and, as the noble Baroness, Lady Barker, pointed out, what happens about any other subsequent children in that family or home? It would also give them exemption from the clauses within the existing Civil Partnership Act, which explicitly bar them from being able to enter a civil partnership, notably the forbidden degree of relationship criteria, and whether they are the same or opposite sex to one another.

This morning we have heard a number of poignant stories, mainly around financial or inheritance tax problems, and those involved certainly deserve our sympathy. However, I must make it clear from the outset that the Government have significant reservations about this Bill. My noble friend talked at length about the financial hardships facing siblings who live together upon one of their deaths, and I utterly sympathise with those affected. However, these have all been matters relating to finance and, in some circumstances, to inheritance tax. By attempting to extend civil partnerships to sibling couples, this Bill seeks the wrong remedy to the issue at hand. Quite simply, this Bill is not the appropriate vehicle for addressing the grievances expressed this morning.

At this juncture, I apologise to noble Lords who have mentioned the correspondence from Catherine Utley. There was a bit of uncertainty about which department should reply but, after my noble friend alerted my office to Catherine Utley’s letter, we have tracked it down, I have a copy of it here, and we will respond to it as soon as possible after the debate. I apologise for the unanswered correspondence.

Most noble Lords have referred this morning to inheritance tax. My noble friend Lord Lexden asked about amending laws on inheritance tax. As we know, the tax gives a number of advantages to married couples and civil partners over and above cohabiting couples or others, because it reflects the unique legal commitment that married couples and civil partners enter into. There are no plans to change the inheritance tax rules in this regard. Any extension of the treatment for married couples or civil partners would be a matter for the Treasury. Currently, I can give some figures. Less than 4%—so that is a very small percentage of estates—have an inheritance tax liability. That is because inheritance tax is payable only on an estate that exceeds the level of the nil rate band, which is currently £325,000. Of course, the residence nil rate band, if that is also appropriate, is £125,000. That can be claimed against the value only of an individual’s home, and only when that value is transferred to their direct descendants. The threshold for inheritance tax is £325,000; a 40% tax rate applies to property after this, but it does not apply to spouses or civil partners. In the current 2018-19 tax year everyone is allowed to leave an estate valued at up to £325,000 plus the new main residence band of £125,000, giving a total allowance of £450,000. So a person’s inheritance tax allowance rises by the proportion of their deceased spouse or civil partner’s allowance that is unused, meaning that a surviving spouse or civil partner can currently move up to £900,000 tax free. That is probably at the heart of what we are talking about today. I hope that that explains the inheritance tax provision at this point in time.

To go back to civil partnerships, they are far more than a legal contract for providing financial and other benefits to two people. They are a significant instrument, allowing same-sex couples to have their intimate partner relationship recognised by society and the law. This is especially pertinent as they were introduced at a time when marriage was not yet available to same-sex couples, a situation which we have now rectified.

I briefly acknowledge, as noble Lords have mentioned it, the recent judgment in the Supreme Court, which ruled that the fact that opposite-sex couples are unable to form a civil partnership, whereas same-sex couples can choose to enter either a civil partnership or a marriage, is incompatible with the European Convention on Human Rights. The Government are of course fully aware of this judgment and are giving it careful consideration to make the right decision about the future of civil partnerships. However, that is a very different issue to that of extending civil partnerships to sibling couples. The Supreme Court’s ruling relates to same and opposite-sex intimate partner relationships, which is a different type of relationship to that of siblings or other familial relationships, however stable and committed, as the noble Baroness, Lady Barker, and the noble Lord, Lord Collins, pointed out. It is clear that an exclusive, intimate and loving relationship between two people holds a unique and special place in society. Marriage and civil partnership were created for such exclusive, intimate, loving relationships.

My noble friend Lord Lexden, the noble Lord, Lord Alton, and the noble Baroness, Lady Deech, referred to the case of Sybil and Joyce Burden, two sisters who took a case to the European Court of Human Rights in 2008 to seek the right to enter a civil partnership with one another. The court ruled against the claimants, arguing that there was a clear distinction between intimate couple relationships and sibling and other types of familial relationships. The official report of the court stated that,

“the relationship between siblings was of a different nature to that between married couples and homosexual civil partners under the United Kingdom’s Civil Partnership Act. One of the defining characteristics of a marriage or Civil Partnership … union was that it was forbidden to close family members. The fact that the applicants had chosen to live together all their adult lives did not alter that essential difference between the two types of relationship”.

The Bill seeks to redefine the very nature of what a civil partnership is and who is, or is not, eligible to enter one. As the noble Baroness, Lady Barker, pointed out, it also raises the question of why, were it to be extended beyond the intimate couple relationship, it should be extended only to siblings and not to other long-standing relationships such as disabled parent and caring son or daughter, or even to more than two people. The noble Baroness also touched upon the difficulties of dissolution and the tricky problems of coercion that are sometimes found in families.

I have listened with care to the views of noble Lords this morning, and while I recognise the difficulties faced by the individuals which have been raised, I remain unconvinced that this Bill’s approach to altering civil partnership is the solution. The Government recognise and support committed, intimate partners who seek to have their relationship formalised legally and in the eyes of society.

ONS New Crime Statistics

Baroness Williams of Trafford Excerpts

Friday 20th July 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the Office for National Statistics has pointed to improvements to police recording and increased willingness of victims to report certain crimes such as sexual offences and domestic abuse as important factors in explaining trends in police recorded crime. However, there has been a genuine increase in serious violent crimes, so we have announced new laws to address them. The serious violence strategy represents a step change in the way that we respond.

[Lord Paddick]

My Lords, overall crime is increasing and violent crime, as the Minister has just said, is increasing at an alarming rate of more than 10%. The crime survey does not reflect this because of the underrepresentation of young men, who are predominantly the victims of violent crime. Nor are murder and manslaughter offences reflected in it. Crimes that are more complex to investigate, such as rape, are an increasing proportion of the total, requiring more police resources to investigate them. Meanwhile, the proportion of offences resulting in a court appearance fell from 11% to 9%, the lowest since comparable records began in 2015. Despite government claims to the contrary, central government funding for core policing continues to fall in real terms, with the number of police officers at the lowest level since comparable records began in 1996. At the same time, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services said in its State of Policing report of 2017:

“On the whole, the inspections we have carried out during the past year show that the effectiveness and efficiency of the police service are improving”.


When will the Government accept that the continued, damaging, real-terms cuts to core policing budgets are helping to drive up crime, and when will they reverse them?

[Baroness Williams of Trafford]

My Lords, I thank the noble Lord for his Question. I say at the outset that the Government understand that police demand is changing and increasingly complex, as the noble Lord said. That is why, after the Police Minister spoke to all forces in England and Wales, we provided a comprehensive funding settlement which will increase total investment in the police system by more than £460 million in 2018-19. That includes £50 million for counterterrorism, £130 million for national priorities and £280 million in force funding for increases in council tax precept income. He will have also heard the Home Secretary saying that he understands what the demands on the police have been, particularly over the last year with all they have had to deal with, and that he will prioritise this in the next spending round. However, the overall picture is that public investment in policing has gone up from £11.9 billion in 2015-16 to £13 billion in 2018-19. The workforce of the police has remained broadly stable over the past year. I add that many forces have indicated that they either plan to protect the number of police officers or will in fact recruit further in the coming year.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, we have seen an 11% increase in recorded crime, police officer numbers at a record low, only 9% of recorded crime resulting in anyone being charged or summoned to court, offences involving knives and sharp instruments up 16%, gun crime up 2% and murder and manslaughter up 12%. These are appalling figures. Will the noble Baroness tell the House what responsibility the Government accept for letting the public down so badly?

[Baroness Williams of Trafford]

My Lords, I have said that the Government recognise the genuine increase in serious, violent crimes. I have talked about our serious violence strategy. This very week my honourable friend in another place, Victoria Atkins, will be going out to schools to talk about the initiative #knifefree and the importance of young people not getting drawn into knife crime. We have a number of initiatives around this, including Operation Sceptre. I have outlined not only the funding settlement for this year but the Home Secretary’s priority for the next spending round, because he recognises the sheer strain that police have been put under—the changing face of the types of crime that people are committing and, of course, the strain that they have been under in terms of terrorist attacks. I will say something about police numbers in relation to serious violence. At the national level, most types of serious violence were far higher in 2000, with higher police numbers compared with the 1950s and 1960s, when police numbers were far lower. That is not to denigrate the points made about the police and the pressure they are under. I take this opportunity to thank the police for the very important work they do in keeping our communities safe.

[Baroness Neville-Rolfe (Con)]

My Lords, I endorse what my noble friend says about the great work done by the police. I am particularly concerned about the position in London, particularly in relation to knife crime. Does she feel that there is more that the mayor and his team could do to help in the fight against this appalling crime?

[Baroness Williams of Trafford]

My noble friend makes a very valid point. Many people have pointed to the increase in knife crime and moped crime around London. This is not solely a job for the police: elected people such as the Mayor of London have their part to play. As I say, there are a number of initiatives going on in this area. The police are doing some incredible work, but everyone has their part to play.

[Lord Lea of Crondall (Lab)]

My Lords, as my noble friend has said, some of the statistics are very disturbing. There is a whole pattern, not just in knife crime and violent crime, but in the numbers of what we might call ordinary crime. Something like 80% of robberies are not solved or even subject to charges being made. I wonder whether Cressida Dick, the new commissioner, should produce in two or three months a real-time, online assessment of what targets should now be set by the Met to reduce these appalling numbers.

[Baroness Williams of Trafford]

As I have said on many occasions, the targets that police set are for individual police forces to decide, depending on the challenges they have in their communities.

[Baroness Hamwee (LD)]

My Lords, the Minister mentioned increased rates of reporting. That is a point that she will have heard, as I have, many times over decades now as part of an explanation. I do not discount it as part of an explanation, but can she assure the House that every effort will be made to encourage victims to report and that ways will not be found to deter them?

[Baroness Williams of Trafford]

The noble Baroness makes a very valid point. There is increased reporting and we do not want to discourage that. We have gone to some lengths to encourage victims of domestic violence and sexual abuse to come forward, as well as victims of FGM—as we heard in the debate that has just taken place—and victims of stalking. With all those types of crime, people were unwilling to come forward. So, yes, we are absolutely adamant that we want victims to carry on reporting those crimes.

[Lord Swinfen (Con)]

My Lords, the police used to patrol on foot, both in the country and in towns, most of the time. As far as I can see, at the moment they patrol in vehicles, which does not give them the chance to know the young people in their area and to know where they should be and where they ought not to be, and so to prevent crime before it starts. Is there any likelihood of this changing?

[Baroness Williams of Trafford]

I agree with my noble friend that the bobby on the beat is a very valuable presence on our streets, not only to make people feel safe in their community but to act as some sort of deterrent to criminals who may be on our streets. I go back to the point that I made earlier: it is entirely a matter for PCCs, together with their chief constables, to decide how to deploy resources in the most effective way that meet the needs of their community.

Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018

Baroness Williams of Trafford Excerpts

Wednesday 18th July 2018 Grand Committee

Moved by

[Baroness Williams of Trafford]

That the Grand Committee do consider the Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018

Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the regulatory framework governing the use and authorisation of investigatory techniques provided for by the Regulation of Investigatory Powers Act 2000, or RIPA, ensures that the public authorities empowered to use these important techniques do so in compliance with the right to privacy under Article 8 of the European Convention on Human Rights. Noble Lords will be aware of how important these provisions are, along with those in related legislation, including the Investigatory Powers Act, to the vital work undertaken by the intelligence and law enforcement agencies, as well as by other public bodies with enforcement or regulatory functions. These Acts allow for the authorisation of investigative techniques that are used by investigators to obtain intelligence and evidence to disrupt the activities of serious and organised crime groups, prevent terror attacks, establish guilt, and ensure that our agencies can locate and safeguard vulnerable and missing people.

The RIPA framework ensures that there are strong, transparent safeguards in place that are appropriate to the intrusive nature of these investigatory powers, so that they are used lawfully and proportionately. This is developed further by the significant strengthening of safeguards and changes to the oversight of all investigatory powers brought about through the Investigatory Powers Act. These strengthened safeguards, therefore, together with the clear requirements set out in the codes of practice and the rigorous independent oversight provided by the Investigatory Powers Commissioner, establish clear limits around the use of these powers, and ultimately provide reassurance to the public that the powers are being used in ways that serve the best interests of us all.

The Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 introduces three revised codes of practice, as well as making some amendments and updates to the public authorities authorised to use surveillance powers under RIPA. The order also makes a minor technical amendment to provisions on the use of combined warrants under the Investigatory Powers Act 2016. I am aware that the noble Lord, Lord Haskel, is keen that we also discuss today the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018, which amends the existing authorisation regime for the use of people under the age of 18 as covert human intelligence sources. I thank him for giving the Committee the opportunity to hear about the extensive safeguards in place.

The revised codes of practice provide guidance on covert surveillance, property interference, covert human intelligence sources, or CHISs, and the investigation of protected electronic information—activities which are regulated by RIPA as well as by the Police Act 1997 and the Intelligence Services Act 1994.

First issued in 2002, the CHIS and covert surveillance codes of practice were last updated in 2014. They, along with the investigation of protected electronic information code, which was introduced in 2007 and has not been updated since, have all been updated, mainly to reflect the changes brought about by the Investigatory Powers Act. These include the creation of the new Investigatory Powers Commissioner, the changes made by the introduction of equipment interference as a technique separate from the existing property interference powers, and the need to mirror the strengthened safeguards for the handling of confidential and privileged material.

Other updates and clarifications have been made to the guidance to reflect and improve current operational practice. We consulted publicly on them at the end of last year. For instance, the guidance on procedures to be followed where investigators use the internet for covert investigatory purposes or where covert surveillance is undertaken by means of drones, and the provisions intended to reinforce the safety of covert human intelligence sources, have all been expanded.

In addition, we are updating the lists of the public authorities and officers able to authorise the use of directed surveillance and covert human intelligence sources. These updates ensure that public authorities can continue to authorise the use of investigatory powers following changes to their organisational structures and remove any authorities that no longer require the powers, and are in themselves a safeguard against the inappropriate or indiscriminate use of the investigatory powers. They ensure that their use is limited to specified public authorities and can be authorised only by specified officers within those authorities who have sufficient authority and expertise.

Lastly, we are correcting a technical error in the Investigatory Powers Act provisions for authorising a combined warrant, reflecting Parliament’s clear original intention that warrants should last for six months, rather than the clearly far-too-short period of two working days. This timely improvement will assist our intelligence services in their work of identifying and disrupting threats to our national security.

All the changes to the codes of practice and the authorisation framework for the powers ensure that the highest standards continue to be required of those using the powers and that they are underpinned by ever-stronger safeguards against their misuse. I commend the order to the Committee and hope that during the debate I can provide reassurance to the noble Lord, Lord Haskel, and others on the use of juveniles as CHISs. I beg to move.

[Lord Haskel (Lab)]

I thank the Minister for introducing the order and for raising the question of the juveniles order. I think it would be of convenience to the Committee if we debated them together.

I sit on your Lordships’ Secondary Legislation Scrutiny Committee. Our task is to consider and scrutinise all the Government’s regulations and orders—what is known as secondary legislation. We report weekly on what we think would be of interest to the House and what gives us cause for concern. Normally we do this on paper, but we thought that the regulation regarding juveniles warranted further debate.

Our committee is a mixed bunch. Our chairman—the noble Lord, Lord Trefgarne—and other members of the committee are here. We are from all sides of the House. There are some old hands, like me, and some welcome new faces. Some have had experience in government. But the one thing that most of us have in common regarding this order—and I include Jane White, our experienced and effective adviser, who worked on the order—is that we are parents and, as parents, we know that young people in their mid to late teenage years are going through a time of great change, when they are vulnerable and often need support. Our concern is that the order does not provide that necessary support and understanding.

We wrote to the Home Office, saying that the Explanatory Memorandum—EM—explained why this extension of one month to four months was administratively convenient. Yes, the Explanatory Memorandum acknowledged the need to take account of the welfare of the young people. But it was not clear how this would be achieved. We wrote to the Minister for Security and Economic Crime about this concern. In reply, he justified the use of these young people, explaining that young people are increasingly both perpetrators and victims of crime and so are increasingly able to assist in the prevention and prosecution of crime. He certainly acknowledged the need to look after the young people’s welfare and said that the code was being updated—that is the code of which the Minister has just spoken.

The Explanatory Memorandum has indeed been updated. It mentions some of the safeguards and says why they are needed. But what is still missing is exactly how the welfare and safety of these juveniles will be achieved.

Working undercover can be made to look very attractive to a juvenile, but what about the risks? There is the risk of being beaten up, of sexual exploitation, of reprisals, as well as the impact on their education and on their mental health. The Home Office reports that it has to deal with an increasing number of mental health problems. The Minister is also silent on the number of young people involved in this undercover work, so we ask: is it right to put one juvenile in jeopardy for the greater good?

--- Later in debate ---

Can the Minister further confirm that this is for serious offences alone and not for general offences? I assume that this is not used for things like shoplifting—that it is for very serious offences. On one level, if that is the case it is good; but, equally, you are then particularly exposing the children, because if they are discovered to be spies and that they are informing, the risk to life and limb is very serious. With that, I look forward to the Minister’s response.

[Baroness Williams of Trafford]

I thank all noble Lords who have taken part in this debate, in particular the noble Lord, Lord Haskel, who introduced some of the committee’s concerns. I apologise for the quite unsatisfactory Explanatory Memorandum, about which the noble and learned Lord, Lord Judge, and to a certain extent the noble Lord, Lord Paddick, gave very good explanations and far more of the context, which is a learning point for me and for the Home Office. I repeat the point that all noble Lords made about the welfare of the child being paramount. The noble Lord, Lord Haskel, said that he is a parent; I am too. It is the most important thing that we are discussing.

I will start by addressing the Regulation of Investigatory Powers (Juveniles) Order 2018, which the Secondary Legislation Scrutiny Committee expressed concern about and which has, in the main, been the subject of interventions today. Over the past 18 months, at the Security Minister’s instigation, the Government have been conducting a review with operational partners of the covert human intelligence source, or CHIS, authorisation framework to consider whether it is working as effectively as it could. This included consideration of the Regulation of Investigatory Powers (Juveniles) Order 2000 which put in place a set of enhanced safeguards that apply specifically to the authorisation of a CHIS under the age of 18, demonstrating that the ability to authorise people under the age of 18 as a CHIS is not something new. That has become clear in the course of discussions.

While investigators might wish to avoid the use of young people as a CHIS, we must recognise that, unfortunately, some juveniles are involved in serious crimes both as perpetrators and as victims. Consequently, young people might have unique access to information that is important in preventing and prosecuting gang violence, terrorism and child sexual exploitation offences. Noble Lords will undoubtedly be aware of reporting in the media recently—this was mentioned in the debate—on the escalating county lines phenomenon which, along with the associated violence, drug dealing and exploitation, has a devastating impact on young people, vulnerable adults and, of course on the communities they affect.

The existing juvenile CHIS regime allows for the use of a juvenile CHIS to be authorised for just one month at a time as compared to a 12-month authorisation for those over the age of 18. This can make their deployment more difficult to manage, which in turn can be unhelpful both to them and to law enforcement. It can also act as a deterrent to law enforcement seeking CHIS authorisation in some circumstances where immediate results might not be obtained during a one-month period, even if a longer, carefully managed deployment could provide a significant operational dividend.

To reduce the pressure to obtain immediate results from such an authorisation while still ensuring the protection of the juvenile, we are increasing the maximum length of a juvenile CHIS authorisation from one month to four months, requiring an authorisation to be reviewed at least monthly which will enable these deployments to be conducted in a more measured way. I will go into more detail on that in a second. Additionally, we have strengthened the protections around the appropriate adult required to be present at all meetings between the source and the public authority tasking them, and we are keeping the existing prohibition on all sources aged under 16 being tasked in relation to a parent or person with parental responsibility, which reflects the increasing independence of young people between the ages of 16 and 18 and that parental authority reduces accordingly—the point about 15 going on 25. I hope that reassures noble Lords that these changes are not about administrative convenience.

We think that these amendments will improve the operational effectiveness of the juvenile CHIS regime, while strengthening the protections for young people in this area and the safety and welfare of young people undertaking this important and dangerous role. This remains absolutely paramount.

[Lord Paddick]

Can the Minister explain how deployments are more difficult to manage if they are authorised for only one month? Presumably the deployment can continue and there is a review by an assistant chief constable or a commander to renew the authorisation, without interfering with the juvenile or the deployment. In those circumstances there would be no pressure to produce results within a short space of time if all we are saying is that the authority can be renewed by this more senior officer at the end of one month on an ongoing monthly basis, but it is very important that somebody of that seniority—that removed from the investigation—objectively decides that that authorisation should continue.

[Baroness Williams of Trafford]

For the convenience of the Committee, I will go through the process. Authorisations for the juvenile CHIS should be granted at an enhanced level, which is set out in annexe A of the code of practice. For example, for a police force this would be by an assistant chief constable, in comparison with the adult CHIS, where an authorisation would be considered by a superintendent. The code of practice requires that, where possible, the authorising officer who grants the authorisation should be responsible for considering subsequent reviews and renewals. That is how each month the whole thing is revisited to continue for a further month, up to four months. But all these processes need to be documented and considered by the handler, the controller and the authorising officer within the public authority and will be fully open to inspection by the Investigatory Powers Commissioner as well. This creates, in our view, a comprehensive framework of safeguards which ensure that the conduct is necessary and proportionate to protect the interests of that young person. With regard to increasing the maximum, they may not be able to finish off what they started within just one month and hence a monthly review, up to four months, is in place. The noble Lord is looking slightly confused so I will let him intervene.

[Lord Paddick]

Can the Minister confirm that the monthly review would be undertaken by an assistant chief constable or commander?

[Baroness Williams of Trafford]

Yes.

[Lord Paddick]

I still do not understand the difference between the current system, where that authorisation would have to be renewed by a commander or assistant chief constable each month, and a four-month authorisation that is reviewed every month.

[Baroness Williams of Trafford]

Under the current system it is only one month, whereas under the new system it would be up to four months but with a review every single month—and, yes, by the same senior officer.

[Lord Kennedy of Southwark]

Maybe I am being daft but I do not see the difference.

[Baroness Williams of Trafford]

I think I understand it. I apologise to noble Lords. The current system is limited to one month. The new system would be up to four months, but with a review every month.

[Lord Paddick]

I am very grateful to the Minister. At the moment, an assistant chief constable or a commander can authorise a juvenile CHIS to be deployed for a month. At the end of that month there can be an application from the handler to the senior officer to renew the authorisation so that it has the effect of continuing for another month, and so forth, for as long as it is necessary. The new system that the noble Baroness is suggesting is a four-month authorisation with a review by the commander or assistant chief constable at the end of each month. What is the difference between the two systems?

[Baroness Williams of Trafford]

I think I have the answer now. Removing the requirement for the activity to be authorised at monthly intervals removes the need for investigators to push for early results to justify re-authorisation—that is what I understand—thereby allowing the juvenile CHIS to be managed in a way that better suits the long-term investigation and reduces the risks to the young person.

[Lord Kennedy of Southwark]

This goes to the point about administrative convenience that was made at the start. It may make it more convenient for the officer concerned, but how does it benefit the child?

[Lord Paddick]

Perhaps I can assist. The handler decides that the CHIS needs to be in a gang for three months. The handler will know that, under the current system, at the end of each month, for three months, they will have to go back to the commander or assistant chief constable to renew the authorisation. What is the problem with that system that is overcome by the changes being suggested?

[Baroness Williams of Trafford]

I am very grateful to the noble and learned Lord, Lord Judge, because he seems to put things so clearly. I get the noble Lord’s point. Perhaps I may think about it and write to noble Lords, because I now understand exactly the point that the noble Lord is making—thanks to the noble and learned Lord, Lord Judge.

I will now move on to the appropriate adult point. We have strengthened the protections around the appropriate adult required to be present at all meetings between the source and the public authority tasking them. I think that I have already said this. We are keeping the existing prohibition on all sources aged under 16 being tasked in relation to a parent or person with parental responsibility. This reflects the increasing independence of a child approaching the age of 18.

I will now touch on the issue of consistency of approach.

[Lord Paddick]

I am very sorry; I know that it is late. I quoted from the draft revised code of practice. Paragraph 4.3 states:

“Public authorities must ensure that an appropriate adult is present at any meetings with a CHIS under 16 years of age”.


An appropriate adult has to be present at the interrogation of a criminal suspect under 18 years of age. My question was: why is there a difference between the two?

[Baroness Williams of Trafford]

The noble Lord did ask that and I did not answer it satisfactorily. I will write also on that point.

Perhaps I could move on to the oversight regime. The independent oversight of these investigative powers was first legislated for by the Police Act 1997, and the powers are now overseen by the Investigatory Powers Commissioner, who also oversees the powers provided for in the Investigatory Powers Act 2016. The commissioner, like those oversight commissioners his role has replaced, provides the guarantee of impartial and independent scrutiny of the use of these tactics. The oversight commissioners have published reports annually, and, in his final oversight report in 2017, the Surveillance Commissioner commented that,

“standards of compliance have steadily improved in my view, and addressing it generally, they are high”.

The Government accept that the Explanatory Memorandum originally laid alongside the juvenile CHIS order did not go far enough and, as the noble Lord, Lord Haskel, said, the revised version was laid last week. It provides greater detail on the changes made by the order and on the use of juveniles as CHISs more generally. However, I have to make it clear that the Explanatory Memorandum should not be read alone. As I have set out, those charged with authorising and handling young people who act as CHISs have access to extensive guidance available to them to ensure that juveniles are safeguarded. The Explanatory Memorandum is clearly not the right place for the detail that the code contains. Such detailed guidance on the use of these sensitive tactics is necessarily not in the public sphere, as to do so may undermine operational practices and have the potential of putting the CHIS in harm’s way.

The fact that these two orders were laid at the same time is not a fluke—rather, it is the continued development of a suite of statutory safeguards and associated guidance, revised and updated to ensure that these powers are used proportionately and in accordance with the law.

I will now turn to some of the issues which were raised by noble Lords. The noble Baroness, Lady Jones of Moulsecoomb, talked about using children as spies—and this relates to the numbers. I can say to noble Lords that the numbers are extremely low. We do not disaggregate by age, but as I say, the numbers are low.

[Baroness Jones of Moulsecoomb]

How do we know that they are low if the numbers are not kept?

[Baroness Williams of Trafford]

As I understand it, while we do not distinguish between different age groups, we know from discussions with public authorities that the number of juvenile CHISs is low as young people would not normally be deployed in this role, unless there is absolutely no other way to achieve the same result. That is how we know that the numbers are low.

Consideration will always be given to whether the same result could be achieved by other means, and only if it cannot is it necessary to authorise a CHIS. The police and other public authorities must conduct a risk assessment before a juvenile is deployed as a CHIS. That assessment must take into account the risks to their physical and psychological health, as the noble Lord, Lord Paddick, said. The codes of practice make it clear that the welfare responsibilities continue after the deployment ends.

The noble Lord, Lord Paddick, asked about amending the combined warrant provisions. We are making this amendment because one effect of the IP Act is that certain combined warrants that include an authorisation for intrusive surveillance that has been signed by a senior official rather than the Secretary of State would last for only two days. The shorter duration is appropriate under pre-existing legislation, RIPA, where the signature and issue of such an authorisation personally by the Secretary of State is a key safeguard. When that does not happen, the warrant has a shorter duration unless renewed by the Secretary of State personally. However, in the context of such an authorisation being included as part of a combined warrant under the IP Act, which is subject to the additional safeguard of judicial commissioner approval, it is not necessary or appropriate to limit the duration of the warrant to two days.

On consultation with organisations involved in safeguarding, there is no requirement to consult publicly on changes to the 2000 order. We did consult broadly with the operational community and the Investigatory Powers Commissioner’s office, which was involved in these discussions. All those who use juvenile CHISs have a duty of care to the CHIS and duties to safeguard children and young people. This was taken into account as part of the consultation with intelligence and law enforcement agencies. We consulted on the changes to the code of practice in late 2017 and, while that version of the code did not reflect the changes we have since made in respect of juvenile CHISs, no respondents to the consultation commented or raised any concerns about the use of juvenile CHISs more generally.

I think that I might finally be able to answer the question of the noble Lord, Lord Paddick, about who can be a responsible adult for a juvenile under the age of 18. The existing 2000 order puts in place a requirement that all discussion with a juvenile CHIS under the age of 16 must take place in the presence of an appropriate adult, who must be a parent or guardian of, or person with responsibility for, the young person, or any other adult. The order strengthens the safeguard by amending the definition of “appropriate adult” to prevent a person with no links to the young or any appropriate qualification from acting as an appropriate adult. In future, an appropriate adult would have to be a parent, guardian or person, such a youth social worker, who is otherwise qualified to represent the young person’s interests. The appropriate adult is an important safeguard to ensure that the young person is comfortable with what they are agreeing to. I have talked about the distinction between 16 year-olds and 18 year-olds and those aged under 16. Although there is no statutory requirement for those aged over 16 to be accompanied to meetings, the decision on whether to inform a parent or guardian of a source aged over 16 is taken on a case-by-case basis.

All noble Lords have referred to human rights. All public authorities must act in compliance with the ECHR as a result of the Human Rights Act 1998. The human rights obligation has been in force since 2000. As a result, the human rights of the CHIS must be complied with.

The noble and learned Lord, Lord Judge, asked about the double lock of a judicial commissioner’s approval. The Investigatory Powers Act 2016 followed three reviews into powers relating to obtaining communications. The Act, and therefore the safeguard of judicial commissioner approval, relates to those powers and does not extend to the powers being debated today.

[Lord Judge]

I thought that these draft regulations were meant to make things better. If it was thought to be a good idea, surely it would not be beyond the bounds of regulation-writing to write the regulation accordingly. I am on my feet, which I know I should not be. It will not be beyond the bounds of difficulty or take very long for a record to be made of every CHIS aged under 18—although not to find out how many CHISs have been aged under 18 in the past, because no records have been kept. Then we will know the facts. Next year, we should know and be able to come back and say, “Good heavens, there are far too many”, or, “Okay, there were only two, and they have been looked into”. I should have limited myself to my first point.

[Baroness Williams of Trafford]

I take the noble and learned Lord’s point.

The noble Baroness, Lady Jones, asked about undercover police work. The CHIS code confirms that police officers deployed as undercover officers in England and Wales must comply with and uphold the principles and standards of professional behaviour as set out in the College of Policing code of ethics introduced in 2014. The code specifies that officers must,

“not engage in sexual conduct or other inappropriate behaviour when on duty”,

and,

“not establish or pursue an improper sexual or emotional relationship with a person with whom you come into contact in the course of your work who may be vulnerable to an abuse of trust or power”.

Of course, this instruction applies as much to undercover officers as to any law enforcement officer.

The noble Lords, Lord Paddick and Lord Kennedy, asked about the best interests of the child. The code of practice requires that any public authority deploying a CHIS takes into account the safety and welfare of that CHIS and that a risk assessment is completed by the authorising officer before any tasking takes place. The order retains the requirement of the 2000 order that these risk assessments for juvenile CHISs are enhanced risk assessments. Furthermore, the code requires that the ongoing welfare and the security of the CHIS after cancellation of the authorisation be considered and reviewed throughout the duration of the deployment and beyond. These authorisations must be reviewed at least monthly and records maintained for at least five years.

The noble Lord, Lord Paddick, asked whether we are changing this because of law enforcement agencies. This is not about seeking to legitimise practice that was non-compliant with previous codes of practice; it is about reflecting the fact that new investigative techniques are being used by the police. He asked about the code changes. The overall impact of the changes to the codes will be to strengthen the safeguards provided in the codes and improve the guidance for practitioners. The changes reflect current practice and aim to improve operational practice, including expanded guidance to assist investigators in their use of these powers in an online context. It is important that investigators are able to make full use of the internet to assist their work, and equally important to take into account the privacy of people using the internet.

The noble Lord, Lord Kennedy, asked a very pertinent question about why parents might not be involved. It is true to say that in some circumstances it may not be appropriate that parents of a young person deployed as a CHIS are informed: for instance, where they support the ideology or, indeed, the criminal intent of those against whom the juvenile might be employed. He asked whether it is just for serious offences. There is no specific limitation on seriousness, but the strict tests of necessity and proportionality apply—the point about shoplifting should be seen in that context. He asked about the differentiation between “should” and “must”. The 2000 order requires that an appropriate adult “must” be present, and we have not changed that requirement.

I apologise once again for the less than satisfactory quality of the Explanatory Memorandum and for my inability to answer certain questions, but at this point I beg to move.

[Baroness Jones of Moulsecoomb]

Forgive me, I know it is late—and forgive also my ignorance. But, given that there are some unknown components in this, does that mean that the Government will pause?

[Baroness Williams of Trafford]

No. What I have offered to do is write to the noble Baroness and to noble Lords whose questions I have not fully answered. Generally, in Committee, that is accepted—but the noble Baroness may not accept it.

[Baroness Jones of Moulsecoomb]

I was hoping that the answer would be that these problems would be corrected in a new draft.

[Baroness Williams of Trafford]

No—what I was offering was to write to noble Lords on the points I could not fully answer.

Motion agreed.

Cannabis: Medicinal Use

Baroness Williams of Trafford Excerpts

Monday 16th July 2018 Lords Chamber

[Lord Rennard]

To ask Her Majesty’s Government what is their assessment of the case for permitting the use of cannabis oil on prescription.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, on 19 June the Home Secretary announced a two-part review into the use of cannabis for medicinal purposes. Part 1, which is now complete, reported on the therapeutic and medicinal benefits of cannabis-related medicinal products. Part 2 will provide an assessment, based on the balance of harms and public health needs, on whether cannabis and cannabis-related products should be rescheduled.

[Lord Rennard (LD)]

My Lords, is it correct that no more than five people have so far applied for licences for medicinal cannabis; that the cost to hospital trusts of a licence is over £3,000 per patient; and that patients currently have to establish that cannabis treatment is a last resort for them but which has already been shown to work—something which requires them to travel abroad where access to the drugs is legal? Is this not simply quite wrong, when there are about 20,000 children in this country suffering uncontrolled epileptic seizures and who do not respond to the medication currently prescribed? Does the Minister agree that no parent should have to break the law to keep their children alive, and that cannabis medicines should be available on prescription as soon as possible?

[Baroness Williams of Trafford]

On whether no more than five people have applied, the noble Lord is absolutely right that not many people have done so. The panel as currently constituted is making those sorts of decisions on the back of some very urgent cases. Over a longer period, the ACMD will report to the Government on whether cannabis should be rescheduled. Of course, Dame Sally Davies has already made her interim pronouncement on 3 July. On the question of parents travelling abroad to get their children medicine, the noble Lord is absolutely right, and that is why the Government are doing exactly what we are doing: we do not want children to have to travel abroad with their parents and we are acting now in the best interests of those children.

[Baroness Meacher (CB)]

My Lords, I congratulate the Government on instituting these reviews, and I congratulate Professor Sally Davies, the Chief Medical Officer, for making very clear in correspondence with me that she believes that cannabis needs urgently to be rescheduled—she did not use those words, but it was very clear what she meant. In view of the clarity now that cannabis has quite remarkable medical qualities for certainly a number of people with epilepsy, severe pain and so on, is any consideration being given to moving medical cannabis from the Home Office to the Department of Health so that there is clinical leadership in the decisions on this matter?

[Baroness Williams of Trafford]

There is not, and that is because of some of the harms associated with drugs. Yes, Dame Sally Davies made her position quite clear, but of course we work closely with our health partners. In the last few weeks, the noble Baroness will have seen the way in which clinicians and medically based evidence were used to arrive at some of the decisions that were made.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, how many people have been prosecuted and convicted in the past five years for the possession or growing of cannabis for medical purposes? If the Government realise that they have been in the wrong on this, will those people get unconditional pardons?

[Baroness Williams of Trafford]

I think the noble Baroness is deliberately conflating two different things—judging by the smile on her face, she is. We are talking about the medicinal use of cannabis, and she is talking about possession, which are two entirely different things. She knows that. Cannabis was the most commonly used drug in 2016. About 2.2 million adults aged 16 to 59 have used it, but I cannot give her the possession figures. I can tell her that there were nearly 100,000 seizures of the drug in 2016-17.

[Lord Forsyth of Drumlean (Con)]

My Lords, will my noble friend deal with the point made by the noble Lord, Lord Rennard, which I have also heard on the media? In order to get access to this drug, there is a condition that you need to establish its efficacy. Is that not a Catch-22 situation? If the Government’s position is that people should not have to go abroad, how can they possibly meet the required test?

[Baroness Williams of Trafford]

My noble friend will know that international evidence, as well as the limited evidence here, is drawn on. I hope that that answers the questions of both my noble friend and the noble Lord.

[Lord Rosser (Lab)]

The Government have said that they have no plans to decriminalise cannabis for recreational use, but according to press reports at the weekend, there was a fall in the number of people prosecuted for possession of cannabis last year, compared with 2015, of 19%, and a 34% fall in the number of cautions for possession of cannabis issued by the police over the same period. In the absence of any credible evidence that the use of cannabis for recreational purposes has recently declined sharply, is chief constables deciding, for whatever reason, not to pursue cases of possession of cannabis to anything like the same level as even two years ago really an operational decision for them, as opposed to a strategic or policy decision that should be taken by elected police and crime commissioners or the Home Secretary?

[Baroness Williams of Trafford]

It is of course up to PCCs to decide the policy priorities for their local areas, and of course those will be different in different areas depending on the prevalence of drug use. The noble Lord is right that the numbers have dropped, but—and I see this, depressingly, in Manchester—the use of synthetic cannabinoids is rife in some cities.

[Baroness Hayman (CB)]

My Lords, I am afraid that I am still confused, even after the noble Baroness’s answer to the noble Lord, Lord Forsyth. As I understand what the noble Lord, Lord Rennard, said, if a family wants to be one of those permitted to use cannabis-based medicines in this country, it must prove efficacy, but because they are not already scheduled and licensed for such use, in order to do so the family must go abroad to take those medicines. The noble Baroness herself said in her answer that it was quite inappropriate that families should have to go abroad.

[Baroness Williams of Trafford]

There are two things here—and this will be third time lucky, maybe. If a family has to go abroad to get medicines, we still would wish to be sure of a medicine’s safety. So it is absolutely right that we would go through a process based on medical evidence on the safety of a drug. What we have seen in the last few weeks has actually been a short-term fix to what we need to sort out: the long-term problem and the solution of providing the appropriate drugs to these children for their conditions.

Operation Conifer: Funding

Baroness Williams of Trafford Excerpts

Thursday 12th July 2018 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government what assessment they have made of the contribution of Home Office funding to Operation Conifer conducted by the Wiltshire Police.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, in line with the normal special grant process, an assessment was carried out by Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services. This report is available online. HMICFRS was content that the costs of the operation were reasonable and proportionate.

[Lord Lexden (Con)]

In view of the significant sum expended by the state on Operation Conifer, and in view of the relentless criticism that the operation has attracted, should not the highly unsatisfactory Conservative police and crime commissioner in Wiltshire, Mr Macpherson, be summoned to the Home Office for some pretty frank discussions? Have the Government noted the recent decision to prosecute the anonymous fantasist known as “Nick”—a decision that casts yet further doubt on the handful of unsubstantiated allegations left hanging over the reputation of Sir Edward Heath by Mr Macpherson’s flat refusal to institute an inquiry? Indeed, one of those allegations was shown to be groundless by the Times newspaper last week. How can the Government go on resisting demands for an independent inquiry, which they have the power to establish? It is essential that such an inquiry be established to show that we remain a nation committed to ensuring that justice is done.

[Baroness Williams of Trafford]

I thank my noble friend for his questions. I know that, for certain Members of your Lordships’ House, this is still not a satisfactory situation. In terms of summoning Mr Macpherson to the Home Office, the police are operationally independent of the Government. There are several remedies open to the PCC to further investigate, including an inquiry. Again, in terms of summoning him to the Home Office, I would like to inform my noble friend that the new Home Secretary, my right honourable friend Sajid Javid, and I have written to him again to outline the position that he is quite within his power to hold an inquiry.

As regards “Nick”, my noble friend is absolutely right to bring up the issue, but obviously I cannot comment on individual cases. The general position is that the complainants in all sexual offences cases have anonymity for life, but, of course, if they are subsequently charged, they will have to go through the correct legal processes, which I understand is happening in this case.

[Lord Blair of Boughton (CB)]

My Lords, perhaps I may return to an issue that I raised during the recent debate on PCCs initiated by the noble Lord, Lord Armstrong, and turn the issue into a direct question to the Minister. Can she explain to the House why the Home Secretary or his predecessor have not asked Her Majesty’s Chief Inspector of Constabulary to send one of Her Majesty’s inspectors to Wiltshire to examine and report back on Operation Conifer? HMIC is funded by the Home Office, so this is essential to the Question asked by the noble Lord, Lord Lexden. As I made clear in the previous debate, such investigations are part of the historic mission of HMIC, which will be much diminished if such action is no longer part of its remit. If the noble Baroness does not know the answer, will she write to me and place a copy in the Library of the House?

[Baroness Williams of Trafford]

My Lords, I thought I did know the answer and that I had reiterated it on several occasions. On the question of why not HMICFRS, the Secretary of State can at any time, under Section 54(2B) of the Police Act 1996, require HMICFRS to undertake an inspection on a specific police force or forces, which can be limited to particular matters or activities or a particular part of the force that he or she is concerned about. This power enables the Home Secretary to commission urgent inspection activities, and such inspection reports must be published. The Secretary of State also has powers under Section 54(3) of the 1996 Act to direct HMICFRS to carry out,

“other duties for the purpose of furthering police efficiency and effectiveness”.

[Lord Paddick (LD)]

My Lords, in light of the noble Baroness’s last answer, why have the Government not used these powers to enable HMIC to go to that force and carry out the inspection, as she suggested? Legally, it is not possible to libel the dead, but in practice it clearly is. It is not time that the Government considered a change in the law?

[Baroness Williams of Trafford]

As regards not being able to libel the dead, that has always been the case, but we keep legislation under review. The reason why this will not be done by HMICFRS is that it can carry out an inspection either of the whole force, part of the force or a particular activity of the force, and in this instance the Home Secretary does not see that this would be appropriate.

[Lord Campbell-Savours (Lab)]

My Lords—

--- Later in debate ---

[Baroness Williams of Trafford]

I most certainly acknowledge my noble friend’s point—that for many people this is a very unsatisfactory outcome. In terms of further things that the Home Secretary might be able to do, it is for the PCC to instigate an inquiry, should he wish to do so. He has stated to me in correspondence that he does not want to, for several reasons, but the option is open. The court case to which my noble friend refers will of course determine in due course.

[Lord Rosser (Lab)]

I am sure that Members of the House are still somewhat baffled by the answers that have been given about why the Home Secretary has, as the Minister indicated, made his decision about an investigation by the inspectorate. However, I will move on from that and simply ask: is it not the case that Operation Conifer was more of a national investigation than simply a Wiltshire Police matter, and is not the logical extension of that that the Home Office should also be prepared to provide funding for an independent inquiry into the conduct of Operation Conifer, which in reality was simply delegated to Wiltshire Police?

[Baroness Williams of Trafford]

Operation Conifer was led by Wiltshire Police, so it was led by a local police force and was not a national operation. In terms of the funding for it, the Home Office has already provided £1.1 million of special grant. If special grants are applied for, the Home Office will consider them.

Immigration: Hostile Environment

Baroness Williams of Trafford Excerpts

Thursday 12th July 2018 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, with the leave of the House, I shall repeat in the form of a Statement the Answer to an Urgent Question asked in the other place earlier today. The Answer is as follows:

“Mr Speaker, I welcome the opportunity to respond on this Question and want to make our position very clear. We have put in place additional safeguards to ensure that legal migrants are not inadvertently caught up by measures designed to tackle illegal migration. It is right we make a clear distinction between those who are here legally and those who are not. We have made clear that it is not acceptable that those of the Windrush generation have been impacted negatively, and have apologised.

We are keeping under constant review the safeguards that were immediately put in place. We have introduced a temporary pause in the proactive sharing of Home Office data with other organisations, including banks and building societies, for the purpose of controlling access to services. Data on persons over 30 have been excluded from sharing to ensure that members of the Windrush generation are not inadvertently affected. This is a temporary measure.

We are also providing additional support to landlords, employers and public service providers through the Home Office checking service to ensure we are not impacting the Windrush generation. We have issued new guidance, which encourages employers and landlords to get in touch with the Home Office checking service if a Commonwealth citizen does not have the document that they need to demonstrate their status. We have issued similar guidance to other government departments providing public services.

The Home Secretary has said that it is his top priority to right the wrongs that have occurred. A lessons-learned review, which will have independent oversight, will help to ensure that we have a clear picture of what went wrong and how we should take this forward. We are carrying out a historical review of removals and detentions. At the same time, our task force is helping those who have struggled to demonstrate their right to be here are supported to do so, and we have committed to setting up a compensation scheme”.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, whatever the name, hostile or compliant, with the introduction of the Immigration Acts of 2014 and 2016 by the Prime Minister, people lawfully here in the United Kingdom have been treated shamefully. How will the suspension work? In three months’ time, do the Government intend to share the data that would have been shared over that three-month period, when the temporary pause comes to an end? What are they doing to ensure that the data are accurate, as the errors in data shared leave the injustice highlighted by the scandal?

[Baroness Williams of Trafford]

The noble Lord will know that it is not simply the 2014 and 2016 Acts that have led to what is now called the compliant environment. He will recall that, back in 1997, right to work checks were introduced. Of course, there have been right to rent checks and addition on addition of compliant environment checks to ensure that people who are in this country to work and live are so lawfully. So it is not just the 2014 and 2016 Acts. Over time, identity assurance has increasingly been a requirement.

As for the paused proactive data-sharing arrangements, we have paused it as he says with other government departments and delivery partners on data for all nationalities over 30 years old, which takes us back to 1988, for a period of three months. My right honourable friend this morning undertook to make an assessment of it from that point. That covers HMRC, the DWP and the DVLA. We have also gone further with access to financial services measures and significantly restricted proactive data sharing with banks and building societies via Cifas for persons subject to deportation action due to criminal activity.

Did the noble Lord ask another question?

[Lord Kennedy of Southwark]

Yes, I did, but—

[Lord Paddick (LD)]

The Home Office Committee is reported as saying that, unless the Home Office is overhauled, the scandal will happen again for another group of people. For example, there is nothing in this Statement about the fact that officials in the Home Office are being put under pressure by being given targets for removals from the UK. How can officials use their discretion and compassion if they have to deport another 10 people by the end of the week?

[Baroness Williams of Trafford]

The noble Lord will have heard the previous Home Secretary talk about previous targets for removal, which there were, and which had stopped for this year—they had been ceased. There were no targets for the deportation of criminals. But the noble Lord got to the nub of the point. The Home Office and the new Home Secretary have said that we need to take a far more humane approach to dealing with people—because these are people and not just numbers. I hope the noble Lord will agree that the way in which the Windrush issue has been dealt with under the leadership of the new Home Secretary has been more than humane. He has put a prime focus on ensuring that anybody inadvertently removed by the compliant environment measures that were in place are proactively sought, and remedial action will be taken to ensure that, through the compensation scheme, any hardship they have suffered will be recompensed in due course. The noble Lord is right in the sense that the culture needs to be changed—the new Home Secretary talked about that as well—to understand and recognise that we are dealing with human beings here.

[Lord Kennedy of Southwark]

If nobody else is coming in, may I ask the Minister to look at the question I asked her a few moments ago and write to me? I was asking about the data. If she could write to me, that would be very much appreciated.

[Baroness Williams of Trafford]

I apologise to the noble Lord that I answered an entirely different question from the one he asked. I hope the House found it helpful anyway. I shall of course write to him on the data.

Visit of President Trump: Policing

Baroness Williams of Trafford Excerpts

Thursday 12th July 2018 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, with the leave of the House I shall repeat in the form of a Statement the Answer to another Urgent Question given in the other place today by my right honourable friend the Minister for the Police. The Answer is as follows:

“First, I apologise to the honourable lady and to the House for not being in the Chamber when she put the Question. The visit to the UK of any President of the United States of America is a significant and historic event. I reassure the House that the police have developed robust plans to ensure the safety and security of the visit. The three main forces involved are the Metropolitan Police Service, Thames Valley Police and Essex. Nearly all forces in England and Wales are providing officers and resources to assist with the policing plans. This is under existing mutual aid arrangements and is being co-ordinated by the National Police Coordination Centre.

It is a long-standing tradition in this country that people are free to gather together and demonstrate their views. The police are aware of a number of protests planned across the country and will be working to manage these. The Metropolitan Police Service anticipates protest in London, including two large-scale protests tomorrow and on Saturday.

Proportionate policing plans are in place to support them. This is a significant policing operation and comes, as the House knows, at a time when police resources are also focused on investigating the incidents in Salisbury, protecting us against terrorist attacks and delivering their local policing plans. We will consider any requests for special grant funding in line with normal processes.

I conclude by stating for the record something I am sure the whole House feels, which is our appreciation for the incredible hard work that our police officers and their partners are doing to facilitate this visit successfully. That comes on top of the work they do every day in every community to protect the public”.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I join the Minister in appreciating the incredible work that our police and other partner agencies do to keep us safe. I fully support the right of people to protest peacefully while President Trump is here in the United Kingdom. It is such a contrast to how President Obama was received a few years ago. I recall the wonderful address he gave to both Houses in Westminster Hall and the time he took to leave the Hall because he was talking to Members of both Houses.

With police budgets under pressure and gun, knife and other violent crime rising, it is important that any requests for additional grant funding are considered in the context of the pressure police budgets are already under and the duty to keep citizens safe. Can the Minister confirm that that will be the case?

[Baroness Williams of Trafford]

I most certainly can. As the noble Lord will know, there are established processes for PCCs to make an application for additional funding if they face unexpected and exceptional expenditure—and I am sure this is such expenditure—which would otherwise create a serious threat to the force’s financial stability and its capacity to deliver normal policing.

[Lord Paddick (LD)]

My Lords, I shall continue the theme of funding. We continue to believe that the police are underfunded, particularly considering that 60% of funding for police services comes from central government and that amount is reducing in real terms. Police officers on mutual aid operations to ensure President Trump’s safety are being housed in gymnasiums. There are hundreds of officers in one space on camp beds. Male officers are having to pass through sleeping areas designated for female officers. Some female officers are being accommodated on the floor of squash courts where there are no beds, simply a mat on the floor for them to sleep on. These officers are having to spend three nights in these conditions and are then expected to work 12-hour shifts. Why has the Home Office not proactively stepped in to ensure that forces have sufficient funds to provide civilised accommodation for these officers? How do the Government expect police officers to treat the public fairly if this is the way the Government treat them?

[Baroness Williams of Trafford]

I totally sympathise with the noble Lord’s point. Police officers who work in the line of duty to protect the public should absolutely be given decent accommodation. I shall quote the NPCC’s spokesman:

“Some of the accommodation pictured today for officers supporting the major operation for the US Presidential visit is not acceptable and below the standard of other accommodation for this operation”.


I understand that Essex Police is working at speed to resolve this and to ensure that the affected officers will be decently accommodated. The spokesman also thanked the officers who raised this issue because what the noble Lord outlined is utterly unacceptable.

[Lord Kennedy of Southwark]

The Minister set out the context of how PCCs can apply for additional funding for the costs associated with policing the President’s visit to the UK. Does she think that the conditions highlighted by the noble Lord, Lord Paddick, are a prime example of where funding should be brought in quickly and urgently to deal with those issues?

[Baroness Williams of Trafford]

It certainly could be an example of where costs were not expected but were incurred. Therefore PCCs would be eligible to apply for extra funding.

LGBT Action Plan: Gender Recognition

Baroness Williams of Trafford Excerpts

Thursday 12th July 2018 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank my noble friend for securing this debate and for the very positive way in which he introduced it. I look forward to the next hot day, when he arrives at your Lordships’ House in a dress. On a serious note, he posed a series of questions for us to think about for the future, and I found them very helpful.

We are proud to have introduced marriage for same-sex couples in 2013 and Turing’s law last year, finally pardoning men convicted of historical consensual sexual offences. The noble Lord, Lord Cashman, mentioned again, as he should have done, the disregard scheme. We are meeting next week and I hope we can then put a timescale on it. I felt slightly ashamed when he mentioned the length of time that has gone by without it making much progress. We have also established a £3 million programme, running from 2016 to 2019, to prevent and tackle homophobic, biphobic and transphobic bullying in schools. Finally, we committed to consult on the Gender Recognition Act, making the process less intrusive and bureaucratic for trans people. However, we know that there is much more to do.

I turn, first, to the national LGBT survey and action plan. We launched the survey last year to gather more information about, and evidence of, the experiences of LGBT people in the UK so that we can focus on the specific areas that will improve their lives. The results were announced last week. As the noble Lord, Lord Cashman, said, more than 108,000 people participated, making it the largest national survey of LGBT people in the world to date. I am glad to see that the findings received widespread coverage in the press and captured the attention of the nation in the last week, especially in the run-up to Pride in London last weekend.

The noble Baroness, Lady Barker, rightly pointed out that there is a rich source of data in this survey. As to when we will roll it out more widely, last week it was mentioned that the data gave us a burst of information about conversion therapy and how it was much more widespread than we had originally thought. She also mentioned conversion therapy in children. We have made an explicit statement that it is wrong. We plan to end it for adults and especially children. As we heard, the noble Baroness was at the event last week when we talked about conversion therapy. Some people say that they have been undergoing it all their lives, which is very sad. You cannot make someone be what they are not.

The survey focused on the experiences of LGBT people in the areas of safety, health, education and the workplace. Everyone has seen the headlines but I want to focus on a few points in the short time available to me.

More than two in three respondents said that they avoid holding hands with a same-sex partner in public spaces for fear of a negative reaction from others. An act as simple as holding the hand of a loved one should most certainly not be a source of fear. Seven in 10 respondents with a minority sexual orientation and more than two-thirds of trans respondents said that they avoided being open about being LGBT for fear of a negative reaction from others. No one, no matter what their gender identity or sexual orientation, should have to hide who they are.

The noble Baroness, Lady Barker, and others, made particular mention of trans people, who face the most horrendous treatment in society—even, it has to be openly said, from among their LGBT colleagues. That sort of treatment came out in the survey and I hope that, through the GRA, we will see some improvement in their lives. Two out of five respondents said that they had experienced a hate incident in the year preceding the survey, committed by someone they did not live with, and yet nine in 10 respondents said that they did not report it because, “It happens all the time”.

The noble Lord raised the question of PHSE in faith schools, as 3% of respondents said they had discussed sexual orientation and gender identity at school and that the process has been far from satisfactory. Young people should leave school prepared for life and without some of the problems that they have faced in schools—for example, teachers disclosing what children have told them. I totally get his point that PHSE needs to be age appropriate, but it should not preclude those discussions that children might want to have in school.

The noble Lord also talked about PrEP. We are funding a three-year trial on PrEP and how best to deliver it. Once it is completed, we will consider extending it further.

My noble friend Lord Lucas talked about fairness in sport. There is already an exception in the Equality Act which allows organisers of sporting competitions to discriminate on the ground of gender reassignment to allow the safety of competitors and fair competition. We will not be changing the Equality Act, as we have said time and time again. Sport UK and Sport England have issued helpful guidance on the fair inclusion of transgender people in sport.

My noble friend also mentioned the Gender Recognition Act and medical intervention for children. It is important to know that only adults over the age of 18 can commit to surgical intervention, and that is after a period of assessment. A limited number of adolescents are prescribed puberty blockers and fewer are prescribed cross-sex hormones. These are prescribed only by specialist gender identity units and so their use is few and far between.

The noble Lord, Lord Cashman, asked why the GRA consultation was ignoring young people, given that many know what their gender identity is and should not have to wait until the age of 18 to have it recognised in law. We are not ignoring young people—they can respond to the upcoming consultation. We will take their opinions into account and we will welcome responses from them. Whether children up to the age of 17 should be allowed legal gender recognition is a topic of debate and, similar to today’s discussion, we are approaching the topic with great care.

The noble Lord, Lord Scriven, told a very painful story about being outed as a young child. There is no legal remedy for outing at this time. I remember the 1980s, when public figures in particular were outed, and I do not think we have such an environment any longer. However, whether they wish to come out is the decision of the person involved, and that should be respected. But I hope we are entering a period of cultural shift, in which people do not have to undergo the suicidal thoughts that the noble Lord did. I thank him for sharing that story with us.

My noble friend Lord Lucas talked about single-sex services such as women’s refuges, which has come up time and time again in the discussions I have had. Again, we do not intend to change the existing safeguards in the Equality Act that protect vulnerable women. It will continue to allow organisations to provide single-sex and separate-sex services, and, in circumstances, exclude people identifying as transgender provided that doing so can be convincingly demonstrated to be a proportionate means of meeting a legitimate aim. This, however, is a sensitive area, and I know we will have many discussions on it. We have issued very clear guidance to service providers on how to deal respectfully with transgender people. However, I have been told that transgender people are incredibly shy about sharing changing rooms, so what has stood well for 14 years is not about to change.

The noble Lord, Lord Cashman, made a valid point about LGBT homelessness. In our action plan we have committed to undertake a research project to understand more about the complex problem of LGBT homelessness. It is important that government takes action on the basis of good evidence. We do not have enough evidence about the nature and scale of the problem, which at the moment inhibits us from designing effective policies. However, I am sure we will all work together to look at this further.

One noble Lord—I think it was the noble Lord, Lord Cashman—asked about devolution and same-sex marriage. It is a decision for the Northern Ireland Assembly but the Government, particularly the Prime Minister, have made clear that they would like to see it.

The noble Lord, Lord Scriven, asked how much of the £4.5 billion would go to government departments and what will be process. I am sorry, I just gave a terrible false hope for two seconds—it is £4.5 million. There will be more details on that as we come up to the autumn. He also asked about making decisions on asylum and I shall write to him on that, about an independent public audit.

In the short time I have left I wish to thank the noble Lord, Lord Stevenson, for talking about his condition and for sharing his personal experiences with the House. He asked about intersex people and children’s surgery. We have committed to a call for evidence about the issues faced by intersex people and will consider the issues that he raises in the design of that call for evidence.

I was not surprised that the noble Lord, Lord Scriven, asked about LGBT people seeking asylum. The LGIG report to which he refers states that the treatment of people has improved, but I do not deny that we have further to go on this.

I am afraid I have run out of time but I think I have answered everyone’s questions. However, I wish to refer to a point made to me the other day. Some of the progress we have made on these issues has been made together. That is why, in the spirit of what the noble Lord, Lord Cashman, said, I look forward to working with noble Lords from all sides of the House on progressing these issues—which are sometimes more difficult than they appear on first view—in the future.

Crime (Overseas Production Orders) Bill [HL]

Baroness Williams of Trafford Excerpts

2nd reading (Hansard): House of Lords
Wednesday 11th July 2018 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the Bill be now read a second time.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the aim of this Bill is to provide the framework to address the problem of obtaining electronic evidence when it is stored outside the UK. Too often, criminals—including terrorists—are using global communications services to facilitate their criminal activities, and in many cases the companies providing the services being used are located outside the UK. UK law enforcement officers consider this information as a vital source of evidence in the investigation and prosecution of serious crime and we need to make sure that they have timely access to it.

Our existing powers for obtaining stored electronic data are effective when the company or person holding the data is located in the UK. In those circumstances, a law enforcement officer or a prosecutor can apply to a court for a production order to obtain the data. If the judge agrees that the material is required to support the investigation or prosecution, he or she will issue the production order, and the UK-based target will be required to comply.

However, as Members of this House will know, advances in technology, and the increasing globalisation of communications services, mean that it is not always the case that it is a UK-based entity that holds this data, which can be vital evidence. Where evidence is held outside the UK, we must rely on our international partners to help. We must use mutual legal assistance channels—a form of judicial co-operation between states that allows law enforcement officers and prosecutors to obtain evidence from a foreign jurisdiction via the authorities in that jurisdiction. However, the mutual legal assistance process can be slow, and in some cases it may not be timely enough to support an investigation or a prosecution. It requires a formal request to be made to another country, which then assesses it to consider whether it can comply. That country may require a court order or warrant from its own courts to obtain the evidence. This is usually the case for stored electronic data. It would then serve that order or warrant on the service provider in its territory. This process takes time and in some cases might result in delayed or abandoned investigations or prosecutions. It can also delay people being eliminated from a criminal investigation.

The Bill will create an overseas production order. It will provide law enforcement officers and prosecutors with the power to apply here in the UK for an overseas production order, which would allow them to seek stored electronic data directly from service providers based outside the UK in certain circumstances. They would be able to apply for an overseas production order for the purposes of investigating and prosecuting serious crime, including terrorist offences. They would be able to apply for an overseas production order only where a relevant international co-operation agreement is in place between the UK and the territory in which the overseas data holder is based.

This will mean that UK law enforcement officers and prosecutors will need to deal only with domestic UK courts and will have much quicker access to this data to support investigations and prosecutions of serious crime. The Bill will put on an equal footing the way in which a UK law enforcement officer or prosecutor can apply to the court for access to electronic evidence when the data is held by an entity based in the UK with circumstances when they are based in another territory with which the UK has a relevant international co-operation agreement.

The process of applying for an overseas production order will be similar to the existing domestic process for applying for a production order. The Bill’s provisions reflect our existing high levels of privacy protection, respect for freedom of speech and international human rights law. An overseas production order can be sought only for serious criminal offences. The court will, as it does currently, apply robust scrutiny to any application, and stringent tests will need to be satisfied before an order can be granted. These include that the information is reasonably believed to be of substantial value to the investigation or proceedings and that it is in the public interest for the electronic data to be provided.

The Bill also makes it clear what data cannot be sought, such as that which is legally privileged, or the circumstances in which additional protections might apply, such as when confidential journalistic material is sought. Critically, the Bill makes it clear that an overseas production order can be approved by a court only where it is clear that a relevant international arrangement exists. UK law enforcement officers and prosecutors will be obliged to deal with any data they receive under an overseas production order in accordance with existing protections under the Data Protection Act 2018, as is the case with material received under an existing production order or through mutual legal assistance.

I am sure that noble Lords will agree that the increasingly global nature of crime means that we need a global solution to tackle this problem. This means working with international partners to find ways to maximise our efforts in evidence gathering for the safe and effective investigation and prosecution of serious crime. This Bill will provide another avenue—an expedient means for law enforcement officers to seek stored electronic data. Mutual legal assistance will still exist and will remain critical for other types of evidence that are not within the scope of the Bill, and for electronic evidence outside the scope of relevant international arrangements. This Bill seeks to give those agencies that we rely on to investigate and prosecute serious crimes an additional tool to allow them to get timely access to electronic evidence in tightly defined circumstances.

This is a short and straightforward Bill. The safeguards it contains and the tests that must be satisfied before an overseas production order can be granted will be familiar to many who have law enforcement experience. It will help provide more timely access to vital evidence for our operational partners. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, there have been so few speakers this afternoon that anyone would think there might be a football match on tonight. However, I thank both noble Lords for their very constructive comments and questions. I have been furiously writing everything down and I hope I also have the answers but if I have not, I will follow them up in writing.

The noble Lord, Lord Paddick, asked whether this could allow for an agreement with the EU. Obviously, we are going through negotiations with the EU on Brexit, but it is absolutely possible that we could eventually make an agreement either with specific countries or with multiple states in the EU. That is almost certainly a possibility. He also quite sensibly asked whether this will affect the adequacy judgment in the context of Brexit. It is about getting data from outside the UK into the UK, but UK providers responding to requests under any agreement would need to comply with data protection law, which is of course aligned with EU standards, as we saw when we were going through the Data Protection Bill recently.

The noble Lord also asked how the Bill affects the evidence proposal published by the Commission. EU member states and wider international partners are considering this very question of cross-border access to electronic data. The European Commission has published proposals on this issue which we are currently considering. The UK’s opt-in applies to the regulation and the Government are committed to taking all opt-in decisions on a case-by-case basis, putting the national interest at the heart of the decision-making process. We are currently scrutinising the regulation, and we will make a decision on whether to participate in due course. The proposed evidence directive could be implemented before the end of the envisaged implementation period.

The noble Lord also asked whether contempt of court is enough if the CSP has no assets in the UK, which slightly goes to the point the noble Lord, Lord Rosser, made about seizing assets. Both are a possibility, but we anticipate working closely with overseas providers to create a high compliance environment. Given the general support for this, we hope that is the case. It is possible that some providers may have no UK assets, but those firms are unlikely to be within reach of any enforcement mechanism. We can always resort to MLA in the case of non-compliance.

The noble Lord, Lord Paddick, asked about what happens if you get more evidence than you asked for. The data received will be subject to the usual data protection laws and existing laws on data handling and retention. Law enforcement will be provided with guidance on how to handle data when using an overseas production order. I think he also asked about what happens if you need multiple different requests.

[Lord Paddick]

The question was: if you identify further offences from the information that you have requested, would you then need to go back to a judge to enable that evidence to be used?

[Baroness Williams of Trafford]

My view would be that, yes, you would because it would be a new request, but I will confirm that in writing. I would not wish to give the noble Lord misinformation at the Dispatch Box.

The noble Lord, Lord Rosser, asked how the US or other countries will be able to get information from the UK. The proposed agreement will be reciprocal and we would expect any country with which we have an international co-operation arrangement also to benefit from this more streamlined process for data and evidence gathering. The condition for any international arrangement or future arrangement is that each country recognises the other’s rule of law—that is an important concept for the Bill—due process and judicial oversight for obtaining and dealing with information and evidence with regard to serious crime. Each agreement will be specific in scope in respect of the circumstances in which it can be used. Section 52 of the IP Act 2016 will be used to designate international agreements, and that will be the basis for another country to request information from UK service providers. The Secretary of State has the power to impose additional conditions when designating an agreement under that section.

The noble Lord, Lord Rosser, asked what would happen if the other country had a lower threshold for what is regarded as reasonable belief. What do we do if this arrangement is all about the mutual recognition of legal systems? The UK would not agree to any arrangement where the threshold for obtaining data did not provide similarly protective standards to those in the UK. The agreements will recognise a shared acceptance of the laws in another country with which we are entering into an agreement. It will recognise the other’s rule of law, due process and judicial oversight for obtaining and dealing with information and evidence with regard to serious crime.

Under any proposed agreement the UK would require the other country to set out the powers it intended to use in pursuance of requests made under the agreement. The UK would also ask the other country to commit that it would not rely on another power unless agreed by both parties. In addition, it would specify the evidential standard required before requests were made and ensure that the UK was satisfied with those standards before designating an agreement for incoming requests.

The noble Lord asked which countries we are negotiating agreements with. We expect the first relevant international arrangement to be with the US, unlocking the potential for streamlined access by UK law enforcement, but any future international arrangements would, like the agreement with the US that we have been discussing, be based on the recognition that robust protections for privacy are present in each country. Of course, not every country would meet those high standards, and any agreement that we reached with another jurisdiction would be subject to parliamentary scrutiny in the usual way. As discussed, that usually involves laying the agreement in Parliament for 21 sitting days without either House having resolved that it should not be ratified.

The noble Lord asked what powers exist to nullify incoming requests. The Bill is about requests from the UK rather than to the UK, but UK-based providers will not be compelled to comply with overseas orders and, if they do, must comply with data protection law. The agreement itself will be subject to the usual scrutiny by Parliament, as I have said.

The noble Lord also asked about the timescales for production orders versus MLA. Under an overseas production order, the standard time for compliance is seven days. However, the judge may shorten or extend this time depending on the circumstances of the case. Therefore we expect this to be a much quicker process compared with MLA, which can take up to 10 months unless there is a particular urgency. The noble Lord asked how many we were anticipating. We anticipate approximately 40 to 50 outgoing requests for electronic data. I will write on the other point regarding MLA numbers. I am guessing that there are more because it has a broader scope, but I will write to the noble Lord.

I have tried to cover every point; I am not sure that I have but I will of course follow up in writing any that I have not. In the meantime, I beg to move.

Bill read a second time and committed to a Grand Committee.