Asylum Seekers: Syria, Afghanistan, Eritrea, Iran and Sudan

Lord Murray of Blidworth Excerpts

Tuesday 24th January 2023 Lords Chamber

[The Lord Bishop of Durham]

To ask His Majesty’s Government what forecast they have made of the number of people from Syria, Afghanistan, Eritrea, Iran, and Sudan who will travel to the United Kingdom via a safe route in order to seek asylum in 2023.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

The United Kingdom welcomes vulnerable people in need of protection through our relocation and resettlement schemes. The number of people coming to the UK via safe and legal routes depends on many factors, including local authorities’ capacity to support them and the extent to which community sponsorship continues to thrive. There is no explicit provision within our Immigration Rules for someone to be allowed to travel here to seek asylum or temporary refuge.

[The Lord Bishop of Durham]

I thank the Minister for that Answer. We know from the latest available numbers that between September 2021 and September 2022, only close to 1,400 people were resettled to the UK through the specific safe routes of resettlement. This figure is 75% lower than in 2019, and the number of family reunion visas issued is 36% below the pre-pandemic figure. As the Minister knows, all the countries referred to in my Question have an asylum grant rate of over 80%, with Afghanistan, Syria and Eritrea sitting at over 97%. The number of individuals claiming asylum from these nations stood at more than 26,500. Now that the Government are deciding admissibility on the basis of arrival, will they establish further safe routes for high grant rate countries such as Sudan, Eritrea, Syria and Iran, to reduce the need for asylum seekers to travel irregularly?

[Lord Murray of Blidworth (Con)]

The principle is clear in the refugee convention that people claiming asylum need to be in the country in which they seek refuge, having come directly from that country. While we sympathise with people in many difficult situations around the world, we are not bound to consider asylum claims from the large numbers of people overseas who might like to come here.

[Lord German (LD)]

My Lords, we learned from the Home Secretary and her team giving evidence to the Home Affairs Select Committee that a hypothetical 16 year-old orphan from an African country such as Sudan or Eritrea fleeing war and religious persecution, with siblings legally in the United Kingdom, has no safe or legal route to seek refuge in the United Kingdom. Why has this happened?

[Lord Murray of Blidworth (Con)]

As the noble Lord will have heard in my recent Answer, the principle is that you claim asylum in the first safe country you reach. The question Mr Loughton posed at the Home Affairs Select Committee is answered like this: depending on the country you are from, you could engage with the UNHCR; that would be a way of getting leave to enter the UK in order to put in an asylum claim, but clearly, there are some countries where that would not be possible.

[Lord Clark of Windermere (Lab)]

My Lords, I am disappointed with the Minister’s negative reply. If we take one country alone, Afghanistan, have the Minister and the Government forgotten that thousands upon thousands of Afghans, in the 40 years of war, sided with and fought for Britain there? Why are they neglecting them now and going back on their earlier promises?

[Lord Murray of Blidworth (Con)]

The Government certainly have not forgotten the people of Afghanistan. As the noble Lord will remember, Operation Pitting was the largest UK military evacuation since the Second World War, during which we evacuated about 15,000 individuals to the UK. In the year since the evacuation began on 14 August 2021, a further 6,000 arrived in the UK via neighbouring countries.

[Lord Alton of Liverpool (CB)]

My Lords, notwithstanding what the Minister has said about the importance of addressing the right reverend Prelate’s Question about safe and legal routes, does he not accept that, with the UNHCR that he has just referenced saying that there are now between 75 million and 80 million people displaced in the world, this is a global problem that requires international solutions? Should the Government not be leading the way in drawing countries together to look at the root causes of the displacement, and trying to stop these terrible, perilous journeys in small boats, whether across the channel, the Aegean or the Mediterranean, leaving a trail of sorrow behind them?

[Lord Murray of Blidworth (Con)]

There is much in what the noble Lord says. It is sadly the truth that we cannot help everyone, with worldwide displacement now standing at around 100 million, not merely 70 million as the noble Lord suggested. The Government continue to offer safe and legal routes for those in need of protection. Since 2015, we have resettled more than 28,000 refugees from regions of conflict and instability through the global UK resettlement scheme, community sponsorship and the mandate schemes, under which the UNHCR will refer the most vulnerable refugees from across the globe for resettlement to the UK.

[Viscount Stansgate (Lab)]

My Lords, whatever the outcome of Operation Pitting, it did leave behind people who should have been included. Do the Government remain committed to helping the families of interpreters who work for British military personnel and political leaders visiting the country, including the former Prime Minister, who were unable to get out and who remain in terrible danger in Afghanistan?

[Lord Murray of Blidworth (Con)]

The answer to the noble Viscount’s question is yes. The Afghan relocations and assistance policy, launched on 1 April 2021, offers relocation to eligible Afghan citizens who worked for or with the United Kingdom Government locally in Afghanistan. The ARAP recognises the service of eligible Afghan citizens and the risks arising to them and their dependent family members as a result of their work.

[Lord Hannay of Chiswick (CB)]

My Lords, can the Minister tell the House what provision in the refugee convention permits us to refuse to even consider someone who arrives on our shores seeking asylum?

[Lord Murray of Blidworth (Con)]

The provision is Article 31(1).

[Lord Coaker (Lab)]

My Lords, the asylum system is in chaos: 140,000 asylum seekers, and rising, are waiting for an initial decision; 90,000 have been waiting for over six months, and more than 40,000 for between one and three years. It is also reported that 725 claimants, of whom 155 are children, have been waiting over five years. How many of these cases apply to these five countries? Will the Minister join the Prime Minister in promising to clear the asylum backlog by the end of the year? It is action we need, not gimmicks.

[Lord Murray of Blidworth (Con)]

The noble Lord is entirely right: it is action we need, and I can certainly recommit to the ambition, outlined by the Prime Minister in his statement, to clear the backlog. As to the various countries within the backlog, those statistics exist but I am afraid I do not have them to hand, so I will need to write to the noble Lord about them.

[Lord Bellingham (Con)]

My Lords, can the Minister say something about the Government scheme for allowing direct applications from people in Syrian refugee camps? This is surely a far better route than the much more perilous one used by those trying to come here illegally.

[Lord Murray of Blidworth (Con)]

I entirely agree with my noble friend and clearly, that is the purpose of the UK resettlement scheme. Perhaps it would assist if I outlined that between 2015 and September 2022, we offered a place to nearly 450,000 men, women and children seeking entry via safe and legal routes, including those from Syria but also those from Afghanistan, Ukraine and Hong Kong, as well as the family members of refugees.

[Lord Roberts of Llandudno (LD)]

My Lords, when the folk arrive here, they are given an ASPEN card, which did provide £35 a week for their subsistence. Has that gone up with inflation? What is the value now? Is it still £35, as it was 10 or 15 years ago, or has it gone up?

[Lord Murray of Blidworth (Con)]

I can certainly provide detailed information on the asylum support provisions. Clearly, those in hotels have their accommodation provided for them and are provided with food and a small amount of money for expenditure on essentials. Those in dispersal accommodation receive a financial sum, which has changed with inflation. I will be able to provide the noble Lord with the precise statistics by letter; I am afraid this is quite a long way from the topic of the Question.

[Lord Singh of Wimbledon (CB)]

My Lords, the UK says that asylum seekers must go to the first safe country, but the United Nations commissioner for human rights says that that is incorrect. Would the Minister like to comment?

[Lord Murray of Blidworth (Con)]

The Government’s position is clear: Article 31 requires that a person comes directly to the first safe country and is therefore obliged to claim in that country. Indeed, it is upon that principle that the European Union agreed the Dublin provisions about the return of asylum seekers to places where they made their first claim.

Immigration (Leave to Enter and Remain) (Amendment) Order 2023

Lord Murray of Blidworth Excerpts

Tuesday 24th January 2023 Lords Chamber

Moved by

[Lord Murray of Blidworth]

That the Order laid before the House on 7 December 2022 be approved. Considered in Grand Committee on 17 January.

Motion agreed.

Children Seeking Asylum: Safeguarding

Lord Murray of Blidworth Excerpts

Monday 23rd January 2023 Lords Chamber

[Lord Scriven (LD)]

My Lords, I beg leave to ask a Question of which I have given private notice, and in so doing point out my interest as a vice-president of the Local Government Association.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

The rise in small boat crossings has meant that we have had temporarily to accommodate children in hotels while local authority accommodation is found. When a child goes missing, a multiagency missing persons protocol is mobilised. Many of those who have gone missing are subsequently traced and located. We must end the use of hotels, and as such we are providing local authorities with children’s services the sum of £15,000 for every eligible young person they take into their care from a UASC—that is, an unaccompanied asylum-seeking child—hotel by the end of February 2023.

[Lord Scriven (LD)]

My Lords, I thank the Minister for that Answer. As the chief constable of Great Manchester Police has said, these vulnerable young people are going missing after they have been snatched by those involved in drug crime and child sex trafficking. Experts indicate that the present system is not working as well as it should and suggest one major change that the Home Office could implement. That is that the Home Office becomes the corporate parent of those young people until such time as the local authority has completed the assessment and arrangements have been made. Will the Home Office look into that and implement it?

[Lord Murray of Blidworth (Con)]

There are many reasons why children go missing from care generally. This is true also of unaccompanied asylum-seeking children. We are not in a position—and it would be wrong—to make generalisations regarding the reason for their going missing. I will take back to the department the suggestion that the Home Office could become a corporate parent.

[Lord Trefgarne (Con)]

My Lords, what is the minimum age at which an unaccompanied minor can apply for asylum?

[Lord Murray of Blidworth (Con)]

There is no minimum age for application for asylum.

[Lord Alton of Liverpool (CB)]

My Lords, is it not deplorable that over an 18-month period, some 600 unaccompanied children have disappeared from this hotel and some 79 are still missing? What can the noble Lord tell us about the fate and the plight of those missing children? What were their countries of origin? What safeguarding is now in place at that hotel? Most importantly of all, the noble Lord has said the use of such hotels will be phased out, so how long will that take?

[Lord Murray of Blidworth (Con)]

I thank the noble Lord for his question. Clearly, the statistics he cited are not entirely correct. Let me put on record what they are. The Department for Education collects data annually on the number of looked-after children in England, as well as missing, unaccompanied asylum-seeking children. The Home Office has no power to detain unaccompanied asylum-seeking children in those hotels, and we know that some of them go missing. Many of those who have gone missing are subsequently traced and located, as I have already said. The numbers are as follows. Over 4,600 children have been accommodated in hotels since they were opened in July 2021. Of the 440 missing episodes—the term “episode” is used, as some children go missing and are then located but subsequently go missing again—all have been male save for four who have been female. Two hundred of the children remain missing, and only one of them is female; 88% are Albanian nationals and 13 are under the age of 16. The average length of stay in hotels for UASCs is 18.23 days. I am afraid I cannot give an exact answer to the second part of the noble Lord’s question, on how long it will be until we can phase out the use of hotels. Our hope is to phase them out as soon as we can.

[Baroness Armstrong of Hill Top (Lab)]

The people I have spoken to who have been to visit the hotels have come away very anxious about the lack of knowledge or ability of anyone around or outside the hotel in safeguarding; and, as the Minister has just said, they cannot detain children. They know that predators are around, and we know that predators are one step ahead in terms of trafficking and indeed child sex abuse of most of the organisations that are around to safeguard. This is a huge issue. It is a shaming issue, and I hope the Government take it very seriously and work very hard to make sure that trafficking, as we now know it, is not being fuelled by the policy around children unaccompanied in hotels.

[Lord Murray of Blidworth (Con)]

I can assure the noble Baroness that the Home Office takes very seriously the safeguarding of the young people who are in the hotels. Their safety and well-being are our primary concern. As I have already said, we have no power to detain them; however, children’s movements in and out hotels are monitored and recorded. They are also accompanied by support workers when attending organised activities and social excursions off site, or where specific vulnerabilities are identified.

When a young person goes missing, the missing persons protocol is followed, led by our directly engaged social workers. We have a protocol called “missing after reasonable steps”, which enables children’s homes and supported accommodation placements to have more ownership over the missing episodes of children in their care. It is a set of forms that helps with safeguarding, planning and prevention prior to a child being reported missing; it also encourages lines of inquiry, as is expected of a person with responsibility for that child. When used correctly, similar protocols in police forces have safely reduced the number of missing episodes from placements by 36%.

[Lord Touhig (Lab)]

My Lords, as I speak at this minute, thousands of unaccompanied asylum-seeking children across Europe are suffering. They are being abused and trafficked. They are self-harming; indeed, as a report from the Council of Europe, which I took part in, showed, a number have taken their own lives. These refugee children not only need our protection; they are entitled to it. Can the Minister say whether he agrees with that and whether this issue will be at the core of the Government’s approach to looking after them?

[Lord Murray of Blidworth (Con)]

I can assure the noble Lord that, as I have already said, the safeguarding and welfare of these children are among the department’s top priorities.

[Lord Lexden (Con)]

How frequently are checks made on the hotels, and by whom?

[Lord Murray of Blidworth (Con)]

As I hope I have made clear, responsibility for the inspection of the hotels rests with the borders inspectorate. The hotels have been inspected in the past year. It is appreciated that hotel accommodation is a temporary means of accommodating children. As I hope I have made clear, we try to make those stays as short as possible and ensure that the accommodation is of the highest quality possible.

[The Lord Bishop of Durham]

My Lords, I thank the Minister for the care with which he is responding today; it is appreciated. Can he say how well qualified the social workers and others are to support unaccompanied asylum-seeking children, because there are particular issues around them? Would it not be better if we had a system of placing an advocate for each child, who could help them through the system, as soon as they arrive?

[Lord Murray of Blidworth (Con)]

Clearly, the move into hotels is as swift as we can make it once the unaccompanied asylum-seeking child comes to the attention of the authorities. The hotels have staff consisting of team leaders and social workers, all of whom are fully trained and able to work with the young people. All the children receive a welfare interview, which includes questions designed to identify any potential indicators of trafficking or safeguarding issues. I assure the right reverend Prelate that the steps are taken seriously among the staff of the hotels to assist the children in so far as they can.

[Baroness Hamwee (LD)]

My Lords—

--- Later in debate ---

[Baroness Hamwee (LD)]

I thank the noble Baroness. I hope that the Minister will be confirmed in his pursuing of my noble friend’s point about corporate parenting by the chorus of approval that the suggestion received. Sadly, children going missing from care is not a new issue, as the Minister said. What is being learned from the two situations? What information and experience are being swapped, including on identifying the fact that traffickers, criminals and other dodgy people are hanging around outside different establishments hoping to catch a hold of their victims, as I shall call them as well as children?

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for her question. An important feature of the hotel accommodation specifically provided for UASCs is the security for each hotel facility. Clearly, that security then matches the layout of each hotel and, as I say, residents are asked to sign in and out. Any suspicious activity identified by the security contractors is reported to the police and should be investigated by them if they think that there are grounds to do so.

[Lord Austin of Dudley (Non-Afl)]

My Lords, the Minister has just told us that, on his own figures, hundreds of children have gone missing. Has he asked his officials what investigations that department has made to find out where they have gone, who they are with and what risks they face?

[Lord Murray of Blidworth (Con)]

I hope that, as I have already set out, as with children’s homes more generally, when there is a missing person episode, the missing person protocol is followed, which involves investigation by the police. The Home Office is obviously not in a position to replace the police in that investigatory task and, accordingly, that is how the children are identified when they can be.

[Lord Coaker (Lab)]

We are all horrified by what we have heard and read about these cases of children going missing—I will say “kidnapped”—from some of these homes. Is it true that the Home Office were warned months ago about these problems? Is it true that the Home Office ignored those warnings and failed to act? If so, that is a failure of the state to act as a parent. With Home Office sources denying that these children have been kidnapped, can the Minister at least confirm that the department accepts legal responsibility for their safety now, even if it did not in the past?

[Lord Murray of Blidworth (Con)]

Certainly, the department does not know of any cases of kidnap. The reports in the media over the weekend are of course the subject of investigation within the Home Office but, at the moment, nothing like that has been reported to us to my knowledge.

[Baroness Butler-Sloss (CB)]

My Lords, as a matter of law, the children are in the care of the local authority of the particular hotel, so I am not sure about corporate parenthood. It may be a very important situation, but I suspect that it is not a legal situation. What is perhaps more important is the Government giving additional money to the local authorities where these hotels are to get foster parents and homes for the children so that they do not stay in hotels.

[Lord Murray of Blidworth (Con)]

I entirely agree with the legal analysis by the noble and learned Baroness. As I hope I made clear in my earlier Answer, further money is provided—I mentioned £15,000—to each local authority in relation to the unaccompanied asylum-seeking child.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have listened carefully to the answers given. Having read the lurid headlines and newspaper reports, I was under the impression that people trafficking of these young people was a given. It is possible that I am confused, so can the Minister clarify that there is no evidence of what has happened or why these children have gone missing? If there is no evidence, is it not attendant on all of us in this place not to allege what we do not know to be true as though it were fact?

[Lord Murray of Blidworth (Con)]

The noble Baroness is very perceptive. Unfortunately, there is a temptation to adopt the most lurid interpretation but, as I said a moment ago, there are many reasons why children go missing. There is no basis on which to make generalisations as to those reasons.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Evans of Weardale (CB)]

I thank the noble Baroness very much for that clarification; in that case, the amendment certainly needs some amendment itself.

I am also puzzled as to the route proposed that any disclosure, particularly from one of the intelligence agencies, can go to any public authority. Again, that seems a surprising route for a whistleblowing channel for somebody in the intelligence and security agencies.

More particularly, and more importantly, I absolutely fail to recognise the culture of cover-up that the noble Baroness, Lady Kramer, cites. Having worked in the Security Service for 33 years, I am confident in saying that, far from there being a culture of cover-up, there was in fact a strong willingness to speak up, as far as I could see. There was strong and, at times, fairly heated internal debate on some of the ethical matters that have been cited in this debate. So I do not believe that the characterisation of the intelligence agencies we have just heard in any sense accurate. Although the noble Baroness, Lady Manningham-Buller, gave the complete list of everybody to whom a member of the agencies could go, I think that almost anybody in the agencies would recognise their ability to go to the internal ethics counsellor—a role that plays an important part in actively encouraging debate of these issues—who has a direct right of access to the director-general of the day; I am sure that that would still be the case. That role has now extended from the Security Service to the other intelligence agencies. Also, it was clear and straightforward how you obtained the contact details for the external counsellor who acted as a whistleblowing channel directly outside the service. Of course, that was put in place specifically because of previous concerns that there was no such provision, and it was reflected in the legislation of the day.

I feel that the detail of this amendment is not clear —certainly not to me. The need for this amendment has not been made clear, in my view, because it is based on a rather misleading characterisation of the internal culture of the intelligence services. In my experience, there has been considerable focus on ethical matters and the ability internally to debate those.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I thank Members of the Committee for all their speeches. Amendment 119 seeks an assessment of how the Act relates to the Official Secrets Act 1989. As we set out in last week’s debate, the new espionage offences in Part 1 of the Bill replace and reform the existing provisions in the Official Secrets Acts from 1911 to 1939. They carry strict tests for a person to be caught within those sections. For example, the first two offences apply when a person is acting for, on behalf of, or with the intention to benefit a foreign power. This is distinct from the Official Secrets Act 1989, which covers unauthorised disclosures by Crown servants and government contractors. As the Committee knows, the Government are not reforming the 1989 Act through the Bill, as has been observed this evening. Under the existing law, it is possible that a person making a damaging disclosure could commit both the espionage offence in the Official Secrets Act 1911 and an offence under the Official Secrets Act 1989.

Pausing there, I thank the noble Lord, Lord Hacking, for his contribution in relation to the 1911 Act. The difference, drawn out in the fact that you could commit both an offence of espionage under the Official Secrets Act and an offence under the 1989 Act, will continue to be the case. It is possible that a person could commit an offence under two pieces of legislation simultaneously and be charged in relation to both. That is not a matter unknown in the criminal law. Any overlap between the espionage offences in the Bill and the Official Secrets Act 1989 allows us to prosecute damaging acts in the most appropriate way. Where a person commits both a 1989 Act offence and an espionage offence under the Bill, the charging decision would be taken by the Crown Prosecution Service in accordance with the Code for Crown Prosecutors, as is always the case. CPS prosecutors select the charges that they consider are most appropriate on the facts of each case, and to reflect the nature of the wrongdoing. I hope that this explanation reassures the Committee that the Government have carefully considered the interaction between our new offences in the Bill and those in the 1989 Act.

The noble Lord, Lord Coaker, raised a question regarding reform of the 1989 Act, and I will address it directly. The Government’s view is that the Official Secrets Act 1989 is an essential part of our ability to protect national security and sensitive information. However, the views and concerns raised by stakeholders in response to our public consultation for the Bill, including those in favour of not reforming the Act at all, highlight the complexity of the legislation and the wide variety of interests that should properly be considered before pursuing any reform. Given its complexity, we are also concerned that reform of the Official Secrets Act 1989 at this time may distract from the Government’s package of measures in the Bill to counter state threats, and prevent us from providing law enforcement and the intelligence agencies with the tools that they need now directly to tackle these threats. Accordingly, we do not have any immediate plans to pursue reform of the Official Secrets Act 1989, but will continue to keep that position under review. The matters raised by the noble Lord, Lord Wallace, are well considered. Issues such as whether to increase maximum sentences under the Official Secrets Act 1989 would be considered as part of potential reform proposals and would be viewed in the round with the measures of sentences in the Bill.

Amendment 120 tabled by the noble Baroness, Lady Kramer, proposes the establishment of a new office for the national security whistleblower. We are told that the aim of such an office would be to protect whistleblowers who make disclosures related to offences under the Bill where disclosures are considered to be in the public interest. Of course I pay tribute to her in her ongoing work and efforts to champion the important cause of whistleblowing. The Government are committed to ensuring that our whistleblowing framework is robust, and I confirm that the business department intends to carry out the promised review of the existing framework, and that further details will be set out in due course in relation to that.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister. He is aware of the point I raised earlier in Committee, which, as he correctly pointed out, pertained more to the Official Secrets Act in respect of the authorised disclosure of information. The Law Commission’s recommendation is clear—that there should be an independent statutory commissioner, to which individuals can go, who has investigatory powers—but the Minister says that there are no plans to reform the 1989 legislation.

We heard from the noble Lord, Lord Evans, and earlier from the noble Baroness, Lady Manningham-Buller, that they do not recognise this culture, but the Law Commission came to its own view and its own recommendation. Do the Government accept that recommendation but then say that they are not going to do anything about it, or will we have to find a way to bring together the disclosure of information and the points that my noble friend raised? The Law Commission’s recommendation was perfectly clear, and it was not besmirching the culture within the agencies. It was a very clear recommendation.

[Lord Murray of Blidworth (Con)]

Indeed, the Law Commission made a recommendation about a potential reform to the 1989 Act. As I have already said, that is not the purpose of this Bill and will be a matter for a future reform, which will not be conducted immediately, as I already explained in answer to the point from the noble Lord, Lord Coaker. The Law Commission’s recommendation will have considerable weight but, at this stage, I cannot prejudge any government decision in relation to the 1989 Act.

In last week’s debate, the noble Lord, Lord Coaker, asked about the Government’s plans to update internal whistleblowing guidance. I can confirm that the Government regularly keep this guidance under review and, last year, they updated it to include specific reference to how to raise an issue that would require disclosure without breaching the Official Secrets Act 1989. The updated internal guidance has been shared across departments and agencies, with confirmation from all Whitehall departments that a review of their own processes and procedures has been undertaken or is planned.

Across government, organisations have also continued to undertake activities further to develop a safe and supportive culture for raising concerns. Over the last year, the majority, including all 17 Whitehall departments, have undertaken communications through awareness-raising events and campaigns, including an annual “Speak Up” campaign.

We of course understand that journalists have a specific and important role to play in holding government to account in our democratic society. We also understand that responsible journalists do not want unwittingly to put lives at risk or compromise national security. That is why we have robust processes in place which enable journalists to mitigate the harm caused when considering the publication of potentially damaging information.

For example, during the Government’s public consultation on the Bill, several media stakeholders commented on the value of the Defence and Security Media Advisory Committee—the DSMA—which alerts the media to the consequences of disclosing certain types of information and provides advice on how to mitigate damage, while leaving editors to judge whether to publish or broadcast. A number of editors already engage with this valuable process when considering the publication of sensitive information, and we encourage them, and others, to continue to do so.

The Government are committed to ensuring that these channels are safe, effective, and accessible. Accordingly, for the reasons I have just set out, the Government, with regret, cannot accept the tabled amendments and invite their withdrawal.

[Lord Coaker (Lab)]

My Lords, I will be brief, but will start by thanking the Minister for his response and all noble Lords for their contributions to this short but important debate. I am grateful to the Minister for following up on my question from last week about what was happening with the updating of guidance for people in departments across government who wish to raise concerns. But frankly, the headline from what the Minister has said is that the Government have kicked the reform of the Official Secrets Act 1989, which was never particularly on the immediate horizon, into the long grass. That is deeply disappointing because, irrespective of one’s view, the issues of the public interest defence and people being able to come forward—whistleblowers, if you want to call them that—will not go away. Reforming the Official Secrets Act would have enabled us to debate that and come up with an Act that is relevant to 2023 and beyond. As I say, it is deeply disappointing that the Minister has effectively kicked that reform into the long grass, and that is the headline from this response to the amendments. With that, I beg leave to withdraw my amendment.

Asylum Seekers

Lord Murray of Blidworth Excerpts

Tuesday 17th January 2023 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, on behalf of my noble friend Lord Dubs, I beg leave to ask the Question standing in his name on the Order Paper.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, the latest immigration statistics published by the Home Office show that 143,377 people were waiting for an initial decision on their asylum claim as of September 2022, and that 15,987 people were granted asylum or other leave in the year ending September 2022. Of the 11,974 enforced or voluntary returns, there were 774 enforced or voluntary asylum-related returns in the year ending June 2022.

[Lord Hunt of Kings Heath (Lab)]

In last month’s debate in the name of the most reverend Primate the Archbishop of Canterbury, my noble friend Lord Dubs made a very moving speech, where he said:

“The refugee issue is testing our humanitarian principles to the ultimate. Our response will determine what sort of country … we want to be … but particularly how we value our fellow human beings who have suffered greatly from … wars and conflicts.”—[Official Report, 9/12/22; col. 378.]


Given the lamentable performance of the Minister’s department, as we have heard from those figures just now, and the intemperate language used by the Home Secretary when she described asylum seekers as invaders, does he think this Government meet my noble friend’s humanitarian test?

[Lord Murray of Blidworth (Con)]

Yes, I do. The Prime Minister was clear in his remarks on 13 December that it is a key priority of the Government to address the unlawful crossings of the channel, to tackle illegal migration and to ease pressure on the asylum system. As the noble Lord knows, we will achieve that by doubling the number of caseworkers to help to clear the asylum backlog by the end of 2023, we will re-engineer the end-to-end process by reducing paperwork and interviews, and we will allocate dedicated resources to different nationalities in the asylum backlog.

[Baroness Hamwee (LD)]

My Lords, in speaking just before Christmas to the Justice and Home Affairs Committee of your Lordships’ House, which I am lucky enough to chair, the Home Secretary said that guidance for caseworkers was to be made shorter and easier to use. Can the Minister reassure the House that the Home Office is consulting experienced counsellors and therapists in the redesign so that the individual circumstances and experiences of each applicant can be properly assessed?

[Lord Murray of Blidworth (Con)]

Yes. Any such revised guidance will take into account input from a whole range of stakeholders, no doubt including those of the type mentioned by the noble Baroness.

[Lord Browne of Ladyton (Lab)]

My Lords, I know from my own experience when I was Minister for Immigration that when backlogs are large it is imperative to look after the most vulnerable people in custody. Why then did the Home Secretary end the system of annual investigations into the treatment of vulnerable adult detainees? Is the detention system working so well now that these investigations are no longer necessary, or are there some other protections for those people to ensure that the welfare of vulnerable adult detainees has not been compromised?

[Lord Murray of Blidworth (Con)]

Certainly the inspection of detention facilities will continue. I am not aware of any change in policy in relation to the particular category of detainees that the noble Lord mentioned, but I will make inquiries in the department and write to him on that.

[Lord Hannay of Chiswick (CB)]

My Lords, would the Minister tell the House what provision in the refugee convention, of which we are a party, permits us to refuse to even consider the asylum request of someone who arrives, irrespective of how they arrive?

[Lord Murray of Blidworth (Con)]

As the noble Lord will be aware, in the Rwanda decision, the High Court considered the application of Article 31 of the refugee convention. I commend the High Court’s reasoning to the noble Lord in answer to his question.

[Baroness Berridge (Con)]

In the debate in the name of the most reverend Primate the Archbishop of Canterbury, there was much discussion of the Ukraine situation and Hong Kong. To the general public, those schemes seem like asylum to a place of safety, but in fact they are technically visa schemes. Could my noble friend the Minister outline that we do not seem to have the same problem in relation to those schemes? If he does not have the figures to hand, could he write to confirm what the average wait time is for vulnerable groups applying for those visas?

[Lord Murray of Blidworth (Con)]

My noble friend is correct. I do not have to hand the figures on the wait for BNO applications from Hong Kong, which I think was the thrust of her question. I will find that out and write to her.

[Lord Leong (Lab)]

My Lords, on 13 December 2022, I asked the Minister about the post-traumatic stress disorder suffered by Hong Kongers who fled the crackdown by the ruling Communist Party and are currently seeking asylum here. I asked him:

“What assessment have the Government made to identify those suffering from PTSD?”


He replied:

“On the BNO Hong Kong cohort, I do not have the answer, and I will write to the noble Lord in relation to it.”—[Official Report, 13/12/22; col. 551.]


I am still waiting for that answer.

[Lord Murray of Blidworth (Con)]

I am sorry to hear that the noble Lord has yet to receive an answer. I will chase it and endeavour to get a response to him as soon as I can.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, in his reply to the noble Lord, Lord Hannay, the Minister referred to a judgment which no doubt is available for anyone to read. However, for the benefit of the House, would he be prepared to summarise it? That would give an answer to the noble Lord’s question: what, in particular, allows the Government to discriminate between asylum seekers who arrive by one method and those who arrive by another?

[Lord Murray of Blidworth (Con)]

The 1951 convention describes the categories of people who might seek protection from their native country, and, as a result, they are entitled to make a claim for asylum. There is nothing in the text of the convention which limits the receiving nation state’s obligation to consider applications from various classes of nations. That is why we have international agreements; for example, when we were members of the European Union, there was an agreement that other European Union member nations were not able to lodge asylum claims within the United Kingdom.

[Lord Kerr of Kinlochard (CB)]

Would the Minister agree that it would be better if those waiting in that internal queue were able to work—better for them, the Exchequer and the country?

[Lord Murray of Blidworth (Con)]

I am afraid that I must disagree with the noble Lord. It is clear that one of the major pull factors for people crossing the channel is that they hope to work in Britain. Legally allowing people to work would increase the pull factors for them to embark on dangerous and illegal journeys across the channel.

[Lord Coaker (Lab)]

My Lords, time after time, we hear the Minister try to explain away the chaos of the Government’s asylum policy. Time after time, new legislation is announced, chasing headlines. Time after time, the Chamber hears the appalling asylum case figures, with the shocking human consequences, as we have just heard again today. I will ask about one example: when will the doubling of asylum caseworkers to 2,500, as briefed by the Prime Minister last year, happen? Yesterday, the Minister could not confirm that the recruitment of those caseworkers had even started. It is a shambles, is it not?

[Lord Murray of Blidworth (Con)]

The Home Office currently employs about 1,280 asylum decision-makers and will double the number of caseworkers to help to clear the asylum backlog by the end of next year. Recruitment and retention strategies are in place, with the aim of increasing staffing, reducing the output in the number of cases awaiting a decision and increasing outputs of decisions. We have increased the number of asylum caseworkers by 112%, from 597 staff in 2019-20. We will recruit more decision-makers, which will take our expected number of decision-makers to 1,800 by summer 2023 and to 2,500 by September. We have implemented a recruitment and retention allowance, which has reduced decision-maker attrition rates by 30%, helping us to retain experienced asylum decision-makers.

[Lord Purvis of Tweed (LD)]

My Lords, at the end of October, 222 unaccompanied minors were unaccounted for in the system. In November, I asked the Minister what the figure was, and he said that he did not know. The Government have presumably made major progress on unaccompanied children in the system, so how many are currently unaccounted for?

[Lord Murray of Blidworth (Con)]

As the noble Lord knows, local authorities have a statutory duty to protect all children, regardless of where they go missing from. On the concerning occasion when a child goes missing, those local authorities work closely with local agencies, including the police, urgently to establish their whereabouts and ensure that they are safe. Ending the use of hotels for unaccompanied asylum-seeking children is an absolute priority for the Government. We will have robust safe- guarding procedures in place to ensure that all children in our care are as safe and supported as possible, as we seek urgent placements with a local authority.

Immigration (Leave to Enter and Remain) (Amendment) Order 2023

Lord Murray of Blidworth Excerpts

Tuesday 17th January 2023 Grand Committee

Moved by

[Lord Murray of Blidworth]

That the Grand Committee do consider the Immigration (Leave to Enter and Remain) (Amendment) Order 2023.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, the order, laid before the House on 7 December 2022, is required to enact one very minor change to the legislation which sets out the form and manner by which leave to enter the United Kingdom is granted and refused. It will amend the eligibility criteria for people seeking to enter the United Kingdom via an automated e-passport gate, or e-gate, so that eligible, accompanied children as young as 10 may do so. The lower age limit in the present instrument is 12.

This statutory change is needed to enable a limited trial to take place in the February half term, which will examine whether the lower age limit for entry via an e-gate should be 10 years, rather than 12, moving forward. We hope that this will have the effect of accelerating the passage through the airport of families with children aged 10 and 11. In order to carry out the limited exercise—the pilot—it is necessary in law to first pass this order.

The proposed proof of concept exercise will take place, as I said, in the February half term. It will be limited to three airports: Stansted, Heathrow terminal 5 and Gatwick’s north terminal. Once completed, the Home Office will make an assessment of whether the lower age limit of 10 should be more widely adopted.

The Government’s ambition for our future border involves making maximum use of automation. The majority of passengers will routinely cross the UK border using automation as their only point of contact. Indeed, this ambition was set out in last year’s New Plan for Immigration strategy, in which the proposed proof of concept involving younger passengers was made public. Increasing, in a controlled manner, the number of passengers eligible to use an e-gate is a logical next step.

Noble Lords will be aware that some form of automation is already used by large numbers of people passing through the UK border. Indeed, there has been significant widening of the pool of nationals eligible for e-gate entry in recent years. The e-gates started in 2008 and there has been progressive expansion. A previous amendment to the 2000 order in May 2019 extended e-gate eligibility to visitors from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America.

The continued use of e-gates should be seen in the context of the development of our new global border and immigration system, which makes better use of data, biometrics, analytics and automation to improve security and fluidity across the UK border. The use of e-gates is an important part of that approach, as they provide a safe, secure and efficient means of processing arriving passengers, allowing our highly trained Border Force officers to focus their efforts on those who seek to abuse or exploit the system and those who are vulnerable, as well as wider border threats.

For eligible families with young children, there are obvious advantages to being able to enter via an e-gate, in that they may enter the UK swiftly and effectively without having to queue to be seen by a Border Force officer. We believe that this in turn benefits others by minimising queuing times and bottlenecks at busy UK ports, especially at peak times of the year, such as half term or the summer school holiday season.

There are a number of important questions that must be answered before a permanent lowering of the lower age limit. These include whether children aged 10 and 11 have the cognitive ability to use the technology efficiently and, indeed, whether the technology is able to process such young passengers. It is because of these and other considerations that we must first conduct this short trial, which will be closely monitored by officials and have its results rigorously analysed.

Needless to say, the Home Office takes most seriously its statutory duty to safeguard and promote the welfare of children. We will use the live trial to consider whether there may be any unintended consequences for the welfare of younger passengers, such as anxiety if they become temporarily separated from their parents. To be clear, there will be no decision to extend e-gate eligibility to younger passengers if we consider that doing so would expose them to any safeguarding risks that cannot be mitigated.

Although this amendment enables us in law to allow eligible passengers younger than 12 to use an e-gate, it does not confer a right on those passengers to do so. It does not mean that passengers aged 10 and 11 must be able to use an e-gate at any UK port with that facility. Eligibility will be limited to accompanied 10 and 11 year-olds of eligible nationality at the three participating ports, and only for a 14-day trial period. At other ports, the lower age limit will remain where it is currently set: at 12 years of age.

This order enacts the most modest changes to its parent legislation but allows for a significant next step to be taken in developing a secure and smooth border that demonstrates to the rest of the world that the UK is open for business. I commend it to the Committee.

[Lord German (LD)]

My Lords, I recognise that this is a very small change to the legislation but I am of course tempted to stray into other immigration and right-to-remain areas. However, temptation is not necessarily the best way of approaching this order so I will stick to the instrument before us.

The first thing I want to say is that I have just returned from a parliamentary delegation. My delay was such that I was not able to find any transport whatever from Heathrow Airport; I would have had to sleep on the floor had I not been able to take a taxi. The reason for that was the snaking queues. If you extend the eligibility, which is a reasonable thing to do, you must have a sufficiency of e-gates. Clearly, there are insufficient numbers at Heathrow. This happened late at night but it could have been early in the morning, or whenever; I have experienced the queue being quite extensive probably three or four times in the past five months. Extending the queue by giving more people this opportunity does not solve the real problem, which lies in an insufficiency of e-gates.

There are a number of related questions about children. I have observed them queueing with their families to get through on a separate basis. I have also observed people who are elderly or need support being helped by a family member to make sure that they put their passport in the slot and withdraw it in the right way. It is not easy to do that. The main support that was given was having an official standing by who could tell people exactly what to do. I wonder whether there are sufficient staff to handle an increased number, given the difficulties already being experienced.

It is likely that, when people put their hand on their passport and put it on to the reader, it will not work the first time. I have never had a reader work with mine the first time—well, perhaps once. It has always been after two, sometimes three, attempts. That is nothing to do with me because my hand is in the same place and it is the same passport. I have never understood why it fails each time then, on a subsequent occasion, putting it through works. That may be the technology; it has worked on the first occasion in other countries but not here in the UK. I have no idea why that is.

The efficiency of the e-gate system needs to be improved as well. I observed in front of me, having had plenty of time to watch as the queues lengthened, how many people had to go through more than one attempt to get the gate to open. It needs to be improved in efficiency. I would like to understand, if the Minister can tell us, whether gate efficiency can be improved and what the problems are in the second, perhaps third, attempt to get them to work.

The other problem that this test check of an age group will come against is when families have one child of 10 and an eight or seven year-old. They are not going to separate; they are going to take them together. You have to have a family in which there is a 10 year-old and any other children have to be older than 10. While it will be an experiment, I have no idea—perhaps the Minister can tell us—of the number of families coming through with only children aged 10 or older with them and who will be able to take advantage of this.

The other question I have is about the height of individuals. Anybody who has taken any children to a theme park will know that they have measures of height by which you can take part in certain rides. When you come to the positioning of a child against it, is there a height problem for younger children who are perhaps small in stature and will have to put their hand almost as high as their head to get their passport in? Will the machinery accept that? I hope all of this has been thought out. If it has not, it will probably become clear when the experiment takes place.

My final point concerns what you might call an ESTA approach in USA terms—that is, where you have to complete a document in advance to visit. Will the system already have the ability to understand such a certificate when the UK introduces them? Will it already be built into the software? I think it applies to every country—apart from the UK and Ireland, obviously—that currently has the ability to use these e-gates. As I understand it, there will be a requirement—the Minister can confirm this—to fill in an ESTA-type document that deals with your entry. Will the software in the e-gate system accept that, so that the people going through will already have had that check, or will anybody with one of these certificates have to be peeled off and sent to another means of manual checking?

There is automation, obviously. Anything that can be done to speed up the system of getting people through into the United Kingdom properly and swiftly will be welcome. The only question is whether these will all be tested in the experiment that is about to be undertaken. Could the Minister address those specific issues—height, the ESTA-type certificates, the shortage of gates and whether there will be sufficient assistance—in replying to this debate? Otherwise, I am satisfied that this is a reasonable thing to do.

--- Later in debate ---

One hopes that the best mechanisms are being used and that it is not a pilot to find out what the best mechanisms are, because we cannot really take chances with the safety of children. To go back to my earlier point, can the Minister assure us that the pilot will be ended sooner than two years if it becomes obvious during that period that increased dangers to children are emerging? As the noble Lord, Lord German, said, we all wish to hear reassurances on these issues as this order progresses through Parliament.

[Lord Murray of Blidworth (Con)]

I thank both noble Lords for their helpful contributions. I will certainly seek to address all the questions asked.

I will deal first with the points raised by the noble Lord, Lord German. By way of context—this also answers a couple of the points from the noble Lord, Lord Coaker—the pilot is for two weeks, or 14 days, during the half term and on those three specific sites. During the operation of the pilot, staff from the relevant team will be supervising so any problems will be swiftly rectified. As I am sure noble Lords are aware, the e-gates are clear glass, so the separation of people from one another is always limited to that clear glass and can be rectified very swiftly if necessary.

It is anticipated—I say this as the father of 10 year- old twins—that the average 10 year-old will have very little difficulty operating the e-gates, given their technical proficiency in many other things. Indeed, they may be better than some older age cohorts at successfully operating the e-gates. It is a usual experience that most families will put the children through the e-gate first and supervise the placement of the passport. It will be interesting to see the extent to which that happens during the pilot. That certainly seems to be the logical way to approach it.

At the relevant part of Heathrow where the pilot is taking place, there are 25 e-gates. It is felt that this is sufficient. Because it is happening during the half-term period, statistics suggest that there will be a lot of 10 and 11 year-old traffic, so it is a good way to test the system.

I was asked by both noble Lords why and how the age of 10 was selected. It was selected both on a cognitive basis, as we think 10 year-olds can operate it—that is certainly my personal experience—and because, from a height perspective, the technology will fit. We have used ONS height statistics, and we think that will work, but clearly it is something we want to test during the pilot. That is why we chose 10 rather than nine or 11. It has also been the international experience; in other countries 10 is the age and it seems fairly successful.

I will turn to one or two of the other points made by the noble Lord, Lord German. On the question about support, the hosts—the airport staff managing the queues—direct people and support them through the e-gates. They are contracted airport employees. They have been worked with in preparation for this pilot to ensure that they are going to provide sufficient support during the pilot and beyond. We will of course, as I have said, ensure increased support during the pilot.

Regarding what we are calling electronic travel authorisations—this is our version of the ESTA—when they are introduced the e-gates will be able to confirm the types of permission held before they allow somebody to enter the UK. I suspect that is the answer the noble Lord anticipated. I have already made the point that the ONS statistics suggest that most 10 year-olds are tall enough to operate the machine.

I turn to the questions posed by the noble Lord, Lord Coaker. At the moment it is anticipated that most children using the e-gates will be accompanied, mostly by their families. On the question about school trips, clearly it would be appropriate for a small school trip but maybe not for one with a large number, which would probably go to the primary control point. Again, we will test that through the pilot.

The next question was on how the airports were chosen. They were chosen with some care because, statistically, those three airports have been ones where there has been quite a number of children of those ages in the February half term. Those airports were selected because it will be a real-world test of the system.

Regarding Northern Ireland, we do not believe there are any ramifications in relation to the common travel area particularly. Obviously Irish citizens, as with British citizens, do not require leave to enter but can use the gates to go through the airport. It will be the case that 10 year-old Irish children can use the gates, just as 10 year-old British children can.

On the level of readiness, they have been working towards this pilot since October. It is the department’s view that the training is ready, and we are aiming for this February half-term period. If there is any intervening event, the department is obviously prepared to postpone the pilot if needed.

As to the question of rolling out nationally, the position is that this change does change the regulations. If the pilot is successful and the decision is taken to roll it out nationally, there will be no need for a further regulatory change, but we will obviously keep the House up to date in the event of that decision being made.

Turning to eligible nationalities, I appreciate that it is not clear, because it is just an amending instrument, but in the parent order, the Immigration (Leave to Enter and Remain) Order 2000, SI 2000/1161, the reference in Article 8B is to the schedule to the order. It is not terribly long, so I will read it out. It says that they consist of the EU nations, Australia, the United States of America, Canada, New Zealand, South Korea, Japan and Singapore. Clearly, over time, one anticipates that this will grow.

[Lord German (LD)]

Does that include EFTA—Norway, Liechtenstein, Switzerland and Iceland?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

Yes, I should have made that clear. Indeed, it is the wider EEA, not just the EU, so it includes all the EFTA countries. I thank the noble Lord; that is an important clarification.

As for safeguarding, we are satisfied that the safe- guarding risk is appropriately handled during the pilot and measures will be in place to ensure that there is no safeguarding risk arising as a result of the change. Obviously, we will consider that and whether there have been any implications or learning points arising while we are considering the results of the pilot.

With that, I think I have addressed all the issues which arose, and I ask the Committee to approve the instrument.

Motion agreed.

Asylum Seekers: Local Authority Accommodation

Lord Murray of Blidworth Excerpts

Monday 16th January 2023 Lords Chamber

[Lord Sahota]

To ask His Majesty’s Government, further to the statement by the Prime Minister on Illegal Immigration on 13 December 2022 (HC Deb cols 885–8), what steps they plan to take, if any, against those local authorities that do not take their fair share of asylum seekers in the private rental sector.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, all local authority areas in England, Scotland and Wales became asylum dispersal areas in April 2022, ensuring that pressures are equitably shared across the United Kingdom. All local authorities and strategic migration partnerships have submitted plans indicating intent to participate. Where local authorities are not delivering on plans, accommodation providers will be instructed to procure outside the plans and recommendations. We remain hopeful, however, that, through co-operation, co-production and co-design, alignment can be reached.

[Lord Sahota (Lab)]

I thank the Minister for his Answer. However, some local authorities take more than their fair share of asylum seekers. My question is simply: can they expect some kind of financial reward for that? Some take more than others.

[Lord Murray of Blidworth (Con)]

Certainly, when a refugee is assigned to a local authority area, there is a payment to the local authority in relation to that person to defray the costs of the accommodation for that individual.

[Lord Kamall (Con)]

My Lords, the Question was about local authorities that do not take their fair share. Will my noble friend the Minister enlighten the House on whether he or his department are aware of any local authorities that have refused to take their fair share of asylum seekers?

[Lord Murray of Blidworth (Con)]

Since April 2022, when the policy was changed, the department has not noticed that any particular authorities have been backward in coming forward in relation to assisting the department in this regard.

[Baroness Lister of Burtersett (Lab)]

In view of the recent report on PoliticsHome of an asylum-seeking family left in mould-ridden accommodation, and the claim of a local charity that the standard of Home Office asylum-seeker accommodation is often “squalid and unsanitary”, what steps are the Government taking to ensure that all such accommodation meets basic standards of decency?

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for her question. Obviously, asylum seekers who would otherwise be destitute can obtain support, including accommodation, under Section 95 of the Immigration and Asylum Act 1999. There is a requirement under Section 96 of that Act that such accommodation should be adequate to the needs of the supported person and their dependants. The courts held in the case of AMA v the Secretary of State last year that a hotel room met the threshold of adequacy, despite the nature of the accommodation being far from ideal. Clearly, it is important that all accommodation provided is adequate and meets the needs of those within it. The department is responsive to complaints of inadequate accommodation; it is a priority for the department to ensure that accommodation is appropriately delivered to those who need it.

[Lord Cormack (Con)]

My Lords, perhaps I might raise a point that I have raised before with my noble friend. Have serious discussions been entered into with our French friends and neighbours to try to ensure that adequate, sanitary—not luxurious—accommodation is built to a considerable extent on the other side of the channel, and that British officials can process applications there?

[Lord Murray of Blidworth (Con)]

Clearly, the arrangements made for asylum seekers within the French Republic are a matter for the French Government. I understand that arrangements are made in accordance with their obligations under the refugee convention. There is no express intention by the French Government to ask us to assist with their discharge of those duties.

[Baroness Pinnock (LD)]

My Lords, the Minister said in response to an earlier question that accommodation should be adequate and of a reasonable quality for asylum seekers. Yet we know, from report after report, that that is not the case. Asylum seekers are being housed in very low-quality housing. Three was a report in Inside Housing only last week that described a mother from Nigeria in one-room accommodation with no lock on the door. These are vulnerable people. Asylum accommodation was privatised in 2012. Will the Government change that, so that public sector providers can provide adequate and good accommodation?

[Lord Murray of Blidworth (Con)]

Clearly, the coalition policy to allow private providers of accommodation to perform that service is working well, and the Government have no intention of revising that policy.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, at the end of last year, the Prime Minister pledged more staff to clear the asylum backlog, when it emerged that the Home Office had failed to process 98% of channel crossing cases in the last 12 months. Can the Minister confirm whether recruitment has begun?

[Lord Murray of Blidworth (Con)]

Clearly, there was such a commitment. I do not wish to reveal any great secrets, but it is a very high priority for the department and I anticipate that good news will be making its way to this House shortly.

[Baroness Berridge (Con)]

My Lords, I am grateful to my noble friend for outlining that distribution is now across all local authority areas. However, for unaccompanied asylum-seeking children, it is not just a question of accommodation; there are other support services that they need. So could he confirm whether unaccompanied asylum-seeking children are covered in this national distribution plan?

[Lord Murray of Blidworth (Con)]

Clearly, different provisions apply in relation to unaccompanied asylum-seeking children, and particular care is taken. Obviously, once a child is allocated to a local authority, the obligations of looking after the child become those of the authority. Clearly, these children are provided with everything that an unaccompanied child would need.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I wonder whether the Minister may come to regret his statement that all is working well with accommodation for asylum seekers and refugees. Too many of the stories, even around Afghan and Ukrainian refugees, give us shame: there are people on the streets, and people in totally inadequate accommodation, with their children not able to access school and now requiring mental health treatment. Much of this is because of the poor quality of the accommodation that is available to them. I do not know what the word is—perhaps “compassion”. A little more compassion, and being more in touch with reality, would mean that, at the end of the day, we at least gave human conditions to the humans who want to come and live here.

[Lord Murray of Blidworth (Con)]

I disagree with the noble Baroness that there is any want of compassion. Clearly, the asylum system in this country is struggling with very large numbers of people who have come here. We presently have 107,700 people in asylum support, and 50,800 of them are currently awaiting dispersal and are housed in initial and contingency accommodation. That includes some 373 hotels, and some of them are of a very high standard. I simply do not accept the characterisation that the noble Baroness suggested.

[Lord Watts (Lab)]

My Lords, the Minister says that he is not aware of any local authority that has failed in its duty to provide accommodation. Will he produce a league table with all the local authorities, so that this House and everyone outside it can understand what the real position is, rather than what the Minister claims?

[Lord Murray of Blidworth (Con)]

I will consider that proposition, take it back to the department and write to the noble Lord.

[Baroness Hamwee (LD)]

My Lords, do the Government recognise the connection between this issue and the points raised by the Question asked by the noble Lord, Lord Young of Cookham? There is a shortage of private rental accommodation, and that goes back to the shortage of housing. The two need to be thought about together, and steps taken that many noble Lords are suggesting.

[Lord Murray of Blidworth (Con)]

The noble Baroness is of course correct.

[Baroness Blower (Lab)]

My Lords, the Minister’s response to my noble friend’s question did not actually mention mould. He mentioned adequacy and quoted the law. However, does he accept—and will he say from the Dispatch Box—that it would never be acceptable for any asylum seeker to be housed in any accommodation in which there was black mould growing, particularly in the light of what we learned recently about the death of a young child in such accommodation?

[Lord Murray of Blidworth (Con)]

Clearly, the adequacy of accommodation is clearly a matter of fact and assessment for each accommodation—so that is the answer I give to that question.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, Amendments 76, 77, 78 and 79, in the name of the noble Baroness, Lady Ludford, enable us to discuss the state threats prevention and investigation measures. As she outlined, Amendment 76 seeks to set a 14-hour limit on the time that someone subject to such a measure has to remain in their residence. Amendment 77 would require the Secretary of State to receive confirmation from the police that prosecution is not realistic, rather than requiring only consultation before a measure is imposed, as outlined in Clause 44(1). These are simple but important amendments, as the noble Baroness, Lady Ludford, outlined, and the Government need to respond to them logically, particularly as they are recommended by the JCHR. In Committee last time, we all referred to the importance of the JCHR recommendations that come before us. It is particularly important that questions such as these are asked because, although we accept that STPIMs are a useful tool to have available, they impose intrusive restrictions on an individual, outside the criminal justice process, as civil measures.

In view of Amendment 76, if there is no time limit, what is acceptable? Are 20 or 21 hours acceptable? As the noble Baroness, Lady Ludford, pointed out, these are essentially curfews on an individual. Although they may be justified—no one is questioning the fact that sometimes they may be necessary—some thought from the Government about what we actually mean by the imposition of time limits or curfews on an individual, and how that might be arrived at, is important. Secondly, should we not always seek to prosecute, as Amendment 77 seeks to do? The police confirming that it is not possible is a real protection, while not compromising national security; again, that is the aim of all of us.

On the more general question of STPIMS, legal aid will be available to individuals but, if they are to challenge effectively, will individuals subject to such an order be fully aware of the reasons why it has been imposed and able to challenge the imposition of such measures? Who will oversee the use of these powers? Can the Minister reassure us that, in making such a decision on application by the Secretary of State, the courts will be given all the information that they need to properly inform their decision, and that they will not be used arbitrarily, out of frustration that a criminal prosecution cannot be pursued? That was a really important point from the noble Baroness, Lady Ludford: this is not a substitute for prosecution but something to be used where, for whatever reason, it is simply not available. But we need some reassurance that criminal prosecution will always be pursued as the first option.

We accept that there is a potential need for such measures, but, given their civil nature and the very real impacts on the liberties of individuals, even if necessary for national security reasons, they demand of us the need to be ever more vigilant when it comes to freedoms and human rights within a democracy. Like the noble Baroness, Lady Ludford, I look forward to the Minister’s response.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I will first address Amendments 77, 78 and 79. These amendments would create a requirement on the Secretary of State to receive confirmation from the police that there is no realistic chance of prosecuting an individual before imposing a state threats prevention and investigation measure—an STPIM—on an individual under Part 2. It is our view that the current drafting would already achieve that aim. STPIMs are a tool of last resort in cases where prosecution is not possible. It is always the Government’s preference and priority to seek a prosecution against those engaged in foreign power threat activity, and where we can prosecute, we will.

Clause 44 reflects our commitment to prosecution and requires prior consultation with the police, before the imposition of a STPIM notice, in relation to

“whether there is evidence available that could realistically be used for the purposes of prosecuting the individual for an offence”

relating to state threats. The police must consult the relevant prosecuting authority before responding to the Secretary of State. The requirement to consult mirrors that in terrorism prevention and investigation measures—TPIMs—to which the noble Baroness, Lady Ludford, referred. Our experience of the TPIM regime is that, wherever it is apparent in the consultation that there is evidence available that means that a prosecution is feasible, such a prosecution is pursued over the imposition of a TPIM. We expect the same principle to apply in the STPIM context. I hope that that addresses some of the points raised by the noble Lord, Lord Coaker.

Furthermore, as set out in Clause 44(5), while an STPIM is in force, the police must ensure that the investigation of the relevant individual’s conduct is kept under review, consulting the prosecuting authority with a view to pursuing a prosecution if possible. Consultation is all about exploring whether there is available evidence that could realistically be used to prosecute an individual. However, the proposed amendments require the police to confirm that there is no available evidence. Changing the threshold in that way would mean that, in the event that there is limited evidence, but not enough feasibly to prosecute, we would limit our ability to use the STPIM as an alternative measure to protect the UK against individuals involved in state threats activity.

Although I understand the concerns raised by the noble Baroness, Lady Ludford, the consultation is meaningful. In each case where an STPIM is in force, the prospect of prosecuting that individual will be kept under review by the police, consulting the prosecuting authorities as necessary. The outcome of that review will be reported by the police to the Home Secretary, in accordance with their statutory duty. In some sense, that answers the point about oversight raised by the noble Lord, Lord Coaker. Where a prosecution is possible, that will be the action undertaken, rather than the imposition of an STPIM. As I have said already, if we can prosecute, we will.

I turn now to Amendment 76, which seeks to place a maximum limit of 14 hours on the number of hours an individual can be required by the Secretary of State to remain in their residence under the residence measure. It is important to note that, in each STPIM case, the facts will be different, and the specific measures will be decided on a case-by-case basis. Flexibility is therefore key to ensure that the most appropriate suite of measures can be imposed. Protection against interference with the rights of individuals under Article 5 of the European convention, as was referred to by the noble Baroness, is already provided for under the residence measure. Condition D, which must be met to impose an STPIM, outlines that the Secretary of State must reasonably consider that the individual measures applied are necessary to prevent or restrict the individual’s involvement in foreign power threat activity. That covers not just the imposition of the measure but the exact terms of the measure. In the case of the residence measure, that would include the number of hours an individual must reside in their residence. I hope I have therefore addressed the point raised by the noble Lord, Lord Coaker, in relation to the time requirement.

In addition, the court must agree at both the permission hearing and the review hearing to the number of hours, set by the Secretary of State, that the individual must remain in their residence—thus providing a good measure of accountability for the number of hours provided for in the order. The number of hours a person must stay at home will therefore be determined by the facts of the individual case. It is also worth noting that the individual subject to a notice has the right to apply for a variation of measures imposed both in the short term—for example, if there is a reason why they need to be out at different times on a particular day—and generally in the long term.

The noble Lord, Lord Coaker, asked who would oversee the imposition of the measures in this regime. Under Clause 54, there will be an independent reviewer of STPIMs, in the same way that there is a reviewer for TPIMs under the other terrorism legislation.

On whether the individual will know what they are accused of doing, they will have access to special advocates who will be able to access the sensitive information in a manner similar to that for TPIMs. The special advocates will have access to the sensitive information that builds the case against the individual and justifies the measure. There will also be a duty on the Government to share the information, as far as reasonably possible, with the individual themselves. With all these points in mind, the Government cannot accept these amendments and I invite the noble Baroness to withdraw Amendment 76.

[Lord Carlile of Berriew (CB)]

Can the Minister help the Committee by giving us an estimate of the scale of the problem? Do the Government expect a number of STPIMs which is roughly the same as the number of TPIMs in existence at present or do they expect more than or fewer than a handful? An assessment must have been made of these numbers.

[Lord Murray of Blidworth (Con)]

I am afraid I do not have that information to hand. My conjecture would be that it is fewer, but I will confirm the position and write to the noble Lord.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for that reply. I also thank the noble Lord, Lord Coaker, for calling these amendments simple but important. I am grateful for his support.

On Amendment 77, I note the Minister’s assurance that he believes that the current drafting would achieve the aim of pursuing the possibility of prosecution, but obviously that incorporates not only a static but a dynamic possibility. I think the fear of the JCHR is that the wording, certainly in Clause 44(5), does not really imply any ongoing investigative mission, as it were. Saying “If we can prosecute, we will” has to mean that a certain re-evaluation takes place. But that is not all that Clause 44(5) says. It says that the chief officer of police must

“secure that the investigation of the individual’s conduct … is kept under review”.

It does not actually require any investigation, or any periodic investigation, so I am not really persuaded, despite the Minister’s reassurances, that that sense of a dynamic possibility of keeping the potential for prosecution under if not a permanent but certainly a periodic review is incorporated into the drafting of the Bill. We may come back to this at a later stage, but I am not entirely persuaded by the Minister.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I do not have anything more to add other than to say that we support Amendments 80 and 81. The noble Lord, Lord Anderson, summed it up in his closing comments: the current Independent Reviewer of Terrorism Legislation, Jonathan Hall, has been consulted on this amendment and agrees that it would be a suitable way forward. I look forward to the Minister’s response.

[Lord Murray of Blidworth (Con)]

My Lords, Amendments 80 and 81 propose having an independent reviewer to cover more than Part 2 of the Bill. The Government have committed to consider this idea in the other place, and the speech made by the noble Lord, Lord Anderson, was compelling on this point.

The Government have been considering whether extending the oversight of the independent reviewer could be done in a way that does not duplicate or unhelpfully interfere with the responsibilities and functions of the existing oversight mechanisms governing both the UK intelligence agencies and the police. For example, we must consider how extending oversight of the Bill would interact with the Investigatory Powers Commissioner’s role in overseeing the powers referred to in Clause 27. Should we decide to extend oversight of the Bill beyond Part 2, it is important that we do not create any confusion or uncertainty as to the appropriate reviewer.

It is proposed that Part 4 of the Bill should be reviewed by the Independent Reviewer of Terrorism Legislation. Of course, Part 4 contains measures to freeze civil damages awarded to claimants seen as representing a real risk of using their award to fund acts of terror, and measures to restrict access to civil legal aid for convicted terrorists. As a result, these matters are already in the IRTL’s remit to review. An explicit commitment to oversight of Part 4 of the Bill is therefore unnecessary and would duplicate the Independent Reviewer of Terrorism Legislation’s existing discretion to review and report on terrorism-related legislation.

As a point of clarification on a point made by the noble Lord, Lord Anderson, the Government are not extending the purview of the Independent Reviewer of Terrorism Legislation to cover Part 2 of the Bill—rather, they are creating a new independent reviewer role entirely.

With these points in mind, while the Government cannot accept these amendments, we are committed to making a decision on extending oversight of the Bill at the next stage of its passage.

[Lord Purvis of Tweed (LD)]

With a glance at the impact assessment on this part of the Bill, the Government’s estimate is that there will be between four and 12 cases a year for the independent reviewer. Just for the sake of efficiency alone, it would make sense to extend a structure which is already in existence and operating well, rather than creating a new system which would have potentially a miniscule role—especially since the impact assessment says that it would be down to the discretion of the reviewer

“how much time they spend reviewing the STPIMs”.

[Lord Murray of Blidworth (Con)]

Obviously, the noble Lord makes a valid point, and I am sure it will feed into the department’s consideration about extending the oversight.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister, but it may assist the Committee to know what will happen next. It is welcome that the department will be thinking about this, but it would be good to have a bit of a steer as to what the Government intend to do before Report.

[Lord Murray of Blidworth (Con)]

We invite the proposers of the amendments not to press them; further information will follow.

[Baroness Ludford (LD)]

Well—my noble friend Lord Purvis of Tweed asked the obvious question of what happens next, and we got a rather obscure answer. I hope the noble Lord, Lord Anderson, will be able to tease out a little more about what the next steps might be.

I thought the Minister started on a rather encouraging note. I thought he was going to say, “Yes, Amendment 81 is jolly good, and we accept it”. I would imagine that it has been the subject of discussions and exchanges and so on, but the promise that came from the beginning of the Minister’s remarks was not really realised, or not realised at all.

In breathless anticipation of what the noble Lord, Lord Anderson, is going to say—I hope that I am not taking his name in vain, as it were—I beg leave to withdraw Amendment 80. I hope, however, that this is not the end of the discussion on Amendment 81.

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[Lord Ponsonby of Shulbrede (Lab)]

The noble Lord, Lord Wallace, has raised an interesting but complicated question to answer. He has given various examples of the complications involved in trying to identify the owners of companies. From my own experience as a part company owner and director, I did not know who the shareholders in my own company were, once the ownership was traced back. This is a very difficult and involved question, and I look forward to the Minister’s response.

[Lord Murray of Blidworth (Con)]

I thank both noble Lords for their contributions; it is indeed a complex issue. Amendment 83 seeks to provide that, where an entity receives 25% or more of its revenue from a foreign power, it can be considered as subject to control from a foreign power and eligible to be specified under the enhanced tier of the scheme. I commend the spirit with which this amendment has been made. The noble Lord’s aim of increasing transparency supports the objectives of the scheme, but it is vital that we strike the balance of proportionality.

It is important that we maintain a distinction between funding, or donations, and control. However, I hope the noble Lord will be reassured that where, in practice, funding does result in a foreign power directing or controlling the activities of the entity, a condition for foreign power control already given in Schedule 13 will still be met. Where this condition is met, it will be possible to specify the entity under the enhanced tier.

We recognise that it is imperative that this scheme maintains the flexibility to adapt, should a foreign power seek to take action to evade the scheme’s scope and requirements. Part 3 of Schedule 13 provides this necessary flexibility by allowing for the conditions of control to be amended for permitted purposes by regulation. For these reasons, the Government cannot accept the proposed amendment and invite its withdrawal.

[Lord Wallace of Saltaire (LD)]

My Lords, I foresee yet another bout of litigation over who really owns what as this is implemented. We have seen a fair amount of argument among different Russian oligarchs about who owns what, and what political influence may or may not have been involved, in the London courts. This is one of the many ways in which the Bill, in its current form, is not proportionate. This is, again, why we need to move slowly, carefully and cautiously as we complete our scrutiny of the Bill.

We must not put too much of a burden on the individual business man and woman, or the individual customer, but, at the same time, we must do our utmost to ensure that foreign money, as it comes into British politics and British political life, is identified as vigorously as possible. Incidentally, I am not convinced that the Bill does that, as I said in an earlier session. That is one of the ways in which the Bill needs to be strengthened rather than weakened. This will, I hope, form part of the discussions that we will have off the Floor, during the process in which the Government will produce their promised policy statement, and before we come to Report. I beg leave to withdraw.

Windrush Lessons Learned Review: Implementation of Recommendations

Lord Murray of Blidworth Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, is not the treatment of the Windrush generation one of the most shameful episodes in our post-war history? These people helped rebuild Britain, and their reward was that many were wrongly detained and threatened with deportation; 83 people were actually deported. Why have only 1,300 out of an estimated 15,000 been compensated so far? Why are the Government now going to implement only some of Wendy Williams’s recommendations, not all as originally promised? Can the Minister update us on the figure? Is it still eight out of 30? Have the recommendations for a migrants’ commissioner, and to extend the powers of the Independent Chief Inspector of Borders and Immigration, been dropped? We still have no anti-slavery commissioner appointed. Wendy Williams demanded cultural change, but on the 75th anniversary of the Windrush generation, we are still a long way from it. Would it not be the final betrayal of that generation if there were not the real change that Wendy Williams demanded?

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

I agree with the noble Lord that the injustices of Windrush were an outrage. Clearly and unfortunately, it was Governments of all complexions who allowed that scandal to unfold. The noble Lord asked me whether the Windrush compensation scheme is failing. The Government—and I, as the supervising Minister for the Windrush compensation scheme—are very clear that we must compensate members of the Windrush generation and their families for the losses and impacts they suffered as a result of the scandal. We believe that we have made significant progress, having now offered a total of more than £59.58 million in compensation. As to the question about recommendations, the noble Lord knows that the Government will not comment on leaks, and I do not propose to do so today.

[Baroness Benjamin (LD)]

My Lords, this year there should be jubilant celebrations of the 75th anniversary of Windrush, a symbol of Caribbean people coming to Britain with good intentions. However, because of the Windrush scandal, one can be forgiven for feeling anxious, nervous and worried when we hear reports regarding government plans to go back on Wendy Williams’s recommendations. In my recent letter to the Prime Minister, I stated that this would be disrespectful and perceived as wicked, vindictive and heartless. This is a matter of national pride and we must be determined to right the wrongs, injustice and hurt. Compensation should be accelerated before more claimants die. Once again, therefore, will the Government categorically assure me, this House and the Caribbean community that these rumours are not true and that they intend to fulfil all their pledges?

[Lord Murray of Blidworth (Con)]

As I observed to the noble Lord a moment ago, the Government do not comment on leaks, and I do not propose to do so now. On the separate question that the noble Baroness asked, I entirely agree that there should be a fantastic celebration of the 75th anniversary of Windrush, and the successes of the Windrush compensation scheme and the Windrush scheme in granting status are factors to feed into that great celebration. On the final aspect of her question—the speeding up of payments under the Windrush compensation scheme—I am glad to report that we have issued final decisions in more than 59% of the claims received and have concluded more than 43% of claims. In July 2021, we also published a redesigned primary claim form and refreshed casework guidance with the aim of reducing the time taken to process claims and improving people’s experiences of applying to the scheme. We are recruiting additional caseworkers, directing resources to maximise performance and refining processes so that cases can progress as quickly as possible. We have delivered on the promise to recruit and post at least 120 EO-level casework resources by the spring of 2022, and we will continue to recruit additional resources.

[Baroness Berridge (Con)]

My Lords, I am grateful to my noble friend for outlining that next year we will celebrate the wonderful arrival 75 years ago of those who have given so much to this country, many of whom paid with their lives fighting for it. However, celebrations cost money. Can my noble friend outline what money the Government will allocate centrally and for communities to be able to celebrate this?

[Lord Murray of Blidworth (Con)]

I do not have that information to hand; I will need to find that out and write to the noble Baroness.

[Baroness Blackstone (Lab)]

My Lords, the Minister’s Answer to my noble friend on the Front Bench on the meeting of claims for compensation was a bit complacent. Can he explain why the number of claims that were dealt with last year was much lower than in the previous year? There must be some reason for that. Can he also comment on the remarks made by Wendy Williams in her report on the delays to the training of officials dealing with the Windrush scandal? Why has this been delayed and what steps is he taking as the Minister responsible for dealing with this problem?

[Lord Murray of Blidworth (Con)]

On the reduction, I hope the answer is demonstrated by the following statistics. Some 4,558 claims have been received by the Windrush compensation scheme, for which, as I said a moment ago, the total amount of compensation offered has been £59.58 million. There are 2,699 claims with final decisions—that is 59%—and 1,967 concluded claims: those are claims that received a final payment, a nil offer that has not been challenged in 60 days or rejected on eligibility, or claims that have been withdrawn. As regards the work in progress, there are 1,859 claims, and preliminary offers have been made in 666 of those. Only 522 claims are more than a year old.

[Lord Cormack (Con)]

My Lords, will my noble friend accept that we are getting rather fed up with the tardiness of the payment of compensation, whether it is to postmasters, those who had bad blood products or this very important group, the Windrush people? Will he therefore not be complacent about saying that there are 41% still to be dealt with but rather say that the 41% will be dealt with well before the end of this year?

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[Lord Murray of Blidworth (Con)]

It is certainly the department’s intention, and I thank my noble friend for that question. The department is making real efforts to reduce the work in progress and the time taken to consider claims, taking the steps I have already outlined by recruiting further caseworkers and accelerating the process. Indeed, we have a method of expediting claims, appropriating exceptional cases where it is necessary to consider a claim out of date order: for example, where the individual has a critical or life-shortening illness which means that there is a substantial risk that they would not receive the outcome of their claim if it were considered in date order.

[The Lord Bishop of Chelmsford]

My Lords, many of the recommendations in the Windrush Lessons Learned Review also have implications for how the UK should steer its current refugee and asylum policy: recommendation 9 concerning the creation of a migrants’ commissioner, recommendation 19 regarding direct contact with migrants and recommendation 25 requiring consideration of risks to vulnerable groups or individuals. What assurances can the Minister provide that there will not be a repeat of the mistakes made with the Windrush generation, this time with asylum seekers and refugees, and can he comment on any progress made on recommendation 9 and the appointment of a migrants’ commissioner?

[Lord Murray of Blidworth (Con)]

I thank the right reverend Prelate for that question. As to the last point, I am afraid I cannot comment on the leaks in the Guardian, but on the first point, I can reassure the House that we are certainly very alive to the issues that the right reverend Prelate raises. The Windrush generation was rightly identified as British and had a right to be in this country. That remains separate and distinct from the enforcement policies on individuals who have no right to reside in the United Kingdom. It is only right that the Government do what they can to protect our borders and enforce the Immigration Rules. Successive Governments have done this, in line with public expectations. Wendy Williams’s Windrush Lessons Learned Review is not about being soft in our objective to protect the country or our borders. The Windrush scandal was about the appalling treatment of those who had a perfect right to be in this country. They were not here illegally. It is only right that the Government do what they can to protect our borders and enforce the Immigration Rules.

[Lord Paddick (LD)]

My Lords, as my noble friend Lady Benjamin said—her tremendous work in this area should be acknowledged in this House—the way in which the Windrush generation has been treated is disgraceful, with some dying before the wrongs they were subjected to could be corrected or compensated. Without commenting on leaks, does the Minister agree that a failure to implement all the recommendations of the independent Williams review would add insult to injury for the African-Caribbean community?

[Lord Murray of Blidworth (Con)]

Tempting though it is to travel down that line of answer proffered by the noble Lord, Lord Paddick, I am afraid that would amount to commenting on the leaks, and I do not propose to do so.

National Security Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I was not planning to speak on this fairly narrow amendment. The noble Lord, Lord Marks, made all the points relative to the amendment itself. However, it is worth just endorsing his closing comments about the view of the Opposition and Liberal Democrat Benches that the Government are paying too little attention to the recommendations of the JCHR. It appears to be a hurdle to overcome to get over those recommendations. This is a good example; many of the recommendations made are very minor. I just wanted to endorse the point the noble Lord made about the importance of this committee’s work.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

I thank the noble Lords, Lord Marks and Lord Ponsonby, for their remarks. Turning first to the subsidiary point in respect of the importance of the reports of the JCHR, I can certainly assure all in the House that the JCHR reports are taken very seriously by the Government and all the recommendations are appropriately considered. I can say that, as a human rights lawyer myself, I fully appreciate the importance of the human rights considerations and the very valuable work done by the committee. I hope my remarks go some way to assuage the concerns that were outlined.

I turn now to the substantive amendment tabled by the noble Baroness, Lady Ludford. This clause replaces Section 8(4) of the Official Secrets Act 1920 and in so doing makes it more explicit that the exclusion of the public from proceedings must be necessary in the interests of national security. The Government consider that the approach taken in the drafting is appropriate given the highly sensitive nature of the material that may be required to be considered during court proceedings in relation to offences under the Bill. It is important to note that the decision to exclude the public from proceedings is taken by the court on application by the Executive, who are well placed to set out the risk to the courts. We consider that the judiciary is already well placed to assess the impact of any such decision on the administration of justice.

The words that this amendment seeks to add are, with respect, unnecessary. In England and Wales, for example, the Criminal Procedure Rules 2020 would apply in such proceedings which already have as their overriding objective that criminal cases are dealt with justly. Therefore, those rules require a court to have regard to the importance of dealing with criminal cases in public and the overriding interests of the administration of justice when determining whether to exclude the public from any part of proceedings. It is clearly right that this clause notes and provides the court with a clear basis upon which to exclude the public on grounds of national security, and that is all that this clause does. For those reasons, the Government cannot therefore accept the proposed amendment and I therefore invite the noble Lord to withdraw it.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I shall look carefully at the Minister’s response. For the time being I will certainly seek leave to withdraw the amendment. There may be room for further discussion—there may not. I accept that the overriding objective applies to criminal cases and to dealing with cases justly, but as regards whether it is not sensible that that should take primacy by a special mention in the Bill I am unconvinced at the moment. However, I will read what the noble Lord had to say. I therefore beg leave to withdraw the amendment.

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This dilemma cannot just be put in the “too difficult” pile; it cannot be put somewhere we can all reflect on it “at some point”. We somehow have to find a way to try to reconcile this conflict which gives certainty to the legislature, while ensuring that all of us can maintain the confidence we have in our democracy that serious wrongdoing can be exposed and simultaneously protecting national security—that should not be beyond us. That is why the amendment tabled by the noble Lord, Lord Marks, although not correct in every detail, is important, and why my amendment has been brought forward: to try to tease out, from the Government and this Chamber, people’s views on how we take this forward in a way which commands general support.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for a very interesting debate on a topic of considerable public importance. These amendments concern the introduction of a public interest defence to the offences in the Bill. Amendment 75 adds a PID to Clauses 1 to 5. I am very grateful to those who have contributed to this short debate, including the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Carlile and Lord Faulks, with whom I find myself in agreement, particularly on their concerns about the practical consequences of this amendment, as well as on the concerns raised by the noble Lord, Lord Marks, on the application of Article 10 of the European convention. I therefore greatly welcome the display of expertise from all sides of the House.

It would be helpful for me to start by talking briefly about the genesis of these offences and the interaction with the Law Commission recommendation for a public interest defence. In this amendment, there is a significant risk of conflating the various Official Secrets Acts, so I will take a little time to clarify those Acts, because it is vital that we are precise in this context. Four Official Secrets Acts are in force: the 1911, 1920 and 1939 Acts, which deal with espionage, and the 1989 Act, which deals with unauthorised disclosures, often described as leaks.

The Law Commission, in its 2020 report, considered all four Official Secrets Acts. Starting with the 1989 Act, the Law Commission recommended the inclusion of a public interest defence, not in isolation but rather as part of a package of reforms to that Act. It is important to stress that the Bill does not seek to reform the 1989 Act, which remains in place as the relevant legislation to govern unauthorised disclosures of specified material; for example, in relation to security and intelligence, defence or international relations. For that reason, I can answer the very fair question from the noble Lord, Lord Coaker, as to whether this was a relevant or irrelevant issue with the clear indication that it is not relevant to this amendment. When asked about the omission of the reform of the 1989 Act from the Bill, the Law Commission made clear, in its oral evidence to the Commons committee for the Bill, that it did not expect one single piece of legislation to address all aspects of its report.

I turn to the 1911 to 1939 Acts, which this Bill replaces. The Law Commission made a number of recommendations with respect to reform of those espionage laws, but crucially did not recommend the inclusion of a public interest offence. Again, during its oral evidence to the Committee for this Bill in the other place, the Law Commission was clear that, in its view, the requirements of the offences take them outside the realm of leaks and into the realm of espionage. It is worth also noting, as the noble Baroness, Lady Manningham-Buller, correctly observed to the Committee, that within the security services themselves there are elaborate whistleblowing mechanisms already in place for the declaration of unlawfulness, as she has already outlined.

Let me put it very clearly on record that the offences in Clauses 1 to 5 of this Bill are not intended to have a chilling effect on legitimate whistleblowing. As I have said, the Committee has this evening already heard first-hand of experience of the mechanisms in respect of whistleblowing in the security services. The provisions in this Bill are about espionage, and I am sure that the Committee would strongly agree that espionage against the United Kingdom can never be in the public interest, although I appreciate that that is not what noble Lords are implying by tabling this amendment.

I am pleased to confirm that the Government are, of course, willing to continue to discuss the proper protections for legitimate activity, as the Committee has expressed and the noble Lord, Lord Purvis, in particular, has requested. The noble Lord, Lord Coaker, asked for further details on the Government’s efforts to keep whistleblowing guidance under continuing review, and I can confirm that that work is ongoing. No doubt it can be discussed further, in a similar way.

[Lord Coaker (Lab)]

I am sorry to interrupt, but just on the point about the guidance, where the Minister has confirmed that the Government are undertaking work to update it, what is the process and the timeline for that?

[Lord Murray of Blidworth (Con)]

I am afraid that I am unaware of the precise timeline—I will find out. If the matter is not discussed in relation to the Kramer amendment, obviously I shall write to the noble Lord in respect of it.

I turn to the offences themselves, and the aspects that we consider move them away from capturing legitimate activity. For the Clause 1 offence of obtaining or disclosing protected information, the activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. It is right that we are able to prosecute disclosures of protected information when it is clear that a person intended to harm the UK and was working for or on behalf of, or with the intention to benefit, a foreign power. Legitimate whistleblowing would not meet all the requirements of this offence.

The Clause 2 offence of obtaining or disclosing trade secrets is designed to tackle the illicit disclosure and acquisition of sensitive commercial information amounting to a trade secret for, on behalf of, or for the benefit of a foreign power. For the offence to be committed, the activity has to be unauthorised, and the person has to know, or ought reasonably to know, that their conduct is unauthorised. Someone who disclosed information in the course of using lawful and appropriate whistleblowing routes would not be conducting unauthorised activity.

The Clause 3 offence criminalises assisting foreign intelligence services. The offence can be committed in one of two ways: either by conduct of any kind that a person intends will materially assist a foreign intelligence service, or by conduct that it is reasonably possible may materially assist a foreign intelligence service and where the person knows, or ought reasonably to know, that that is the case. The material assistance must be material assistance in carrying out UK-related activities. The expression “UK-related activities” means activities taking place either inside the United Kingdom, or those taking place outside the United Kingdom which are prejudicial to the safety or interests of the United Kingdom. Legitimate whistleblowing activity should not meet the threshold for an offence under Clause 3, such as intending to materially assist a foreign intelligence service in carrying out covert operations in the United Kingdom.

I move on to the offences in Clauses 4 and 5, which criminalise harmful activity in and around prohibited places. It is right that we are able to prosecute relevant activity around the United Kingdom’s most sensitive sites where it is clear that such activity has been carried out to harm the United Kingdom. Activity carried out to harm the United Kingdom in this way cannot be in the public interest.

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[Lord Purvis of Tweed (LD)]

The Minister knows that, on previous days in Committee, we have discussed the issue of how the interests of the United Kingdom are defined and how broad that is. Whom does he believe should be the final arbiter in defining what is in the interests of the country and in the public interest?

[Lord Murray of Blidworth (Con)]

The noble Lord’s question as I understand it is whether the decision about public interest is one for the police or for the prosecutor because, in reality, that is where the decisions would lie. Ultimately, if both those bodies were satisfied and a prosecution were brought, the issue would be one for the court.

It is our position that a public interest defence is neither necessary nor appropriate. However, it is important to point out that, even if the Government were to accept the case that the offences risked criminalising such legitimate activity, a public interest defence would not be an appropriate way to address this issue. As crafted, the proposed defence puts the onus on the Government to prove “beyond reasonable doubt” that the defence did not apply. This defence would therefore act as an open invitation to those who seek to conduct espionage against the United Kingdom, and disproving this defence would likely require the disclosure of further sensitive material and only serve to compound the original harm.

The consequence of this is that those who intend to harm the United Kingdom will be able to exploit this defence to continue conducting harmful activities in the knowledge of the prosecution difficulties that would be faced by the authorities. This would limit the effectiveness of the legislation in enhancing our ability to deter and disrupt harmful activity.

Amendment 120B, proposed by the noble Lord, Lord Coaker, would require the Minister to publish an assessment of the potential merits of introducing a public interest defence. As I have just laid out, the Government have extensively considered the merits, or otherwise, of such a defence, and this renders a review after the Bill’s passage unnecessary, for the reasons I have already set out. Thus, for all these reasons, the Government cannot accept the tabled amendments.

[Lord Purvis of Tweed (LD)]

Before the Minister sits down, I am conscious that, as the noble Baroness, Lady Manningham-Buller, mentioned, we will come on to the whistleblowing aspect, but the Minister was at pains to quote liberally from the Law Commission’s evidence to the Public Bill Committee in the Commons on this. I of course have read the evidence, as others will have done. I was interested when it came to the disclosure of information element, because Professor Penney Lewis told the Public Bill Committee:

“Indeed, we recommended a mechanism for authorised disclosures to an independent statutory commissioner, which would have appropriate investigatory powers to look into, for example, disclosures that might be embarrassing to the Government.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]


Why are we not legislating for that in the Bill? The Minister seemed to have accepted everything that the Law Commission had said, but not this.

[Lord Murray of Blidworth (Con)]

It is clear, in the view of the Government, that those issues relate to the provisions found in the 1989 Act, which are not addressed in the Bill. While I note that evidence, it is not relevant to this amendment. As I have already said, I therefore invite the noble Lord to withdraw his amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will be asking for leave to withdraw this amendment, not on the basis that it will go away but on the basis that, first, there is room for further discussion, even though only a chink has opened up in what the noble Lord, Lord Murray, has had to say; and, secondly, on the basis that I accept that the amendment is not perfectly drafted and we would like to take further advice and further consider a number of matters in the drafting of the Bill. What I will say, very briefly if I can, about the amendment and the response of the Minister and the other speeches we have heard, is that this question has to be taken in the context of the introduction of the Bill.

There can be no doubt that the Bill will manifestly broaden the ambit of national security and protection legislation: first, because it is targeted not at individuals who have an obligation to the state but generally at citizens; and, secondly, in the way that the Bill is drafted. We talked about this a great deal last week, when we noted the inclusion of expressions such as, “know or reasonably ought to have known”, “conduct that it is reasonably possible may materially assist a foreign intelligence service” and all those peripheral expressions. Indeed, we note the use of the phrase “prejudicial to the interests of the United Kingdom” when we know “the interests of the United Kingdom” are determined by what the Government of the day believe those interests to be. All those broaden the ambit of these criminal offences.

I completely agree with the noble Lord, Lord Coaker, that this issue is not going to go away. All the briefings we have had from journalists and organisations tell us how important a public interest defence is. I completely take on board the point made by the noble Baroness, Lady Manningham-Buller, repeated by the noble Lord, Lord Faulks, and by the Minister, that Article 10 on freedom of expression is a qualified right. Of course, people of legal distinction can disagree, but it is entirely wrong to suggest that the Law Commission does not contain people of legal distinction.

If it were translated into a consideration of this Bill, because there is no material distinction on the disclosure points, I feel confident that the Law Commission would come out with the same recommendation as it did in 2020. We also have the recommendation of the Joint Committee on Human Rights in relation to a public interest defence. It is very difficult to argue that the fact that it is a qualified right under Article 10 does not mean that it would apply. Of course, we, the Law Commission and the Joint Committee on Human Rights have read the whole of Article 10 and understand the qualification, but the overwhelming point is the phrase

“necessary in a democratic society”.

Everything else is subject to that in the qualification.