Police, Crime, Sentencing and Courts Bill

Lord Dubs Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Dubs (Lab)]

My Lords, I welcome the chance to contribute to this debate. I welcome the noble Lord, Lord Sandhurst. I did not actually notice him in Putney. I spent a lot of time canvassing in Putney; perhaps we were in different parts of the constituency. Anyway, it was a good result for us, so I can boast about that.

Perhaps I should also say—I do not know whether I am going to boast or confess—that I am trying to think of how many demos and events like that I have been on. It is quite a large number. I think the first one I went to was a demonstration against apartheid around South Africa House and the most recent was in Parliament Square on behalf of refugees. I may have been on the wrong side of this new legislation, if it goes through unamended, on a number of occasions, just simply by demonstrating for causes which I believed in, and often with a lot of noise. We often shouted on demos, because that is what one does on a demo—that is the way demos work. However, enough of that.

I am privileged to be on the Joint Committee on Human Rights, and we have had a look at this Bill. I would like to talk about some aspects of the Bill based on the work of the committee, particularly public order and the criminalisation of unauthorised encampments, and to say a brief word about the children of mothers in prison.

We must surely protect the right to peaceful protest. We must accept that crime is best tackled when there is co-operation between the police and local communities, and we must never put the police in an impossible position by asking them to enforce a law which works against the right to peaceful protest. Surely that puts the police against local communities, which is the last thing we want to happen. The right to peaceful protest is fundamental. We have seen what happens in countries where peaceful protest rights are denied, most recently in Hong Kong, Belarus and Afghanistan. I do not want those countries to look at us and say that we are taking a leaf out of their behaviour. So we must be concerned about a power that would allow the police to move the location of a demonstration, limit its numbers or duration, or even try to limit the noise. The police already have powers to ensure that demos are lawful and safe. They do not need these extra powers relating to “intensity” or “serious unease”.

These powers could make it difficult for organisers of demos; they will not know how many people are going to join them. If one is on a demo, one does not know how many thousands of people will be there and how they will behave. The organisers of the demo surely cannot be responsible for that. So these conditions will represent a restriction on the right to protest that is not necessary or justified in a democratic society. On protests around Parliament, while it is right that parliamentarians must have free access to Parliament, we do not want Parliament Square to become what I think somebody called a “dissent-free zone”. The noise factor seems to have been drafted by people who have never seen a demo—or been on one.

As for one-person protests, I just cannot believe this can be part of the Bill. One-person protests, somebody standing there—good gracious me. There used to be a man who demonstrated against tobacco. I saw him everywhere: one chap waving a little placard.

What worries me about the Bill is that so many of the powers are given to the Government by regulation. Surely these should be defined in the Bill itself. It is not right that Ministers can be given such enormous powers and we do not even know what they are. If they cannot be on the face of the Bill, at the very least the regulations should be published so that Parliament and the JCHR can consider them before scrutiny of the Bill has been completed.

Then of course there is a lack of information about conditions attached to demos which makes it harder to judge the effectiveness of existing laws. We should also make sure that conditions imposed at protests are recorded and collected so we can see what has been applied.

I turn briefly to the criminalisation of unauthorised encampments. Václav Havel, one of my heroes, said that the litmus test of a civil society is the way it treats its Gypsy, Roma and Traveller communities. That is absolutely crucial. I do not think the Government should use the criminal law to address what is essentially a planning issue; instead, there should be a statutory duty on local authorities to make adequate site provision for Traveller communities. The idea of seizing a Traveller’s vehicle—which is essentially their home—is just appalling.

My noble friend Lord Rooker referred to another important issue: what happens to families where the mother is put in prison and the children are left? As the human rights committee said, the Government still do not know how many mothers of dependent children are in prison. There should surely be a requirement that what will happen in a family if the mother is put in prison is taken into account.

I will leave everything else—except to say to the Minister that she is going to have a jolly tough time in Committee and on Report.

EU Borders: Refugees from Afghanistan

Lord Dubs Excerpts

Thursday 9th September 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

The noble Lord talked about a mid-August debate—I do not recall, but I may have misheard him. On asylum seekers, I certainly agree with him on several fronts, including that asylum applications should be expedited as quickly as possible. However, I do not agree that we should grant asylum to people en bloc because we need to be very sure that the people we welcome here are not a threat to this country.

[Lord Dubs (Lab)]

My Lords, in discussions with the European Union, are the Government seeking to distinguish between those Afghans who left after the Taliban takeover and those who fled the Taliban before the takeover and reached Europe some time ago? Surely they should all be treated equally.

[Baroness Williams of Trafford (Con)]

Again, as I said to the noble Lord, Lord Kerr, every asylum application should be treated on its merit. If a person left Afghanistan some time ago, before the Taliban takeover, and their application is in the system, that application will be treated on a case-by-case basis. Clearly, others came through Operation Pitting and the ARAP scheme. I repeat: anyone who finds themselves in Europe should claim asylum in the first safe country that they reach.

EU Settlement Scheme

Lord Dubs Excerpts

Thursday 1st July 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I can confirm to my noble friend that not all applications concluded are accepted. There will be some specific cohorts of people who will not have their applications accepted; for example, for various reasons to do with offending or for reasons of national concern. However, as regards the physical document, the EU settlement scheme was designed precisely to avoid a Windrush-type event, where immigration status was automatically conferred on people by an Act of Parliament but with no record made of it. Successful applicants under the EU settlement scheme receive a digital immigration status that provides that secure evidence of their status.

[Lord Dubs (Lab) [V]]

My Lords, will the Minister confirm that the original estimates made by the Home Office represent about half the number of people eligible under the scheme? Will she further confirm that when the figures were last produced, at least 300 children had not been identified? Given that, it is likely that there will be many more than 300. Therefore, while I welcome the Minister’s commitment that the scheme for children will be open indefinitely, is there not a concern that there will be a large number of children whom the Home Office have not identified and who may still not be aware of their position in the years to come?

[Baroness Williams of Trafford (Con)]

I totally acknowledge the noble Lord’s point about children who in years to come might not have that status and therefore will need to apply for it. That is why the scheme, which accepts reasonable excuses for why somebody has not applied, will remain open indefinitely. I hope the noble Lord will be happy that 67% of children in care have applied. That is a great figure but support will be ongoing to encourage those children to apply. The noble Lord’s point about the Home Office underestimating the number of people who might apply for settled status is absolutely right. So did the3million, hence its name. We now have 5.6 million applications, which is a very encouraging figure.

Immigration Rules: Statements of Changes

Lord Dubs Excerpts

Thursday 27th May 2021 Lords Chamber

[Lord Dubs (Lab) [V]]

My Lords, I agree with the wording of the Motion in the name of the noble Lord, Lord Green, although not with many of the views that he expressed. He is surely right that such major changes to our Immigration Rules, whether for immigrants or asylum seekers, require proper and constructive debate that is not carried out in an hour and a half in the late afternoon, without our ability to come to terms with the real issues involved.

From my experience of both Houses, the Immigration Rules have always been difficult for Parliament to deal with, but we have never had such a problem as the noble Lord described. They have been difficult because they are normally unamendable, which means that we cannot properly engage with the issues. We cannot easily identify the changes or make our voice heard if we disagree. My plea, which I have expressed before to the Minister, is that if there are to be changes to the Immigration Rules—I assumed that they would be more modest than the ones we face today—they should be published in draft and debated by the House before they are presented in their final form. That gives us a slight chance, at any rate, of influencing the outcome. These proposals should never be put forward in a way that such major changes have to be taken, as it were, in one gulp.

We await the sovereign borders Bill, but it is not totally clear which of the Government’s proposals will be only in the rules, in the Bill or in both. That is another cause of confusion. Are we to await the sovereign boarders Bill in the hope that we can make more impact? That would be when the noble Lord, Lord Green, would be able to have his say on the arguments he has put forward.

There can be no doubt that people smugglers are vile, and that catching them and preventing them from doing what they do—risking people’s lives—is very important. But I have to take a different view from the Government. I do not think that the proposals put forward to us will deter traffickers; indeed, they may well encourage them. This is now a well-worn argument, but if we close legal routes to safety for people seeking asylum, the only recourse they have is to go to the traffickers. The traffickers will be rubbing their hands with glee at the Government’s proposals.

I urge the Government to be more sympathetic to family reunion, especially in the case of children who want to join family members here. We know that there are children in northern France, in what has replaced the “jungle” near Calais, and on the Greek islands. Some of these young people have family links with the UK. What is to become of them now that the Dublin III provisions have stopped? Will there be any way in which they can apply to come legally? After all, they reached the Greek islands and northern France before they knew of the Government’s proposals—although I doubt that that would have had any effect.

The Government are saying clearly—and regrettably —that an asylum seeker will be inadmissible if they have travelled through or have a connection with a safe third country. But—I repeat—what about those who have a connection to this country? Have the Government reached any agreements yet with other countries to take people who will be refused on the basis of their proposals? Can we have a list of the countries that have said that, yes, they will take them on the basis of our policy? I doubt that the Government will find any. In any case, if we say that they have not travelled the way we would like them to, what about those who have a connection with this country? Would not the French or other people say, “Well, what’s sauce for the goose is sauce for the gander”—or whatever the expression is—“and surely, if they are following that policy, why shouldn’t we?” I just think it is unworkable. In any case, it does not take much thought to realise that, if all European countries had followed that policy, the million or so Syrians who went to Germany would still be in Greece, Italy or Malta. We cannot allow the accident of geography to put such enormous responsibilities on some countries without the costs being shared.

Furthermore, I would argue that it is against the 1951 convention to penalise refugees for unauthorised entry to a territory. It is expressly forbidden. The Government say that they legally have right on their side. Well, I have talked to the UNHCR—which, as far as I am concerned, is the custodian of the 1951 Geneva convention—and it seems to me that we will be in for some legal battles to resolve that. Frankly, I think that the Government are wrong on this.

Some of the briefing we have had explains that the Immigration Rules concede that leave outside the rules is “theoretically possible”. The question is how to make this possible. In the words of the Home Office, such leave should be granted where refusal

“would result in unjustifiably harsh consequences”.

How can this be challenged? It is an argument of a Home Office official or Minister against the applicant. That is not a workable way forward.

I fear that another consequence of the Government’s proposals will be an increase in the backlog of applicants. The Home Office is already grappling with an enormous backlog. Frankly, I think this will make the situation worse.

To end on a positive note, where I can agree with the Minister, I think community sponsorship is a good idea, but it has to be worked out and the Government have to publicise the scheme and help to make it less bureaucratic.

Net Migration

Lord Dubs Excerpts

Tuesday 25th May 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, the noble Lord is right that the new points-based system that we intend to roll out is open to the entire world. Interestingly, the MAC advice was that the cap be abolished and that it would make sense to reduce migration numbers by varying other aspects of the scheme criteria—for example, the salary threshold and the level of the immigration service charge.

[Lord Dubs (Lab) [V]]

My Lords, is not one consequence of the Government’s stated policy that we are doing enormous damage to our economy, particularly in areas where there are labour shortages, such as agriculture, horticulture and social care? In the attempt to keep the numbers down, is there not a danger that we will be breaching the human rights of asylum seekers simply because their mode of travel is not acceptable to the Government?

[Baroness Williams of Trafford (Con)]

My Lords, one of the things we discussed in previous debates was employers in this country not seeking to use cheap migrant labour but to rely on our domestic labour supply. We want a fair system for asylum seekers with safe, legal routes.

Immigration

Lord Dubs Excerpts

Wednesday 14th April 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I will answer two of those questions. Eighteen is the cut-off age because 18 is the age of an adult, and we do not want adults sharing classrooms with young children, for example. It is important to assess people’s ages, and we will try to do so on a more scientific basis. The noble Baroness is absolutely right that applications fell in 2020. We had a pandemic and everything fell in 2020—so did returns. I am sure that the applications will be back up this year.

[Lord Dubs (Lab) [V]]

In the recent past, the Government have closed down two safe and legal routes for unaccompanied child refugees to reach this country from the continent—the Dubs amendment and the provisions under the Dublin treaty. How can the Minister reconcile closing down those routes with the claim that the Government want only safe and legal routes for people to come to this country? She has made that virtually impossible. Are not the Government getting very close to saying that family reunion will depend on the method by which somebody arrived in the UK, not the merits of their case? Surely we are turning the clock back in a most retrograde manner.

[Baroness Williams of Trafford (Con)]

I disagree that we have closed down routes. The Dubs scheme specified a number, which was subsequently increased to 480. It was based on the ability of local authorities to take children—the noble Lord shakes his head, but he knows that. We did not close it down; we successfully completed it. As for Dublin, we left the European Union, so we were never going to continue it. As I said during the passage of the immigration Bill, all the routes would continue to be open and we are now in consultation on what our new sovereign borders and immigration system will look like.

Refugees: Napier Barracks

Lord Dubs Excerpts

Thursday 11th February 2021 Lords Chamber

Asked by

[Lord Dubs]

To ask Her Majesty’s Government what assessment they have made of the living conditions for refugees in Napier Barracks.

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

My Lords, throughout the pandemic, the asylum system has faced significant pressures, and it has become necessary to use additional temporary accommodation to ensure that we meet our statutory obligations at all times. The Government provide destitute asylum seekers with accommodation that is fit for purpose and correctly equipped in line with existing asylum accommodation standards and contractual requirements.

[Lord Dubs (Lab) [V]]

My Lords, since I had a brief discussion with the Minister a few days ago about this issue, I have learned far more about what is going on. Surely it is unacceptable that asylum seekers—some of whom have suffered dreadfully, including from torture—should be held in conditions where Covid sufferers cannot self-isolate, where there is inadequate medical attention or support, and where there is a lack of hot food and hot water. Surely the Home Office should not be opening more barracks but should be finding decent accommodation for such vulnerable people.

[Baroness Williams of Trafford (Con)]

My Lords, I would reject the description of “decent accommodation” —this accommodation has served our Armed Forces. We are manging any outbreaks in line with Covid guidance, and everyone staying at those barracks has a decent standard of living, including heat, food and accommodation.

EU-UK Joint Political Declaration on Asylum and Returns

Lord Dubs Excerpts

Thursday 28th January 2021 Lords Chamber

Asked by

[Lord Dubs]

To ask Her Majesty’s Government what steps they are taking to implement the United Kingdom-European Union Joint Political Declaration on Asylum and Returns.

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

My Lords, the joint political declaration notes the importance of effectively managing migratory flows between the UK and the EU. The UK will continue to engage bilaterally and multilaterally with member states with which we have a mutual interest on returns or family reunions of unaccompanied asylum-seeking children. This reaffirms the important commitments already made in Parliament. This work is ongoing.

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[Lord Dubs (Lab) [V]]

My Lords, the Minister will be aware that, yesterday at a Holocaust Memorial Day event, her Cabinet colleague Robert Jenrick made a very positive statement about refugees. May I ask her specifically about the discussions that are taking place about child refugees with EU countries? Have these discussions started? If not, when will they start and with which countries will they take place?

[Baroness Williams of Trafford (Con)]

I know I will disappoint the noble Lord when I say that I will not be giving a running commentary on discussions but, yes, they have started and will be ongoing.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Dubs Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

I am very grateful to the broad coalition of noble Lords who are clearly against the use of child spies. All the amendments are cross-party, which should give the Government some pause for thought. If there is so much feeling about this issue among a mixed bunch of Peers, I think they should go a little further than their attempt with Amendment 26. Therefore, I urge the noble Lord, Lord Young, to push his amendment to a vote, but I shall understand if he objects to doing that, in which case I shall support Amendment 24.

[Lord Dubs (Lab) [V]]

My Lords, it is a privilege to take part in the debate on this amendment, with the many excellent speeches that we have had so far.

First, I thank the Minister for having arranged for my noble friend Lady Massey and me to meet some of her officials and police officers, and for the opportunity to have a long debate about the issues concerning children.

In introducing Amendment 12, the noble Lord, Lord Young, referred to the fact that I changed my mind in Committee, as though that was a very eccentric thing to do. I thought that the point of debates was to persuade other people to change their minds. He is absolutely right: I did change my mind—from a relative position to an absolute position on children not being used as CHIS—so I thank him for referring to that.

My noble friend Lady Massey set out the ground extremely well, competently and coherently. She and I are both members of the Joint Committee on Human Rights and, in a way, she has spoken for me as well, so I shall make only a few brief comments in support. I also welcomed the very powerful speech of the noble Baroness, Lady Kidron, although her amendment does not go as far as I would like. My preference is to fully support the amendment of the noble Lord, Lord Young.

I have three points to make. The first concerns the safety and well-being of children, the second is to do with mental health and the third concerns informed consent, and I want to say a brief word about each.

First, it is slightly curious that public authorities whose job it is to protect the welfare, well-being and safety of children should also, in a sense, be complicit in authorising or encouraging them to commit criminal offences. I fear that involving children as CHIS can damage their welfare and safety, and cause them harm in their lives many years later. We are subjecting them to enormous pressures by doing this and I am not happy about it.

Secondly, as an extension of that argument, there is the question of mental health. We are talking about young people who must, in the main, be extremely vulnerable. Very often they have deprived backgrounds, they have not had much going for them and they have suffered physically and emotionally. The mental health considerations seem sufficiently serious for us to say that we do not want to use children in this way.

Thirdly, there is the question of informed consent. My understanding is that, before anybody can become a CHIS, they have to give their informed consent. I just wonder whether a young person who is vulnerable, already involved in criminality, not sure of themselves in life and possibly with mental health problems can give their informed consent to taking part in these activities. How can a young person understand the full implications of going along with this? It seems a crucial step and they could be damaged for many years; indeed, they might never recover. It is a dangerous thing to ask them to do and I would prefer that we did not do so.

That is why my first preference, if I may put it that way, is for the amendment in the name of the noble Lord, Lord Young. My second preference is for Amendment 14, in the name of my noble friend Lady Massey. My third preference is to support the noble Baroness, Lady Kidron. I do not think that we can leave the Bill as it is. It is unacceptable that we should subject young people to such a dangerous situation. It is not a healthy or proper thing to do, and I hope that we will agree to one of the amendments—preferably that of the noble Lord, Lord Young.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, this is a fascinating debate. I thank the Minister for bringing forward her Amendment 26 and for the opportunity that she gave me to speak to professionals, particularly the police, operating in this field.

My starting point is obviously the same as that of others: Article 3 of the United Nations Convention on the Rights of the Child and the protection of the interests of the child. I find myself in agreement with paragraph 63 of the report of the Joint Committee on Human Rights. It concludes:

“The Bill must be amended to exclude children or”—


I agree in particular with this part—

“to make clear that children can only be authorised to commit criminal offences in the most exceptional circumstances.”

Of course, it is entirely regrettable that we might have to rely on children—those below the age of 18 and sometimes, as we heard in Committee and today, over the age of 12—in any shape or form. However, I remember from the limited time I spent in practice at the Scottish Bar that it was impressed on me that there are such circumstances. For the purposes of today’s debate, there are two separate circumstances that we need to focus on.

One is where a child might be asked to put themselves in a situation of risk—a situation that would rely even more on their consent than might otherwise be the case. But the situation that I think we should especially cover is where a child might already be in a situation of great risk to themselves or to their near family, particularly if they are migrants and are at risk of exploitation through trafficking for whatever reason—for example, modern-day slavery and sexual exploitation. I do not believe that currently the voices of those children are always heard. If they seek out a situation where they are prepared to keep themselves in harm’s way for the purposes of bringing evidence to the police and other authorities to enable and facilitate a successful prosecution, it would be absolutely mad for them to extricate themselves from that situation, provided they are given protections. Therefore, reluctantly, I accept that there are situations where children under the age of 18, and sometimes as young as 12, are already at risk but are doing themselves, their immediate peers, who might also be in that position, and indeed the justice system a great service by empowering evidence to be brought forward and to bring a successful prosecution.

I know that my noble friend Lord Young has put an enormous amount of work into his amendments, but the problem that I have—I think he recognises this himself—is that Amendment 12 is simply too prescriptive both on age, as it would remove this cohort of children between 12 and 18 completely, and in that it does not enable them to be used as CHIS in limited circumstances, provided the protections are there. I do not believe that Amendments 12, 13 and 14 lend themselves to the situation that already exists and which I would like to see continue, provided the protections are in place.

That brings me to Amendments 24 and 26. Here, I am entirely in the hands of my noble friend the Minister, who will need to convince me that her Amendment 26 is as good as Amendment 24 in providing protections in the situation which I have set out and which I would like to see put in place in these circumstances. Normally, I would be minded to support Amendment 26, but I will be unable to do so unless she is unable to convince me that the protections clearly set out in Amendment 24 will be in place.

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[Lord Bruce of Bennachie (LD) [V]]

My Lords, I have not intervened on the Bill to date. It has been well-served by the wide range of expertise across the House. I am grateful to the noble Baroness, Lady Massey, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Rosser, for their coherent explanations of support for this amendment. My brief intervention now is in the light of the Scottish Government’s current withholding of consent to the Bill. I appreciate that the first response to that action might be to dismiss it, as it is consistent with the Scottish Government’s reaction to other consent issues.

However, while the Scottish Justice Minister Humza Yousaf accepts that there is a case for the law, he is concerned that the Bill is drawn too widely and lacks adequate safeguards. His views are entirely consistent with the concerns expressed across the House. He has explained his preference for prior approval by a judicial commissioner, which has been debated and raised responses, although that consideration is still being argued. This amendment, coupled with that which was carried on Monday inserting an expectation of reasonableness, would go some way to addressing these understandable concerns.

It is widely understood and accepted that undercover agents operate to protect the state and its citizens from hostile actions. This necessitates behaviour that, in normal circumstances, might be considered criminal. Both operatives and citizens need to be reassured that actions will be reasonable and proportionate, and that this is not a gratuitous licence. A number of cases where actions were not deemed appropriate have been mentioned in our debates, but so has an understanding that undercover agents carry out vital work that saves lives. The law needs to protect them in their duties—we are talking of the police and Prison Service, in Scotland—and people who might be directly affected by their actions.

It is also clear, as asserted in all contributions to the debate so far, that the Human Rights Act alone is not an adequate safeguard. As an aside, it does not apply to British sovereign bases in Cyprus, for example. The noble and learned Lord, Lord Hope, despite his reservations about some of this amendment’s wording, clearly recognised the need to have human rights issues summarised and incorporated in the legislation. The noble Lord, Lord Rosser, made the same case and the interesting comparison that, as the Human Rights Act is well known, there is no reason for not putting these specific exclusions in the Bill.

As was said by the noble Baroness, Lady Massey, this amendment’s terms are similar to those in the Canadian Security Intelligence Service Act 1985. Can the Minister indicate whether Canada has experienced any problems with this element of its law, which has been in place for some years? After all, to commit murder, to inflict serious injury deliberately or to perpetrate rape, sexual offences, torture or imprisonment is not what we could reasonably expect of our agents.

I understand that, as of today, the Scottish Minister does not yet consider that the Bill is ready for him to recommend, and this amendment alone will not do it. He is still looking for amendments to the Regulation of Investigatory Powers (Scotland) Act 2000. Can the Minister indicate whether the concerns of the Scottish Minister can be met and the Government’s view about those reservations? I do not believe the citizens of the United Kingdom would argue for a lower standard than that set by a close and valued ally and friend, such as Canada. I am sure that the Minister will want to give assurance that the safeguards are adequate and sufficient, and in so doing ensure that this law secures the consent of all parts of the UK.

In conclusion, I can say only that the balance that the Bill is striving for has raised legitimate questions and concerns about a whole range of issues, of which this is just one. The reservations of both the Government and Parliament of Scotland are, I am told in good faith, a desire to ensure that the Bill is structured in a way that meets the objectives of the Government but also the safeguards being sought by Members of this House and the Scottish Parliament. In those circumstances, I hope the Minister can assure us that it will be possible to bridge that gap, because it would surely be far better for the Bill to be passed with the consent of the Scottish Government and the Scottish Parliament than not.

[Lord Dubs (Lab) [V]]

My Lords, I welcome the opportunity to speak to the amendment. I speak, of course, as a member of the Joint Committee on Human Rights, a position I share with my noble friend Lady Massey, and her amendment reflects very effectively the concerns of the committee about this issue—although the committee was, of course, also concerned by a whole range of other aspects of the Bill.

I can be very brief, but it can surely never be right for the state to authorise the gravest of crimes: torture, murder or extremes of sexual violence. That is the basis of this amendment, which I therefore fully support.

The Government have said that if we set limits on the offences to be covered by the Bill, that will risk that agents could be tested by the groups that they have infiltrated—in other words, that they would then challenge the CHIS, if they suspect them to be a CHIS, to commit one of those offences and therefore he or she would be revealed. As has already been said, other countries have the same safeguards: the United States, Australia and Canada. They already place express limits on the crimes CHIS can commit. If that works for the security services in Australia, the United States and Canada, it can surely apply to us.

The Government have said that the limits can be safeguarded by the Human Rights Act. Frankly, that is not certain at all. The Government have been hesitant about the Human Rights Act anyway, and I believe—the Minister may confirm this—that the Human Rights Act does not apply to abuses committed by agents of the Government. There is concern that this aspect of the Bill may be relevant to criminal conduct authorised overseas. That is a very dangerous situation indeed, and again I would welcome the chance to hear from the Minister whether or not that is so.

The Government produced comments on the report of the Joint Committee on Human Rights, and in particular said that we cannot go down the path of Canada, the United States and Australia because they are not under the European Convention on Human Rights and we are. That is not a straightforward argument. Canada has its own version of the European Convention on Human Rights and the United States has its own Bill of Rights, so it would be wrong to say that they are not protected by a human rights convention such as covers us. That is not a very good argument. In any case, in the United States, the FBI, as we are learning from the events of last week, has thousands of agents each year operating within terrorist and mafia groups which pose grave threats to the public, yet the United States places express limits on what crimes the FBI’s covert agents can commit.

The amendment is a proper one; it is a proper safeguard; it is something that those of us who believe in human rights would say ought to be there. We need the extra protection of the amendment: the Human Rights Act itself is not sufficient.

[Lord Cormack (Con) [V]]

My Lords, like the noble and learned Lord, Lord Hope of Craighead, I believe the amendment could be improved; nevertheless, like him, I support it. I support its basic principle. I support what the noble Baroness, Lady Massey of Darwen, said.

I was very glad the noble Lord, Lord Rosser, began by paying tribute to the police and those who keep us safe, following that splendidly spirited speech from the noble Baroness, Lady Manningham-Buller, on Monday, when she talked about the bravery of many who serve in the Secret Service. All that I endorse, but it cannot be right for the state to connive at the committing of heinous crimes: rape, murder or torture. I tabled an amendment in Committee specifically citing those crimes. When I saw the amendment of the noble Baroness, Lady Massey, on the Order Paper, I decided not to resubmit mine because she seemed to have covered it.

The noble and learned Lord, Lord Hope, made a wonderful forensic demolition of the Government’s citing support for resisting amendments such as this from the Human Rights Act. That really does not wash. I am bound to say that, in the various conversations I had with officials in the Home Office—I again thank my noble friend for making them possible—the only area where I felt the defence was very weak was in the opposition to an amendment along these lines. We have heard colleagues cite Canada and Australia, and again surely we cannot say that what has worked for almost 40 years in Canada without any apparent obstacle could not work here.

We are a civilised country that always proclaims its belief in the rule of law, the prime requirement of which is to defend all our citizens—hence this unpleasant but necessary Bill—and I submit to your Lordships that it would be completely wrong not to have a brake on the powers that a CHIS can be given. We have seen in the rather unpleasant stories that have come out in the recent inquiry, where women have been seduced when organisations that do not place the state in danger have been infiltrated, that things can get out of hand. I do not want to be part of any endorsement of the commission of murder, rape or torture. That is why, although I believe the amendment can be improved during ping-pong, if it is put to the vote, I will support it.

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[Lord Cormack (Con) [V]]

My Lords, I first raised this issue at Second Reading and I tabled an amendment in Committee.

I very rarely disagree with my noble friend Lady McIntosh of Pickering, but the logic of her argument is that you cannot tackle crime without giving a multitude of bodies the opportunity to enlist people to commit crime. I just do not accept that. I have deleted the bottom five organisations in the list—the ones on which, as the noble Baroness, Lady Hamwee, said in her admirable introduction, people have focused most attention by asking, “Why are they there?”

I completely understand the argument about police forces and the National Crime Agency, et cetera. Having had conversations with officials in the Home Office and HMRC, I even understand the introduction of HMRC into the Bill, but, for the life of me, I just cannot see why, as the noble Baroness, Lady Chakrabarti, said a moment or two ago, police forces cannot deal with such bodies as the Environment Agency, the Food Standards Agency and the Gambling Commission.

Having a proliferation of bodies that are able to sanction people to commit crimes sends out a very bad signal. We take pride in our police forces and they should of course have the resources necessary to investigate all manner of crimes. People who commit crimes, whether within the orbit of the Environment Agency or the Food Standards Agency, should be brought to justice and punished if they are found guilty. But I just do not see a justification for this long list in the Bill. I very much hope that, when the Minister comes to reply, she will be able to convert and convince me, but I really do not think that she will. Whether I move my amendment to a vote will depend on what I hear, but I give notice that I might.

[Lord Dubs (Lab) [V]]

My Lords, it is a pleasure to follow the noble Lord, particularly as on this occasion, as quite often, I find myself in agreement with him.

When I listened to the noble Baroness, Lady McIntosh, I initially thought that there was something in her argument. Then I pondered again for a moment or two and decided that this was not an acceptable way of going forward, particularly as we could get into the position of mentioning a lot of other agencies and public bodies, all of which might have a similar claim to being included in the Bill as some of these have. It is going too far. When this issue got to the Joint Committee on Human Rights, we were quite puzzled by it all. I noticed that the media—certainly the national newspapers —had fun at the expense of the list.

I do not think that we can justify it. If we said that every public body had the right to be included in the list, that would be absurd. We should confine ourselves to bodies that deal with fighting serious crime and terrorism—major national and security issues. As I said, I think that this has gone too far. When I first heard about the list, I was not inclined to take it too seriously, but then I saw it on page 4 of the Bill. It does not seem to be a good idea, and I very much hope that we will pass one of the amendments that cleans up the list and makes it smaller and more sensible.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Dubs Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

This Bill is very dangerous in its current form. It could be improved today, on Report, without doing harm to its overall scheme or to the underlying intention that Ministers have explained time and again. Amendments 1 and 2 are a very easy and simple way in which to improve the Bill. If we allow it to pass unamended today, with this total advance impunity for agents of the state, a great many of them from all sorts of agencies listed in the Bill, we will open the door to countless abuses of power and scandals in relation to criminality, and abuses of human rights, potentially for many years into the future. That is not something that your Lordships’ House ever wants to do lightly.

[Lord Dubs (Lab) [V]]

My Lords, before I speak to the details of Amendment 3 in my name, I will comment briefly on the speech made by my noble friend Lady Chakrabarti. I am totally with her in saying that there are dangers in this Bill, and some of the amendments are very crucial indeed. I also agree with her that we must always be vigilant to protect the rule of law, human rights and civil liberties. Indeed, she has done that all her life, since the time she ran the organisation Liberty in such an effective manner. I have listened hard to what she has said, and I believe that the most effective safeguards would be some kind of prior oversight to check an organisation before it went ahead. I believe that is probably the most important safeguard. I look forward to debating the amendment to that effect in the next group.

In the meantime, I turn to Amendment 3. Its purpose is to amend the Bill so that victims of criminal conduct carried out under a CCA can access compensation. I speak as a member of the Joint Committee on Human Rights, and I am very much influenced in my contributions to this debate by the conclusions of the committee’s report, which has been widely praised across the House. The report noted that the Bill as introduced was potentially incompatible with human rights legislation, specifying:

“Article 1 ECHR requires the UK to secure the rights of all those within its jurisdiction, including the rights of victims of crime. Where a crime also amounts to a human rights violation, the victim has a right to an effective remedy under Article 13 ECHR. A victim also has an Article 6 right “to have any claim relating to his or her civil rights and obligations brought before a court or tribunal.’”


People may ask at that point about the criminal injuries compensation scheme. I put it this way: since the Bill would authorise criminal conduct lawful for all purposes, it would prevent a victim of authorised crime vindicating their rights by bringing a civil claim for compensation. Seemingly, this would also prevent a claim for compensation under the criminal injuries compensation scheme. This is not a novel proposal. The amendment is very close to the regime in Australia, which provides

“indemnification for any participant who incurs civil liability in the course of an undercover operation”.

The most usual and commonly quoted example, which my noble friend Lady Chakrabarti mentioned, is when a CHIS is driving a getaway car for a gang at high speed and has an accident. Under the Australian regime, the system would provide indemnification in the course of an undercover operation. In other words, in Australia, a civil claim can be brought against the perpetrator by the victim and compensation secured, but the state will then step in to indemnify the perpetrator against his or her losses. The amendment would ensure that the person authorised to carry out criminal conduct would not suffer the consequences of civil liability. It would also ensure that the victim of that conduct would obtain civil redress, while allowing secrecy to be maintained.

This amendment is fully in keeping with the overall intentions of the Bill, but it would provide an important safeguard. Otherwise, individuals will lose out badly through personal injury or by having their car damaged. At present, they are unable to obtain civil redress, and my amendment would put that right. It is an important but straightforward amendment. The principle is easy and I hope that the Government will find their way to accepting it. I beg to move.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I shall speak to my Amendments 21 and 22, which are intended to elucidate and, if necessary, reinforce the provision for criminal responsibility and civil recourse that already exists under the scheme in the Bill. I will start with criminal responsibility, which is the subject of sub-paragraphs (a) and (b) of Amendment 21.

Sub-paragraph (a) seeks confirmation that if a public officer who authorises a criminal conduct authorisation wilfully neglects to perform his duty, or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust, he should be open to prosecution for misconduct in public office. The Bill team has kindly confirmed to me in correspondence that nothing in the statute rules out the prosecution of an authorising officer for, for example, misconduct in public office if the authorisation was corruptly granted. I hope the Minister can confirm this when she responds. The concept of corruption is not as narrow as it may sound. It was elucidated last month by the Law Commission, in its report on misconduct in public office, as applying to the circumstances

“where a public office holder knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a ‘reasonable person.’”

There is another purpose to sub-paragraph (a): to clarify that a prosecution for misconduct in public office can be brought without the considerable inconvenience of first needing the CCA that was authorised to be declared a nullity. I believe that this follows from the existing text of RIPA and from the Bill. Section 27 of RIPA states that conduct will be lawful if it is authorised and if it is in accordance with the authorisation, but it does not create an immunity for the authorisation of such conduct. Nor is such an immunity created by the new Section 29B(8), which by its own terms is limited to conduct

“authorised by a criminal conduct authorisation”,

not conduct authorising a criminal conduct authorisation. I hope very much that the Minister will be able to offer me this second assurance as well.

Moving on to sub-paragraph (b), I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy. If the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy. I believe, however, that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences if the CCA has first been declared to be a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or indeed a criminal court. The Minister and the Bill team have been extremely helpful in explaining—[Inaudible]— and I believe there is nothing between us on this. I should be grateful if the Minister could confirm, thirdly, that this is the Government’s understanding.

Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect, it seems to me, are the powers vested in judicial commissioners under the Investigatory Powers Act. [Inaudible.]

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Moved by

[Lord Dubs (Lab)]

5: Clause 1, page 2, line 8, at end insert—
“(1A) Authorisations granted under this section require judicial approval in accordance with section 29C.”Member’s explanatory statement
This amendment imposes a requirement for prior judicial approval of CCAs (with provision for urgent cases), and relates to the amendment to Clause 1, page 3, line 16 in the name of Lord Dubs.

[Lord Dubs (Lab) [V]]

My Lords, in moving Amendment 5, I shall speak also to Amendment 23, which is grouped with it. I intend to seek the opinion of the House, unless I get a dramatic concession from the Minister at the end of the debate.

These amendments impose a requirement for prior judicial approval of criminal conduct authorisations, with some provision for urgent cases. I speak as a member of the Joint Committee on Human Rights. Our report, which has been widely applauded in this and previous debates on the Bill, has obviously been very helpful, and I am using a lot of information from it. I am also grateful to Justice, which provided a comprehensive report, with proposals for amendments. I am grateful to the Minister, who arranged for my noble friend Lady Massey and myself to have a briefing with some of the officials and senior police officers. We had a detailed discussion, and although it was directed at amendments relating to children which will be discussed on Wednesday, some of it is nevertheless relevant to the amendments that I am proposing today. I think I may quote from that without pre-empting the discussion about children on Wednesday.

The Government claim that prior judicial authorisation is not necessary because:

“The use of CHIS requires deep expertise and close consideration of the personal qualities of that CHIS, which then enables very precise and safe tasking.”—[Official Report, Commons, 5/10/20; col. 662.]


As I understand it, the Government believe that authorisations are better left to public authorities’ delegated authorising officers, who are, supposedly, more equipped to deal with CHIS than judicial commissioners, who are one step away.

However, the noble Lord, Lord Macdonald, the former Director of Public Prosecutions, who has been quoted more than once in this debate, said:

“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other authority.”


That seems pretty clear.

The use of prior judicial authorisation has, of course, been discussed in the past in relation to RIPA. But in 2016, the European Court of Human Rights held that judicial authorisation

“offers the best guarantees of independence, impartiality and proper procedure.”

This is particularly pertinent to surveillance, which is,

“a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society”.

The court concluded that

“it is in principle desirable to entrust supervisory control to a judge”.

That is part of the basis of this amendment.

Concerns about whether this is feasible do not carry much weight. There is no reason why judicial commissioners could not review CCAs; they are already well-practised in making complex assessments of sensitive material in an independent, detached manner and at short notice, and they are always very senior judicial figures.

The Select Committee looked at all this. It is very clear that the Bill does not provide for any independent scrutiny of criminal conduct authorisations before they are made and acted upon. The report of the Joint Committee on Human Rights noted that, while the process of granting criminal conduct authorisations would be kept under review by the Investigatory Powers Commissioner, his

“role in the oversight of CCAs is entirely ‘after the event’ … nor does the Bill provide for the IPC to be informed of authorisations at the time they are made, so that prompt scrutiny can take place.”

The report further noted:

“The lack of prior independent scrutiny for CCAs under the Bill stands in marked contrast to the procedures in place for other investigatory functions”,


such as police search warrants and phone tapping. The former Director of Public Prosecutions, Sir Ken Macdonald—as he then was—has been quoted several times as saying that:

“Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”


This has been quoted so often it must go in the Oxford Dictionary of Quotations. The argument in favour of judicial approval is there.

I refer to the Pat Finucane case in Northern Ireland—one of a number of cases—which is also mentioned in the report of the Joint Committee on Human Rights. There was a real abuse of powers which under my amendment would, I am pretty sure, have been prevented by a judicial commissioner. That case is very much unfinished business. Indeed, there is a plea, which I fully support, for a full independent review of what happened when Patrick Finucane was murdered by, or with the knowledge of, British agents. That is business for another day but, in the meantime, we have this amendment.

Some of these amendments are so crucial to the working of the Bill that it is difficult not to tread from one into the area of another, but this amendment is fundamental. Prior judicial approval for a CCA is absolutely essential to providing the safeguards which were referred to in the previous debate and which we need before we can allow such a Bill to become law in this country. I beg to move.

[Lord Hain (Lab) [V]]

My Lords, I will speak to Amendment 16 in my name and those of my noble friend Lord Blunkett, a former Home Secretary, the noble Lord, Lord Cormack, and the noble Baroness, Lady Wheatcroft, to each of whom I am grateful. It is a very straightforward amendment that would add confidence to the deployment of state-employed undercover officers by ensuring that each had to be authorised by a Secretary of State in exactly the same way as existing legislation requires for surveillance operations.

My noble friend Lord Blunkett and I both signed hundreds of warrants for surveillance operations under the Regulation of Investigatory Powers Act 2000, which was updated by this Conservative Government in the Investigatory Powers Act 2016, at a time when the noble Baroness, Lady Williams, was a government Minister, even if not in her current role. In other words, she and her Conservative Government re-enacted legislation requiring Secretary of State authorisation for surveillance, and so it is a puzzle to me why Ministers have not accepted this amendment.

The amendment endorses the identical principle for CHIS or undercover officer deployment in a way that would add to public confidence, which has been badly damaged by evidence that led to the current inquiry on undercover officers established by Prime Minister Theresa May and chaired by Sir John Mitting, a former High Court judge. It was established because the Conservative Government—in which the noble Baroness was a Home Office Minister at the time—felt undercover policing had got out of control and needed to be made more accountable.

The abuses so far revealed in the inquiry’s proceedings fully justify the Conservative Government’s decision to launch it. I will mention only several. We have learned that the campaign by the noble Baroness, Lady Lawrence, and her family to discover the truth about her son Stephen’s brutal racist murder was outrageously infiltrated by undercover officers. Why were they not instead targeting the racist criminals responsible for Stephen’s murder? If that deployment had been subject to authorisation by the Home Secretary, would it have happened? I very much doubt it, because surely a question would have been asked of the operational police decision as to why the innocent victims of a vicious racist murder were being targeted and not the criminals responsible.

There are many other examples, including my own personal experience. As confirmed by evidence given to the Mitting inquiry, from 1969 to 1970, a British police or security service officer was at almost every anti-apartheid and anti-racist meeting that I attended, private or public, innocuous and routine, or serious and strategic, such as stopping all white apartheid sports tours and combatting pro-Nazi activity. Why were they not targeting Nazi groups responsible for attacks on black people, Jewish citizens and Muslims?

Why were they not targeting the criminal actions of the apartheid state responsible for, among other things, fire-bombing the London offices of Nelson Mandela’s African National Congress in March 1982 and, in 1970, murdering South African journalist Keith Wallace, who had threatened to expose the apartheid security service operations in the UK? In June 1972, why did they show no interest whatever in discovering who in South Africa’s Bureau of State Security sent me a letter bomb capable of killing me, similar to those that had killed anti-apartheid leaders across the world?

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[Lord Dubs (Lab) [V]]

My Lords, the Minister has already been congratulated on her mastery of the detail. I congratulate her also on her physical and intellectual stamina. It has been quite a tour de force, particularly as I know what other business she has this week and on most days.

As someone who has had no security experience, I have found this a fascinating debate. I had very limited experience when I was a Minister in Northern Ireland. When I first got there, we had to sign extensions to hold people in detention under the terrorism legislation, although that was quickly handed over to judges. That was my primary direct experience, but it gave me an understanding of the security situation in Northern Ireland before and after the ceasefire. However, I bow to the greater experience of those who have strong security experience and indeed those who have strong experience of having—[Inaudible.].

I still believe that there is quite a strong thread of support in the debate for prior judicial authorisation. The “prior” bit has not really been hit on the head, despite the merits of some of the other arguments relating to other amendments. In the circumstances, and without my going through all the arguments—it is much too late for that—I would like to test the opinion of the House.