Crime (Overseas Production Orders) Bill [HL]

Lord Rosser Excerpts

3rd reading (Hansard): House of Lords
Tuesday 20th November 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, in moving this Motion I thank all noble Lords who have participated in debate on the Bill, in particular the noble Lords, Lord Rosser and Lord Kennedy, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Of course we can never do anything without our fabulous Bill team, who have been on hand to explain some quite complex and technical matters. I always think that your Lordships’ House improves a Bill as it passes to the other place, and I hope that it will agree when it has time to consider it. Thank you.

[Lord Rosser (Lab)]

I too take this opportunity to add to what the Minister has said. Despite the reality that the Bill has not exactly held this House in rapt attention, judging by the number of people who decided to participate in our debates, I thank the Minister, the noble Baroness, Lady Manzoor, and the Bill team for their help and their willingness to meet to discuss the important issues that have been raised during the passage of the Bill. I also thank the members of our team who have provided such invaluable and vital support to me and to my noble friend Lord Kennedy of Southwark.

[Lord Paddick (LD)]

My Lords, I too thank the Minister. I do not know whether I am speaking out of turn in saying that I think at times she has shared some of our concerns over the implications of the Bill, if not over the Bill itself. I thank the Bill team for engaging with us so that we got a better understanding of the formulation of the treaty, the process of negotiating the treaty and what the possible implications of that might be. Clearly we are now alerted to the fact that both Houses need to be very concerned in scrutinising any treaty that is developed that this Bill relies on. I also thank my noble friend Lady Hamwee, without whom I would be lost.

Police: Serious and Violent Crime

Lord Rosser Excerpts

Thursday 15th November 2018 Lords Chamber

[Lord Rosser (Lab)]

This is the second Question on policing today and it is the Home Office that has a responsibility for assessing how much funding police forces need. In the light of the 11% to 25% range—in real percentage terms—in funding reductions experienced by police forces between 2010-11 and 2018-19, rising violent crime, fewer arrests, high numbers of crimes not being investigated, less neighbourhood policing, fewer police officers and declining public satisfaction, is it still the Government’s assessment that police forces have sufficient funding in the current financial year to meet the legitimate demand for police services? Is the answer yes or no?

[Baroness Williams of Trafford]

The Government’s assessment at this point in time—I refer again to my right honourable friend the Home Secretary and my honourable friend the Policing Minister—is that the police have had huge increases in demand. The pattern of crime is changing, as the noble Lord pointed out. Knife crime is a particular issue in London and county lines are spreading the problem across forces. I know that the Home Secretary and the Policing Minister recognise this and are looking to work on the funding picture.

Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

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

[Baroness Hamwee (LD)]

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

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

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

[Lord Rosser (Lab)]

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

[Baroness Williams of Trafford]

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

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

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

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

[Baroness Williams of Trafford]

She did, and I have the answer here—as if by magic. Paragraph 63 of the draft Schedule 3 code of practice is clear that, where the examining officer retains a person’s property beyond the period of examination, the officer should ask the person how they would prefer to be contacted regarding the status or return of their property. The officer will typically seek to acquire the phone number, email address or postal address of the examinee. However, under the urgency process, the examining officer would attempt to use the details provided by the examinee to make contact and to provide the information. This would typically include attempting to call the person a number of times, as well as sending them information by recorded post and email. If the person is at the known UK address then the officer from the local force could be tasked to attend the address to deliver the relevant information in person. Obviously, however, it would not be reasonably practicable for the police to take this approach on every occasion or where the person is abroad. It would not be reasonably practicable for the examining officer to make contact with the person where they have provided false contact details. I hope that satisfies the noble Baroness.

[Lord Rosser]

I appreciate that the Government cannot stand at the Dispatch Box and announce that this will be used X number of times a week, a month or a year—of course I understand that. But is the provision there because of previous experience that there is a gap in the arrangements, for which we have had to pay a price because we have not been able to enact the procedure, or is it there because there is a feeling that there might arise a need for such a procedure in the future?

[Baroness Williams of Trafford]

There are several answers to that. Obviously, the Terrorism Act 2000 needs updating. The Salisbury attack showed us the need to update our laws in this regard, and clearly the way that technology and other things have moved on creates a gap in our abilities because they have not been provided for in previous legislation.

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[Lord Rosser]

We too are obviously concerned about the right to access a solicitor. My name, and that of my noble friend Lord Kennedy, is attached to all the amendments in this group, but the one I wish to speak to in particular is Amendment 86. As the others do, this amendment refers to legal professional privilege and to a person’s ability to consult a lawyer in private in relation to stops at the border. As has been said, there is a power in the Bill for an officer not only to watch someone receiving legal advice but to hear that legal advice being given.

Concerns were raised by the Government when the matter was discussed in the Commons. The first argument advanced by the Government was that, rather than contacting a lawyer, a person might contact someone they wanted to notify of the fact that they had been stopped. The Government further argued that that person might notify a lawyer who would not adhere to the professional standards that we would expect and who might pass some information on. The third argument advanced was that of a lawyer inadvertently passing on a piece of information. That appears to be the guts of the Government’s argument in favour of what is in the Bill at present.

As the Minister will know, the shadow Minister for Security in the Commons put forward a proposition that there should be a panel of lawyers, properly regulated, he said, by the Solicitors Regulation Authority and the Law Society. I have subsequently found out that not necessarily all lawyers hold those organisations in complete awe, but the principle was one of having a panel of lawyers that was properly regulated. In his response in the Commons, the Minister for Security said he thought that the suggestion was a good one and promised to take it away and look at it.

I hope that, in the light of that, we will be able to make some progress on this issue and that the Minister, on behalf of the Government, will be able to indicate movement—a great deal of movement, I hope—on the Government’s part towards the objective of ensuring a right to legal advice, to access a solicitor and to do so in private.

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Moved by

[Lord Rosser]

63A: Schedule 3, page 38, line 35, at end insert—
“(3A) In order to inform a decision on whether to select a person for questioning under this paragraph an officer may approach a person and ask questions for screening purposes. (3B) Screening under sub-paragraph (3A) may include, but is not limited to—(a) asking questions to establish the identity, provenance and destination of a person;(b) asking questions to establish the method of travel and purpose of travel of a person;(c) scrutiny of a person’s travel document;(d) a comparison of the holder against the image contained in the document;(e) requesting additional documents from the person relevant to screening;(f) checking personal information against records where there is no significant additional delay.(3C) It is not an offence for a person to refuse to answer questions asked for screening purposes or to refuse to otherwise engage with officers in the screening process. (3D) An officer must inform any person they approach for screening purposes that they are not obliged to answer questions or engage with the officer on the screening process.(3E) An examining officer must not exercise powers under this Schedule, with the exception of the power to approach a person for screening purposes under sub-paragraph (3A), in respect of any person unless that person has been notified that an examination under this Schedule has commenced.”

[Lord Rosser]

My Lords, as has been said, the Bill provides for a person to be questioned and detained under Schedule 3 powers and makes it an offence to refuse to answer questions in examinations. The draft code of guidance, which we have now seen, recognises that there may be a preliminary stage of questioning during which people may be screened before an officer chooses to officially question them under the schedule. During screening, a person is not required to answer a question they do not want to and the code of practice states that a person must be told when the screening ends and an official examination begins. The purpose of this amendment is simply to put the screening process, the right of a person not to answer questions and, equally importantly, the right of a person to be told when screening ends and questioning begins on to the face of the Bill.

The screening does not appear to be an insignificant process. The draft code of practice, which we have sought to enshrine in the amendment, sets out the kinds of questions that can be asked and the issues that can be raised during the screening process. It states that there is no requirement for officers to keep a record of a screening interaction unless the person is subsequently selected for a Schedule 3 examination. There will be circumstances in which there is a requirement to make a record of a screening interaction. Indeed, it also says that while the screening of persons should take only a few minutes—I do not know what “a few minutes” is in this context—it states:

“If it appears that this period will take significantly longer, the examining officer must conclude the screening process and either commence a Schedule 3 examination or notify the person that they have no further questions”.


Again, in a situation where they run out of time and decide to commence a Schedule 3 examination, a record of the screening interaction must be made.

It is not clear to us at the moment why no reference to this process has appeared in the Bill. One purpose of the amendment is to get an answer to that question since it would appear to be a part of the process under Schedule 3, which we have been discussing. I beg to move.

[Lord Anderson of Ipswich]

My Lords, for every person who is subject to a Schedule 7 examination, as I often used to report, some 10 to 20 others are asked light-touch screening questions on a consensual basis, as a result of which it is determined that a Schedule 7 examination is not necessary. The prevalence of screening questions may explain the discrepancy between the low and rapidly declining incidence of Schedule 7 examinations, on the one hand—I think they are running at around a quarter of the level they were when the noble Lord, Lord Carlile, handed over the post of independent reviewer to me—and, on the other hand, the perception of some people that they are stopped on a routine basis when they travel abroad. I reported in 2016 the example of a security-cleared government lawyer with a Muslim-sounding name who had been stopped by police on each of the last five occasions that he had left the country and on the majority of occasions when he re-entered it. On each occasion, as he acknowledged, he was stopped for screening questions only. Because screening questions are not recorded, there was of course no way of alerting ports officers of the previous fruitless stops.

I agree with the noble Lord, Lord Rosser, that the parameters applicable to screening questions need to be clearly set out under Schedule 3 to the Bill, as under Schedule 7. The draft code of practice, which I thank the Minister for providing well in advance, goes a long way towards doing that, although I am not sure that it cracks all the old chestnuts, one of them being how, if at all, one can administer screening questions to a coachload of people who are on their way to a possibly troubled part of the world.

As to whether screening questions should go into statute, the noble Lord is not alone in his provisional view. Senior ports officers have said to me—as I have recorded in the past—that if screening questions appeared in Schedule 7, we would all know where we stood. Against that, one thinks of the provisions in PACE Code C relating to “voluntary interviews”, which are not enshrined in the Police and Criminal Evidence Act 1984, no doubt because of the moral and social duty, as it has been described by the courts, that every citizen has to give voluntary assistance to the police. I approach this issue with an open mind and look forward to hearing what the Minister has to say. In particular, can she tell us whether she has consulted the Investigatory Powers Commissioner, who is to have oversight of Schedule 3 and, if so, what he had to say, because I suspect that his view may help to inform mine?

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[Baroness Williams of Trafford]

I thank noble Lords for their points on this amendment. I start by saying to the noble Lord, Lord Anderson, that the IPC has been consulted throughout the drafting of the code.

The interactions between noble Lords probably go to the root of the amendment proposed by the noble Lord, Lord Rosser. The section on screening outlined in the Schedule 3 code, which mirrors the existing guidance for the equivalent CT powers, is there to provide ports officers with clarity on the distinction between questions that can be asked by police officers in the ordinary course of their duties with a view to deciding whether to examine someone and questions that are permissible only once a Schedule 3 examination has commenced; that is, those questions designed to elicit information to enable an officer to determine whether the person is or has been concerned in hostile activity.

We have all come across police officers as we go about our daily lives and are used to seeing them on local streets and in tourist hotspots or protecting our national infrastructure. Wherever officers are on the ground, it is reasonable to expect them to interact with the public. It is not only a reasonable expectation but a vital aspect of front-line policing.

Such interactions will vary and depend on the specific purposes. They may range from polite conversation between an officer and a member of the public to a situation where an officer wants to query why a person is acting in a certain way or why they are present in a certain place. In such circumstances, police officers do not rely on specific powers of questioning; rather, they are simply engaging members of the public during their ordinary duties, as the noble Lord, Lord Carlile, pointed out. It is no different when officers are stationed at UK ports.

It would be unusual if officers did not interact with the public in this way. It would be even more unusual if front-line officers were not able to use those interactions to determine whether any further action was needed. It is unfortunate that, in trying to clarify this distinction between what would constitute questioning or interaction during ordinary police duties and questioning that can take place only once a Schedule 3 examination has commenced, the language and intention of the code have somehow been misunderstood.

Let me be clear: what is referred to as “screening” in the draft code is not a prescribed process or procedure that ports officers must adopt before selecting a person for examination. It is a clarification of what questions can be asked, if appropriate, prior to selection for examination, as against the questions that can be asked only during an examination.

It is quite possible that a ports officer will speak to members of the public at a UK port in the course of their duties with no intention of selecting them for an examination of any kind. Of course, the person’s behaviour might lead the officer to consider use of a police power, but Amendment 63A could have the unfortunate implication that, in other contexts and absent specific statutory powers, officers are unable to talk to the public or request to see their documents in the ordinary course of their duties to determine whether they need to take the further step of invoking their legal powers. It would define such questioning as being part of the Schedule 3 examination itself, rather than something that takes place before an examination. All that said, even though I do not agree with the amendment, we will consider whether further clarity is needed in the code before formally laying it before Parliament for a debate and approval by both Houses. I hope that, with that assurance, the noble Lord will be content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that response and all other noble Lords who have participated in this brief debate. I am grateful to the Minister for saying, if I understood her correctly, that there will be further reflection on this issue. I accept that she has not, on behalf of the Government, accepted the amendment. I do not know whether it is the listing of potential questions that is the cause of the difficulty. If it is, one solution might simply be to make reference to the fact that there may be a screening process, without laying down specifically what the questions are that may or may not be asked as part of it, since most of the debate seems to have centred on listing the specific questions. These, of course, were lifted straight from the code of practice.

[Baroness Williams of Trafford]

I think that the noble Lord, Lord Carlile, put it correctly. Rather than prescribe a list of questions, I am seeking to get clarity within the code in due course.

[Lord Rosser]

I take it from that that the Minister will be coming back to let us know the outcome. On that basis, I thank the Minister for her response and I beg leave to withdraw the amendment.

Amendment 63A withdrawn.

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[Lord Paddick]

My Lords, I do not want to add to the comments that I made in the debate on whether Clause 21 and Schedule 3 should stand part of the Bill, which echoed the comments of other noble, and noble and learned, Lords.

As the noble Lord, Lord Anderson of Ipswich, has said, regulations that we recently considered that were made under the Investigatory Powers Act radically redefined “serious crime” to mean offences which carry a minimum sentence of 12 months’ imprisonment but also all offences involving communication or the invasion of privacy. The Government are quite capable of redefining—and in fact have redefined—serious crime to fit more precisely the powers referred to in different pieces of legislation, even regulations made under a piece of legislation in which the definition of serious crime is different. So I do not agree with the noble Baroness, Lady Manningham-Buller, who mentioned earlier that it would not capture Official Secrets Act offences, because the Government, as has been suggested, can change, have changed and could change the definition of serious crime in relation to Schedule 3 powers.

[Lord Rosser]

I will be very brief indeed. We will listen with interest to what the Government have to say in response to the amendment moved by the noble Lord, Lord Anderson of Ipswich, but—obviously, subject to what the Government say—it seems to us to have considerable merit.

[Baroness Williams of Trafford]

My Lords, I echo the words of the noble and learned Lord, Lord Judge: the noble Lord, Lord Anderson, is indeed wise and elegant in his words. As the noble Lord has explained, this group of amendments deals with the definition of “hostile act” in Schedule 3.

It is important to emphasise that the design of any new power should be specific to the threat it is seeking to mitigate. The scope of this power has been designed to do just that; namely, to mitigate the known threats from hostile state activity. The danger of these amendments, therefore, is that they will limit the scope of the power, thereby limiting the range of threats that it has been designed to combat.

For the benefit of the Committee, the ports powers under Schedule 3 will be used by examining officers at UK ports or the border area,

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

A person is engaged in hostile activity if they are,

“concerned in the commission, preparation or instigation of a hostile act that is or may be … carried out for, or on behalf of, a State other than the United Kingdom, or … otherwise in the interests of a State other than the United Kingdom”.

Under this schedule, a hostile act is defined as an act that,

“threatens national security … threatens the economic well-being of the United Kingdom, or … is an act of serious crime”.

By replacing “hostile act” with “serious crime”, these amendments would significantly narrow the range of hostile activity that these powers are designed to counter. It would undoubtedly limit the ability of our ports officers to detect, disrupt and deter hostile actors. Serious crime is defined in the Bill as being an offence which could reasonably be expected to result in,

“imprisonment for a term of 3 years or more, or … the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”.

Some of the activities which I believe noble Lords would expect to be captured through these new powers would not fall within the scope of the truncated definition of hostile activity. As the noble Baroness, Lady Manningham-Buller, explained earlier, some offences under the Official Secrets Act 1989 attract a maximum penalty of only two years’ imprisonment and may not involve the use of violence, result in financial gain or involve a large number of people acting in pursuit of a common purpose. Consequently, an examining officer would not be able to exercise Schedule 3 powers for the purpose of detecting, disrupting or deterring this type of hostile activity even if the activity threatens national security or could be prosecuted for offences under the Official Secrets Act. This is simply not acceptable.

There may even be occasions when we have intelligence to suggest that a person linked to hostile state activity is travelling to the UK for a hostile purpose but the intelligence we have is incomplete and the nature of the hostile purpose cannot be determined; therefore, we cannot assess whether the purpose is linked to a serious crime. In this circumstance, it would be very important to have a power to stop and examine them at the port to establish the nature of the hostile act.

As noble Lords will know, following the appalling acts in Salisbury, the Government are undertaking a review of legislation to combat hostile state activity. Hostile activity, by its very nature, is often covert and undertaken by foreign intelligence officers or their agents seeking to acquire sensitive information to gain an advantage over the United Kingdom and undermine our national security. On occasions this activity may not be considered criminal under the law as it stands; for example, if a foreign intelligence officer intended to travel to the UK to maintain or build a relationship with employees contracted to work on UK defence projects with the aim of acquiring sensitive information, this may not be a crime but it would be imperative to detect and disrupt this activity at the earliest opportunity, before irreversible damage to our national security occurred.

It is entirely plausible that a hostile actor should want to visit the UK in order to collect classified documents from an agent who had committed acts of espionage on their behalf. It is not a crime for the hostile actor to receive these documents and leave the country but, although the individual has not committed a crime, a Schedule 3 examination would enable an examining officer to make a determination as to whether they have been engaged in a hostile act. An examination would also allow the examining officer to remove the classified documents from the hostile actor, preventing the disclosure of potentially damaging information.

Even though the purpose of a Schedule 3 examination is to make a determination as to whether the actor has been engaged in a hostile act, exercise of the power may provide a number of secondary benefits. In instances such as the example I have just talked about, it would provide the first leads into an investigation to detect who the agent is—if we did not already know—and prevent the documents from ever being disclosed. These investigations may or may not lead to future prosecutions. It is therefore right to give the police the power to investigate hostile state activity, even at a preliminary stage before we have reasonable suspicion that a foreign intelligence officer has committed an offence. I know that noble Lords do not really think that the police should not have the power to stop someone who is from, or acting on behalf of, a foreign intelligence service as they enter or leave the United Kingdom.

If we were to accept these amendments, traditional behaviours undertaken by hostile states which have the potential to have such a detrimental effect would fall out of scope of the power and we would not be able to detect, disrupt or deter them. I put it to noble Lords that such activity should not go unchallenged. The definition of “hostile act” is necessarily broad to ensure that the powers capture the full range of activities which hostile actors engage in. We recognise the concerns that have been raised and I reassure the Committee that these were considered in the drafting of Schedule 3. This is why we have explicitly restricted the definition to an act that is carried out for, or on behalf of, or otherwise in the interests of, a state other than the United Kingdom.

I also recognise the concerns about the term,

“economic well-being of the United Kingdom”.

As has been pointed out, there may be instances where an act undertaken by a hostile state actor threatens that economic well-being yet does not threaten our national security; it is also true for acts of serious crime. Economic well-being, like national security, is a term already used in UK legislation. The intention of this limb of the definition is to ensure that these powers can be used to mitigate hostile acts which could damage the country’s critical infrastructure or disrupt energy supplies to the UK. For example, if an employee in the banking sector of the City of London discovered a serious vulnerability in computer networks and shared this information with a hostile state, it would drastically undermine confidence in the City of London and cost the UK economy millions, if not billions.

I hope that with these explanations, the noble Lord will feel content to withdraw his amendment.

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Moved by

[Lord Rosser]

67ZA: Schedule 3, page 39, line 7, at end insert—
“( ) The Investigatory Powers Commissioner (“the Commissioner”) must be informed when a person is stopped under the provisions of this paragraph.( ) The Commissioner must make an annual report on the use of powers under this paragraph in the border area.”

[Lord Rosser]

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

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


It goes on to say:

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


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

“must be informed when a person is stopped”,

and,

“make an annual report on the use of”,

this power.

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

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


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

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

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

[Baroness Hamwee]

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

[Baroness Williams of Trafford]

As the noble Lord, Lord Rosser, pointed out, Amendment 67ZA would require an examining officer to notify the IPC each time a person is examined under Schedule 3 and require the commissioner to publish an annual report on the use of the powers in the Northern Ireland border area. In relation to the second part of the amendment, as the noble Lord stated, Part 6 of Schedule 3 already requires the commissioner to review the use of the powers and make an annual report.

The police will make a record of every examination conducted under Schedule 3, as they already do with Schedule 7. I reassure noble Lords that the commissioner will be afforded full access to these records on request, and to information on how the powers have been exercised. It would place an unnecessary burden on the examining officer to have to notify the commissioner each and every time a person has been examined.

Regarding concerns about how these powers will be exercised at the border in Northern Ireland, media and political commentary over the summer sought, wrongly, to conflate the introduction of this legislation with the discussions on the Irish border in the context of Brexit and concerns over the possibility of more stringent measures. The Security Minister wrote to the shadow Secretary of State for Northern Ireland on 4 October to address these concerns. I circulated a copy of that letter after Second Reading, so I will not repeat his response in full here. However, I want to reiterate that it is simply not the case that these powers will be used as an immigration control or to interfere with the right to travel within the CTA. Their application to the border area mirrors that of the analogous counterterrorism powers in Schedule 7 to the 2000 Act, which have been in operation for 18 years. In that time, we have not seen a blanket or large-scale use of these powers in the border area. In fact, the number of examinations in Northern Ireland as a whole during 2017-18 amounted to 6% of the UK total.

The Schedule 3 powers must be used only to determine a person’s involvement in hostile activity. The location and extent of their use will be informed by the threat from hostile activity and any decision to use them will be on a case-by-case basis. While the commissioner’s annual report will not provide a location breakdown of where the powers are exercised, for clear national security reasons, he will review police exercise of the powers, including their use in Northern Ireland.

The noble Lord, Lord Rosser, asked whether the Bill regularises stops that are already taking place under Schedule 7. The answer is no. Schedule 3 powers will be used only to determine whether a person is engaged in hostile activity. We have already discussed the definition of hostile activity. Its broad scope is to mitigate a range of threats. Schedule 7 is about persons engaging in terrorism.

I hope that I have been able to reassure the noble Lord, Lord Rosser, and that he will be content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that response and the noble Baroness, Lady Hamwee, for her contribution to this brief debate. The point I was seeking to clarify is that, as I understand it, the Government have maintained that sometimes the powers under Schedule 7 to the Terrorism Act 2000 were being used to stop people who, it might be argued, are involved in hostile activity. The point that I was trying to confirm is whether the Government feel that they are simply regularising what happened under another Act, or whether we are talking about a new group of people who may be stopped and detained. I gather from what the Minister said that we are, and that we are not talking about people who, rightly or wrongly, may have been stopped and detained under the Terrorism Act on the basis that it was counterterrorism.

I assume that the Minister is once again going to say that she is unable to respond, but are we expecting any significant increase in the number of people being stopped and detained? She said that they will be people who are not being stopped and detained at present under other powers when perhaps those powers should not have been used, and that these will be new people. Is that the situation? Is it likely to be an extensive number? She said that it would be very difficult for the commissioner to be advised every time somebody was stopped, which suggests that there will be significant numbers of people.

[Baroness Williams of Trafford]

Mercifully for the UK public, the number of people involved in hostile state activity is low. The commissioner will have access to all the reports. We are expecting far fewer stops than under Schedule 7. I think I expressed that, but in a different way. We do not expect a plethora of new cases. The IPC can have access to all the records, but he does not have to be informed every time. He will have all the information he needs.

[Lord Rosser]

I thank the Minister for that response. I want to reflect on what has been said. In the meantime, I beg leave to withdraw the amendment.

Amendment 67ZA withdrawn.

--- Later in debate ---

[Baroness Jones of Moulsecoomb]

My Lords, I spoke earlier in Committee about my opposition to the whole of Schedule 3. I shall now speak to my Amendments 68 and 69. I declare an interest: I have a journalist daughter and know many of her friends, and they could be very adversely affected by this part of the Bill because it is about the protection of journalistic material.

Because Schedule 3 of the Bill allows border officials to question, search and detain anyone at the border without any suspicion whatever, people carrying journalistic or legally privileged material might want to refuse to hand over that material without committing a criminal offence. Without Amendment 68, journalists and lawyers could be forced to hand over sensitive and confidential material at the border. This surely cannot be the Government’s intention in drafting the Bill, and it surely will not be Parliament’s will to allow such a scheme to become law.

Without Amendment 69, journalistic material confiscated at the border, including information about confidential sources, could be exposed in open court as evidence. This would be an enormous erosion of press freedom and the sacrosanct duty of journalists to protect their sources. It would have a chilling effect on individuals coming forward with information which is in the public interest. I have myself been approached by whistleblowers who are well aware of the severe consequences that await them. We must not add to the burden that deters people from coming forward with information about corrupt practices or wrongdoing.

As drafted, Schedule 3 would put sources in danger of losing their job, their liberty or even their life. The Government would never allow their confidential intelligence sources to be exposed in this way, and I ask the Minister to explain why journalists’ sources should be treated any differently.

Previously in Committee, the Minister declined to put specific protections in law for journalists on the basis that it was too broad a term. This is why my amendments and Amendment 71 in the name of the noble Earl, Lord Attlee, use the existing definitions in the Police and Criminal Evidence Act and the Investigatory Powers Act. I hope that this approach is more palatable to the Minister and could be adopted at Report.

I omitted to mention that the noble Earl, Lord Attlee, is unable to be here today. I said that I would say a few words on his behalf, and he said that he was sure that I could find the right ones—so let us hope that I have.

My amendments are essential to protect press freedom and the confidentiality of sources. I hope that the Minister will listen to the concerns and bring forward amendments to fix the problems highlighted. I beg to move.

[Lord Rosser]

We have Amendment 69A in this group. The purpose of our amendment is to provide that, where an examining officer wishes to retain an article which the owner alleges contains confidential material, the examining officer may not examine the article and must immediately send the article to the Investigatory Powers Commissioner. The commissioner must then determine whether the article contains confidential material and may then authorise the examination and retention of the article under the provisions of the Bill or return it to the examining officer if it is not confidential. This would provide for the independent oversight of confidential material, as required by the Miranda judgment.

I appreciate that what the Government propose is not in line with our amendment. However, we now have the code of practice, which states:

“If during the process of examining an article it becomes apparent to the examining officer that there are reasonable grounds for believing that the article consists of or includes items that are confidential material, the examining officer must cease examining”,


the item. It also states:

“An examining officer should take reasonable steps to review the credentials of an examinee to verify any such claim when considering whether there are reasonable grounds to believe that a specific item is confidential material”.


It would be helpful if the Minister could respond to my points, as the purpose of my amendment is primarily to find out how it is intended that the process will operate—although we would obviously be extremely grateful if the Government decided to accept the amendment. If an examining officer who reviews the credentials of an examinee feels that the credentials stand up, will they still be able to examine material which they think may be confidential? If the examinee has said that there is confidential material and the examining officer is satisfied with their credentials, is that enough to prevent the item being examined, or would the officer still be expected or able to examine an item to ascertain for themselves that it contains what appears to be confidential material?

In other words, on checking or reviewing the credentials of the examinee, if the examining officer is satisfied, does that mean that there is no question of the examining officer looking at any material that the examinee maintains is confidential, but instead they have immediately to send it to the commissioner to decide whether it should be retained?

Stop and Search Powers

Lord Rosser Excerpts

Monday 12th November 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Answer to the Urgent Question, which was prompted by media reports that the police want changes in the “reasonable suspicion” requirement before using stop and search powers. The vast majority of those stopped turn out to be innocent, and the Prime Minister, while Home Secretary, was concerned that it eroded the trust that ethnic minorities have in the police and in Britain as a fair society. The reality is that intelligence-led stop and search does work, but random stop and search does not work.

I note what was said in the Answer so will simply ask: have any discussions taken place between the Home Office and senior police representatives, including the national police lead for stop and search, at which the issue has been raised of changing or amending the requirement of “reasonable grounds for suspicion” before police use their stop and search powers?

[Baroness Williams of Trafford]

Regarding conversations, the British Transport Police hosted a police and public consultation forum on 2 November. It was a policing seminar on stop and search where debates were had on the effectiveness of stop and search on emerging knife crime and violence. As part of the seminar, the possibility of removing the requirement for reasonable grounds was debated within the group, but it was not put forward by senior officers and was only part of an informal discussion with stakeholders. The Home Office was not in attendance, and the NPCC issued a corrective statement to editors.

Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

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

[Baroness Hamwee (LD)]

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

“necessary and proportionate to do so”.

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

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

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

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

[Lord Rosser (Lab)]

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

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


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

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

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

--- Later in debate ---

I have an answer to the noble Baroness, Lady Hamwee, but I cannot read it and therefore do not know what the question was. Whatever the question was, I shall write to her about it.

[Lord Rosser]

On Amendment 65A, as I understand it, the Government are not arguing that the amendment in any way compromises the position of the security agencies but it would make clear in the Bill that such considerations need to be taken into account. They have been written into the draft guidance. What is the objection to putting them into the Bill in place of the current wording, which looks a bit like a random stop and search?

--- Later in debate ---

Moved by

[Lord Rosser]

53A: Schedule 2, page 38, line 17, at end insert—
“_(1) A person whose biometric data is retained under the provisions of this Schedule may appeal to the Commissioner for the Retention and Use of Biometric Material (“the Commissioner”) for the destruction of that data when the conditions in sub-paragraph (2) are met.(2) The conditions referred to in sub-paragraph (1) are—(a) that the retention of the biometric data has not been previously authorised by the Commissioner or a court of law; and(b) that the biometric data was taken from the person—(i) in circumstances where the arrest or charging of the person was substantially due to a mistake, whether of identity, place or other material fact; or(ii) the person was arrested but never charged for the relevant offence.(3) On receiving an appeal under sub-paragraph (1), the Commissioner must seek representations from the chief officer of police in the area in which the biometric data was taken as to whether the data should be destroyed or not.(4) The Commissioner must determine an appeal under sub-paragraph (1) within three months of receiving the appeal.”

[Lord Rosser]

Much of this Bill is about the appropriate balance between liberty and security in the present climate, where acts of terrorism are a reality rather than a distant or remote possibility. The differences of view over some parts of this Bill are in effect over where that appropriate balance between liberty and security should lie, since I presume that we are all in agreement with the principle that there has to be such a balance. Amendment 53A is also about where that balance should lie.

Clause 18 and Schedule 2 amend existing powers to retain fingerprints and DNA samples for counterterrorism purposes. The amendment would enable a person whose fingerprints and DNA profiles are retained under a power amended by Schedule 2 to apply to the Biometrics Commissioner for the data to be deleted.

The amendment highlights and addresses two scenarios. The first is where there has been a mistake, such as over identity, place or any material fact or in the intelligence. The second scenario is where a person has been arrested but not charged for the offence. Under the terms of the amendment, an application can be made to the commissioner for the destruction of data where one of those two scenarios has been met as well as the requirement that the retention of the data has not been previously authorised by the commissioner or a court of law.

On receiving an appeal from the person whose biometric data has been retained, the commissioner would then be required to seek representations from the relevant chief officer of police as to whether the data should be destroyed, with the commissioner having to determine the appeal within three months.

If people’s data are retained in circumstances where a mistake might have been made or where they have not ultimately been charged with an offence, they should be able to appeal to have it destroyed. That right of appeal is surely quite important. At present, the Police and Criminal Evidence Act states that biometric data must be deleted by the police if it was taken where,

“the arrest was unlawful or based on mistaken identity”.

As far as I can see, the Police and Criminal Evidence Act does not provide for a personal right to appeal, which is what this amendment would give. This is surely an important principle. This amendment does not overturn the principle that there should be a period of automatic retention following a lawful and correct arrest on suspicion of terrorism. Indeed, it does not remove anything from Schedule 2.

Under Schedule 2, the time period for national security determination is amended. An NSD allows a chief police officer to determine that it is necessary and proportionate to extend the retention period for biometric data for the purposes of national security for an extra two years to five years, where it would otherwise be destroyed. An increased period of five years is a long time to retain the data of persons who have never been charged with a crime, particularly in the absence of a right of appeal. The amendment seeks to provide such an appeal through the Biometric Commissioner, who would make a decision on retention of data or otherwise based on whether it was necessary and proportionate to do so.

I hope that the Government will feel able to accept that, in the changed circumstances provided for in the Bill, the right of appeal being sought in this amendment should be taken up. I beg to move.

[Earl Howe]

My Lords, as the noble Lord, Lord Rosser, has explained, this amendment would provide for a person whose fingerprints and DNA profile are retained under a power amended by Schedule 2 to apply to the Biometrics Commissioner for the data to be deleted if the commissioner or a court have not previously authorised its retention.

One of the circumstances in which this new process would apply is where an individual had been arrested or charged as a result of a mistake, such as mistaken identity. I am pleased to be able to tell the noble Lord that existing legislation already addresses such cases of mistaken identity, providing a stronger safeguard, in fact, than the one he is proposing. Section 63D(2) of the Police and Criminal Evidence Act 1984, or PACE, provides that biometric data must be deleted by the police, without the individual needing to appeal, if it was taken as a result of an unlawful arrest, or an arrest based on mistaken identity. Given this existing provision, I believe that this aspect of the amendment is not necessary.

The second limb of the amendment covers cases where a person has been arrested but not charged with an offence. Of course, we touched on this ground in debating Amendment 47, tabled by the noble Baroness, Lady Hamwee. As I indicated in response to that earlier debate, the Government’s view is that where someone has been lawfully arrested for a terrorism offence but not charged with that offence, it is none the less appropriate, necessary and proportionate that their fingerprints and DNA profile are retained by the police for three years. That approach has been firmly established for some years, through the Terrorism Act 2000, and we are now extending it to cover persons arrested for exactly the same terrorism offences under PACE. Consequently, I am not persuaded that we should now introduce a right of appeal to the Biometric Commissioner in such cases.

I stress that the Bill does not depart from the principle established by the Protection of Freedoms Act 2012 that the biometric data of a person who is arrested but not charged should not normally be retained indefinitely, as had previously been the case. In passing this legislation in 2012, Parliament recognised, rightly in my view, that in certain circumstances it is appropriate and in the public interest for biometric data to be retained for limited periods in the absence of a conviction. This includes when an individual is arrested under the Terrorism Act 2000 on suspicion of being a terrorist but is not subsequently charged. The law provides for a three-year automatic retention period in this situation. However, the retention of biometric data for any longer than this would require a national security determination to be made by a chief officer of police and approved by the independent Biometrics Commissioner.

As we have already debated, Schedule 2 makes an equivalent provision for a case where the same person may be arrested on suspicion of the same terrorist activity but under the general power of arrest in PACE. The flexibility to arrest an individual under the Terrorism Act or PACE is a decision to be taken by the police, one which will be based on operational considerations. It is a gap in legislation that the same biometric retention rules do not follow the two powers of arrest in terrorism cases, despite the fact that there may otherwise be no material difference between two such cases. Schedule 2 closes that gap. While I support the principle that biometrics taken following a mistaken or unlawful arrest should be deleted—that is the position at law already—I am afraid I cannot agree that we should remove the equally well-established principle that there should be a limited period of automatic retention following a lawful and correct arrest on suspicion of terrorism.

--- Later in debate ---

For all those reasons, I hope that I have been able to persuade the noble Lord, Lord Rosser, that the existing framework, as modified by Schedule 2, offers sufficient safeguards to address the points he has raised, and consequently that he will be content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that reply. Reference was made to the arrangements under PACE and the fact that biometric data must be deleted by the police if it was taken where the arrest was unlawful or based on mistaken identity, but what happens if it is not deleted in such circumstances?

As I understand it, there is no right of appeal for the individual under PACE, and I am not quite sure whether that is what the Minister was telling does exist as opposed to a duty on the policy to delete it where the arrest was unlawful or based on mistaken identity. There is a distinction between the police having a duty to do it if the arrest was unlawful or based on mistaken identity and the individual having a right to appeal on those grounds because it may be that that individual has information which for some reason or other the police did not have which might change their view on the matter. I am not clear whether the Minister was telling me that under PACE the individual has a right of appeal or whether it is just something that the police should do. I think there is a big difference between something the police should do and an individual having the right to challenge, which is what my amendment provides for, so I do not think that on that issue the Government have provided much of an assurance.

Reference was made to the basis on which the Biometrics Commissioner would consider the matter. I appreciate it is not in the amendment, but I said in my contribution that the decision on the retention or otherwise of data would presumably be on the basis of whether it was necessary and proportionate which, as the Minister said, is the basis on which the security issue and the extension of data would be based in the first place.

On the last point that the Minister made on behalf of the Government about the security issue of not being able to tell an individual the reasons for declining an appeal, which is presumably what we are taking about, in my amendment I am not suggesting that very sensitive and crucial information should be disclosed in announcing a decision. If the Government’s only real objection to the amendment is that if the reasons for the decision have to be declared in full it would cause difficulty, which I can understand, surely the matter could be looked at on the basis that the reasons given for the decision would be such as not to disclose sensitive information related to counterterrorism. I beg leave to withdraw the amendment.

Amendment 53A withdrawn.

--- Later in debate ---

[Lord Rosser]

I will listen to what the Minister says in response to the amendment, but from what I have heard so far, the case for it appears somewhat compelling.

[Baroness Williams of Trafford]

My Lords, it is never nice to stand up and feel defeated on a matter. I shall outline the various points on proscription. As noble Lords will know, the effect of proscription is that the organisation is added to Schedule 2 to the 2000 Act, and that a number of offences bite in relation to membership and support for it. In practice, the Home Secretary is responsible for proscriptions relating to international and domestic terrorist groups, and the Northern Ireland Secretary for Northern Ireland-related terrorist groups.

Under Section 4 of the 2000 Act, either a proscribed organisation itself, or a person affected by its proscription, may apply to the Secretary of State for it to be deproscribed. Section 5 establishes the Proscribed Organisations Appeal Commission to consider appeals against refusal of an application under Section 4, and there is a route of appeal on a point of law from the commission to the Court of Appeal.

Amendment 59 would place a duty on the Secretary of State to review every proscribed organisation on an annual basis, to determine whether it continues to meet the legal test for proscription. The Secretary of State would, further, be required to decide whether each organisation should remain proscribed or should be deproscribed, and to publish that decision. As the noble Lord, Lord Anderson, has explained, his amendment reflects recommendations he made in his former role as Independent Reviewer of Terrorism Legislation—a role which he performed with great eminence and authority, and in which he made a great contribution. I do not think that he will agree with me just because I have said that.

The noble Lord will, of course, be familiar with the Government’s long-standing policy on removing terrorist organisations from Schedule 2 to the 2000 Act, from the responses of successive Home Secretaries to his reports as independent reviewer. However, for the wider benefit of your Lordships, I will, if I may, spend a short while setting this out. The Government continue to exercise the proscription power in a proportionate manner, in accordance with the law. We recognise that proscription interferes with individuals’ rights—in particular the rights protected by Articles 10 and 11 of the European Convention on Human Rights: freedom of expression and freedom of association. That is why the power is exercised only where necessary.

We should recall that organisations are proscribed for a reason—because they are concerned in terrorism. Our first priority is to protect the public and support our international partners in the fight against terrorism, and the power to disrupt a proscribed organisation by preventing it from operating or gaining support in the UK is an important one in this struggle. Where the Home Secretary has decided on advice, including from operational partners, that this test is met, with the serious consequences that flow from that, we consider it appropriate to continue to take a cautious approach when considering removing terrorist groups from the list.

While we take extremely seriously our responsibility to protect the public and to prevent terrorist groups from operating in the UK, it is not the Government’s position that once a group has been proscribed that should simply be indefinite, without the prospect of ever being removed from the list. To this end, Parliament provided a clear route for any proscribed organisation, or any person affected by an organisation’s proscription, to submit an application to the Home Secretary for the organisation to be deproscribed. Indeed, three groups have been deproscribed following such applications.

This, I believe, is the most appropriate and balanced way to deal with the question of deproscription. It ensures that any person who believes that any proscription is inappropriate has a clear route to challenge that proscription, so that groups which are not concerned in terrorism and no longer pose a risk to the public can be deproscribed. But it also avoids placing the public at risk, or causing alarm, through precipitate decisions to lift restrictions on organisations with a significant terrorist pedigree but which may have, for example, become less visibly active in recent times. It is an enduring feature of the terrorist threat that both individuals and organisations with a terrorist mindset can disengage and then re-engage in terrorist activity, potentially without warning. Such individuals and groups will continue to pose a threat, and to be properly characterised as terrorist, during both their fallow and active periods, and it would not be responsible for the Government to remove the prohibitions and stigma that apply to proscribed organisations unless we are truly certain that they have changed and no longer pose a threat.

The Government are committed to ensuring that the right groups are proscribed and that the public are protected. But we are not persuaded that introducing regular formal reviews of past proscription decisions would in practice prevent any injustice, particularly given the existence of a review system on application, whereas such a system of formal reviews could lead to perverse outcomes and would have a significant operational impact in terms of diverting investigative and intelligence resource from current threats to public safety in order to carry out the reviews.

--- Later in debate ---

Moved by

[Lord Rosser]

59A: After Clause 20, insert the following new Clause—
“Continued participation in the European Arrest Warrant
(1) It is an objective of Her Majesty’s Government, in negotiating the withdrawal of the United Kingdom from the European Union, to seek continued United Kingdom participation in the European Arrest Warrant in relation to persons suspected of specified terrorism offences.(2) In this section, “specified terrorism offences” has the same meaning as in Schedule 15 to the Criminal Justice Act 2003.”

[Lord Rosser]

My Lords, the effect of this amendment is to insert a new clause into the Bill which would make it an objective in the Brexit negotiations to continue participation in the European arrest warrant. European arrest warrants are valid in all member states of the European Union and can be used to ask a state to arrest and transfer a criminal suspect to be put on trial, or to ask for someone who is sentenced to custody to be transferred to the UK to complete their sentence. In the calendar years from 2010 to 2016, the United Kingdom issued 1,773 requests. Of these, 11 related purely to terrorism and a significant further number to organised crime including human trafficking, child sex offences and drugs trafficking.

Extradition outside the European arrest warrant can cost four times as much and take three times as long. It would also mean an end to the significant exchange of data and engagement through Europol. In counterterrorism investigations, speed is of the essence and it is thus vital that we have the objective of continuing to play a key role on the European security scene. Recently the European arrest warrant has been obtained in respect of the two suspects in the Salisbury attacks, which means that if they set foot in the European Union they will be remanded to the UK to face justice.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I thank all three noble Lords for their points on the European arrest warrant and our future law enforcement, internal security and criminal justice relationship with the European Union following our exit from it. The Prime Minister has repeatedly made clear that the UK is unconditionally committed to maintaining Europe’s security now and after our withdrawal from the EU. We are proposing a comprehensive security relationship which preserves that mutually important operational capability that enables UK and EU operational partners to work together to combat fast-evolving security threats, including in respect of terrorism and hostile state activity.

In July, the Government published a White Paper on our future relationship with the EU. It sets out how we are seeking a relationship that provides for mechanisms for rapid and secure data exchange, practical measures to support cross-border operational co-operation, and continued UK co-operation with EU law enforcement and criminal justice agencies. We continue to value our co-operation and information sharing on issues such as extradition, and believe that a pragmatic solution is in the interests of EU member states and the UK. Our primary objective is to keep our citizens safe.

While I welcome this opportunity to reiterate the Government’s commitment to maintaining a strong security partnership with the EU after exit, the nature of the future relationship is a matter for negotiations. As such, it would not be appropriate or necessary to include in primary legislation any measure that pre-emptively binds the Government’s hands by setting our negotiating objectives. That point was accepted when this matter was voted on in the House of Commons in September, and was accepted by both Houses when the European Union (Withdrawal) Bill was enacted.

We are clear that we want a security partnership that maintains co-operation in these areas but negotiating objectives are just that, and not a matter for this or any other Bill. Parliament will agree the final form of the withdrawal agreement when legislation to give effect to it is brought forward in due course. Therefore, at this stage, I ask the noble Lord to withdraw his amendment.

[Lord Rosser]

I thank the Minister for her reply and other noble Lords for their participation in this brief debate. From what has been said in response, I am not entirely clear whether that meant that it was part of our negotiating position that we would continue to participate in the European arrest warrant, or whether the Government are accepting that, under whatever deal is done, it will not be possible to continue to participate, for some of the reasons that have already been voiced in this evening’s debate. I do not know whether the Minister is able to help me on that and say whether it is our negotiating position to try to remain within the European arrest warrant system or whether the Government accept that we cannot, and the hope is that something comparable can be the subject of negotiation.

[Baroness Williams of Trafford]

I said to the Committee that that aspect of security co-operation was absolutely vital, and therefore some sort of security agreement was being worked on at the time. I cannot pre-empt what that will look like, but all the co-operation we enjoy now should continue, although, as the noble Lord, Lord Paddick, said, it may not be in the form of a European arrest warrant, given that no other non-EU states have been able to avail themselves of it. But it should certainly align closely with what we have now.

[Lord Rosser]

I thank the Minister for that clarification. This short debate has been useful; one thing it has shown—by the way, I do not suggest that it has only just come to light—is that the future of the European arrest warrant is in doubt at present, which is potentially quite serious from our nation’s point of view. Let us hope that that does not come to pass. I beg leave to withdraw the amendment.

Amendment 59A withdrawn.

Brexit: Arrangements for EU Citizens

Lord Rosser Excerpts

Monday 5th November 2018 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for repeating the Answer to the Urgent Question in the other place. Last week the Immigration Minister told the Commons Home Affairs Select Committee that in the event of a no-deal Brexit:

“If somebody has not been here prior to the end of March next year, then employers will have to make sure that they go through adequately rigorous checks to evidence somebody’s right to work”.


First, was that statement correct in all respects: that employers after 29 March 2019 will have to differentiate between resident EU citizens already here and those arriving after our departure from the EU? Secondly, if the Immigration Minister’s statement was correct, what form will these “rigorous checks” after 29 March take that employers will have to make sure that EU citizens not already here prior to that date will have to go through to evidence their right to work? How will these rigorous checks differ from what employers have to do at present when EU citizens seek work here under the existing EU free movement of labour provisions? Finally, when will sadly lacking publicly available written guidance on this specific issue be provided?

[Baroness Williams of Trafford]

I thank the noble Lord for that question. Regarding employer checks, he will know that employers already need to carry out right-to-work checks on EU citizens, and that will not change. It is clear that employers will carry out right-to-work checks on EU citizens as they already do, and they will not be expected to differentiate between a resident EU citizen and those arriving after March 2019. However, in addition, I understand that employers have been given toolkits to enable them to carry out their duties in the right way.

Knife Crime

Lord Rosser Excerpts

Monday 5th November 2018 Lords Chamber

[Baroness Williams of Trafford]

I join the right reverend Prelate in his sympathy for the families—it must be devastating for every family that has lost someone to such a dreadful crime. The right reverend Prelate may remember that in October the Home Secretary announced further measures, including a commitment to consult on a new legal duty to underpin a public health approach to tackling serious violence, bringing all relevant partners together and making this a top priority. It will be supported by a youth endowment fund— £200 million over 10 years from 2020—to divert young people from crime and violence. He is absolutely right to suggest a multiagency approach.

[Lord Rosser (Lab)]

My Lords, we all deplore the level of knife crime and its impact on the many people who are affected. We all support the London mayor’s call for a long-term approach. Nevertheless, since 2010 the Government have maintained that the level of crime is not influenced by reductions in the number of police officers and in neighbourhood policing. The Met Police Commissioner said last week that forces were stretched. In the light of the increase in violent crime, the increase in reported crime, falling clear-up rates and the increase in the number of crimes that do not even get properly investigated, will the Government confirm that it is still their view that the number of police officers, which has fallen considerably since 2010, has no impact on the incidence and level of crime?

[Baroness Williams of Trafford]

My Lords, I think that the noble Lord would agree that my right honourable friend the Home Secretary and the policing Minister have acknowledged the increasing calls on police time and resources, particularly over the past two years, but our analysis points to a range of factors driving serious violence, most notably in the drugs market. The Government, therefore, understand that police demand is changing and becoming much more complex. Noble Lords will know—I have said it before—that the Minister for Policing and the Fire Service has visited police forces across England and Wales and that was why the funding settlement of more than £460 million in 2018-19 was arrived at. Early intervention is, however, crucial in this area, particularly for young people.

Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

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

Moved by

[Lord Rosser]

1: Clause 1, page 1, line 8, after “belief” insert “, as part of a pattern of behaviour,”

[Lord Rosser (Lab)]

My Lords, this Bill creates an offence of expressing an opinion or belief that is supportive of a proscribed organisation if the person doing so is reckless as to whether a person to whom the expression is directed would be encouraged to support a proscribed organisation. Currently, encouragement of and invitation to support a terrorist organisation is a criminal offence, so what is proposed in the Bill is, in reality, an extension of this. The Bill requires not an intent to increase the ranks or membership of the proscribed organisation, but rather being reckless as to whether another person would be more likely to support the proscribed organisation as a result of the expression of an opinion or belief that is supportive of a proscribed organisation.

The Joint Committee on Human Rights has pointed out that the wording of the Bill could cover an academic debate if, for example, those taking part were speaking in favour of de-proscription of a currently proscribed organisation. The wording could also cover a similar debate taking place in the pages of national or other newspaper or journal. What also appears clear from the wording is that a person potentially commits the offence if they express their opinion or belief that is supportive of a proscribed organisation just once.

The test of the wording is presumably whether a reasonable person would regard the expression of the opinion or belief as encouragement to support a proscribed organisation rather than whether someone had actually been encouraged to join such an organisation. Perhaps the Minister can pick up or confirm that point in her reply and explain how the Government intend that “reckless” should be interpreted or defined in the context of this Bill.

It seems that one purpose of Clause 1 is to address the situation if Mr Choudary, just released from prison, continues to express his views to others, or someone with a similar outlook does likewise. There were clearly difficulties under the law as it stands in pursuing a successful prosecution against Mr Choudary, bearing in mind the length of time it took for that to happen. However, the snag is that, in seeking to address the situation to which I have just referred, we may end up criminalising, or silencing through fear of being criminalised, those who have no intention or wish to make it more likely that others will support a proscribed organisation but who are expressing an opinion in the legitimate pursuit of their employment or profession—for example, as an academic or a journalist might. We may also end up criminalising those who say something only once, and certainly not with any thought that it might encourage support for a proscribed organisation.

Amendment 1 provides that the expression of an opinion or belief that is supportive of a proscribed organisation has to be,

“as part of a pattern of behaviour”,

with the intention that only those who express such opinions or beliefs as part of a regular pattern of behaviour that is supportive of a proscribed organisation would be deemed to have committed the new offence. That should make it less likely that those involved in legitimate academic work or journalism, for example, could fall foul of Clause 1, as well as an individual expressing and directing their opinion or belief for the first occasion to others, perhaps without realising the significance of what they are doing.

--- Later in debate ---

I should add that this provision will fall within the statutory remit of the Independent Reviewer of Terrorism Legislation, as does the existing Section 12 offence. This robust and staunchly independent oversight will help us to ensure that the amended offence is used appropriately and will bring to Parliament’s attention any concerns that it is not. I therefore hope that the noble Lord, Lord Rosser, will be content to withdraw his Amendment 1 and that the Committee will support Clause 1 standing part of the Bill.

[Lord Rosser]

I thank all noble Lords who spoke on this group of amendments. It has been a very wide-ranging debate with a wide range of views either supportive of or opposed to Clause 1, or to specific amendments we have debated. I certainly do not intend to try to summarise what has been said or to comment on the response we have heard from the Minister. As I said, I thank her very much for her reply, which I am sure has been appreciated because it was comprehensive and addressed a number of the questions raised, albeit people will of course have different views on whether they found that reply acceptable.

As far as my amendment is concerned—it related to pattern of behaviour—I do not want to say anything that commits me one way or another to doing anything on Report, but I will certainly reflect on what the Minister said when arguing against it. One of her points was that it was not in the existing offence, but it could be that the existing offence is rather more clearly definable than the new offence that appears in Clause 1. We had similar difficulties over the three clicks issue. That was slightly more difficult than, frankly, seeking to define what a pattern of behaviour might be.

I conclude by once again thanking noble Lords who have participated in the debate on this group of amendments and genuinely thanking the Minister for her reply: I am sure the House will have appreciated the depth to which she went in explaining the Government’s position. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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Moved by

[Lord Rosser]

10: Clause 2, page 2, line 20, at end insert—
“(5) Before subsection (4) may come into force the Secretary of State must consult the Police Service of Northern Ireland and the Public Prosecution Service of Northern Ireland on the introduction of the power to seize an item of clothing or any other article in Northern Ireland.”

[Lord Rosser]

Clause 2(4) confers on the police power to seize clothing or any other article, including flags, associated with a proscribed organisation. The Bill would enable the officer in the circumstances to seize items such as flags, provided that the officer was satisfied that it was necessary to seize such an item to prevent the evidence being concealed, lost, altered or destroyed—evidence that could well be crucial in pursuing an investigation and bringing a successful prosecution.

When this matter was discussed during the passage of the Bill through the Commons, the Government were asked what engagement there had been with the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland about the terms of Clause 2 and the difficulties in pursuing such prosecutions. In response, the Government accepted that taking away a flag in certain parts of Northern Ireland had on occasions acted as something of a lightning rod for a riot or a breakdown in civil order, and that in Northern Ireland a flag does not necessarily, in the context of the provisions of this Bill, have pure terrorist content. The Commons Minister said he did not want to see,

“flag protests becoming more and more polarised than they were in the past”.—[Official Report, Commons, 11/9/18; col. 661.]

In view of the potentially sensitive nature of this issue in Northern Ireland, the amendment would ensure that Clause 2(4) on seizures could not come into force until the Secretary of State had consulted the Police Service of Northern Ireland and the Public Prosecution Service for Northern Ireland on the introduction of the new provisions in the Bill in relation to the power to seize.

It would be helpful if the Minister could say how the Government envisage the power to seize working across the UK generally. Presumably, there will still be the same potential confrontation over seizing an item, whether on arrest or subsequently reporting the person for summons, with an indication of that course of action being given to the individual concerned at the time. On the basis of what evidence do the Government believe that the likelihood of confrontation will be reduced? Presumably, those on marches or demonstrations will soon know that court proceedings are still likely or possible under reporting a person for summons. Or is the purpose of this option of seizure—of, for example, a flag—in reality a reason to do it this way and then not pursue the matter any further through the courts?

Presumably, there will still be a need to obtain an individual’s name and address on the street at the march or demonstration before or after the seizure of the flag or other item in question, and that information may or may not be given. Both issues—namely, trying to seek such details and the seizure of the flag before or afterwards—might still provoke confrontation. It would be helpful if the Minister could address that point in her response, as well as the more specific issue of the application of the clause in Northern Ireland. I beg to move.

[Lord Paddick]

My Lords, briefly, I support the amendment. Judging from the Minister’s non-verbal reaction to it, the consultation proposed seems extremely sensible given the history in Northern Ireland. On whether or not the police will use these powers in a public order situation, the police are very experienced—I declare an interest as a former advanced public order trained police officer who dealt with such situations—and, clearly, a decision has to be made on the basis of the circumstances at the time whether items can be safely seized without escalating the situation. The police service is very well equipped in deploying professional photographers and others gathering video evidence which can be used instead of, or in addition to, seizing those items. So although I agree with the sentiment behind the amendment concerning Northern Ireland, I do not share the concerns of the noble Lord, Lord Rosser, about the seizure of items potentially escalating a situation.

--- Later in debate ---

[Baroness Williams of Trafford]

Ignoring what I just said—I am not sure how that happened—I hope that, with the explanation I have given, the noble Lord will feel happy to withdraw the amendment.

[Lord Rosser]

I thank the Minister for her response and thank other noble Lords who participated in this brief debate. Can she confirm that the reason for changing seizure provisions so that seizure can be dealt with by having a person reporting for summons is not meant to be taken as meaning that, where clothing or flags are seized under these provisions, in reality the matter would not be pursued through the courts?

I probably have not made myself clear. There will now be a procedure where clothing, or a flag in particular, could be seized in circumstances where the person could be reported for summons. I asked whether in reality that procedure meant that, once the flag had been seized, the chances were that the matter would not be pursued any further through the courts or whether it was still likely that matters would be pursued through the courts.

[Baroness Williams of Trafford]

Generally, the seizure would be with a view to prosecution, yes.

[Lord Rosser]

I am grateful to the Minister for that clarification, and in thanking her once again for her response, I beg leave to withdraw my amendment.

Amendment 10 withdrawn.

--- Later in debate ---

Moved by

[Lord Rosser]

11: Clause 3, page 2, line 27, after “accesses,” insert “as part of a pattern of behaviour,”

[Lord Rosser]

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

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

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

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

“as part of a pattern of behaviour”,

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

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

“as part of a pattern of behaviour”,

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

[Baroness Hamwee]

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

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

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

“to commit or encourage acts of terrorism”.

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

Amendment 13 adds the phrase,

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

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

--- Later in debate ---

[Lord Rosser]

I once again thank all noble Lords who have participated in this debate and I thank the Minister for his response. I will be brief. The purpose of the amendment, as I hinted at the end of my contribution, was that, if the Government did not find favour with it, they would say what steps they intended to take to ensure that those with legitimate business in relation to material covered by the clause did not find themselves in difficulty under the terms of the new offence. I accept that the Minister has sought to address that point. The issue between us, if it turns out that there is an issue, will be whether the procedures outlined by the Minister will be sufficient to prevent anybody who is not acting with malice—not engaged in terrorist activity—being caught by this offence. With that, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

--- Later in debate ---

[Lord Judge]

I am sorry. I shall not go through the various arguments. I put my name to this amendment. It is a closed list. Different aspects of it need to be considered and various points have been raised around the Committee. The principle needs be accepted by the Government that we are dealing with the designated areas legislation. The designated areas cannot be considered in relation to just new Section 58B, but to new Section 58C, which will enable the Secretary of State to decide where an area should be designated for the purposes of new Section 58B. Therefore, the imperative is not just to have a vague reasonable excuse defence, but to say that there are certain situations in which, if an individual goes to an area that has been designated by regulation by the Secretary of State, no offence would be committed. That is the end of it. It is not a question of him or her advancing a defence and saying, “This is my reasonable excuse”.

I implore the Government not be put off by the fact that this will take some sorting out. We need to sort it out. An offence will not be committed if you go on, for example, humanitarian grounds. There are plenty of different reasons, but if you are not committing an offence then that is the end of it. Given the nature of the offence that is being created related to designated areas, that is what needs to be achieved.

[Lord Rosser]

We have Amendment 23 in this group, which is very similar, certainly in intent, to that moved by the noble Lord, Lord Anderson of Ipswich. For that reason, I do not intend to speak at any great length since I support what he said.

We are aware of the reasons why the Government want to create a new offence of entering or remaining in a designated area in connection with the work of containing and combating the threat of terrorism and terrorist-related activity. However, this is once again about ensuring that those who are in a designated area on legitimate—indeed, quite possibly vital and crucial—business do not find themselves committing an offence of being or remaining in that area.

Our amendment, like that moved by the noble Lord, Lord Anderson of Ipswich, specifically provides that an offence of being or remaining in a designated area is not committed under the Bill’s terms by those carrying out specific named activities—in our amendment, journalism, humanitarian work and family visits, for example, and any other activities provided for in the subsequent regulations. Our amendment is also based on the Australian model of including exemptions in the Bill. It also provides that a person might be required to provide evidence as to their purpose in line with what we understand to be in the Australian legislation.

Immigration

Lord Rosser Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Rosser (Lab)]

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

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

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

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

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

According to the Statement, the internal review,

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

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

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

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

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

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

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

[Baroness Hamwee (LD)]

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

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

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

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

The Statement refers to,

“how to address the root causes”,

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

“fit for the modern world”.

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

Border Force: Heathrow Airport

Lord Rosser Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Rosser (Lab)]

My Lords, the figure that the Minister gave of 95%, I think, covers all terminals at Heathrow and the whole day. The biggest problem of delay is at terminals 4 and 5 during the peak summer months and at specific periods of the day. The figure then is nothing like 95%. Can the Government now give us relevant figures on the percentage of non-EEA passengers arriving at Heathrow terminals 4 and 5 in the peak summer months during the periods when those terminals are at their busiest who experience delays exceeding the service level agreement, which I think is the information that my noble friend Lord Blunkett would like?

[Baroness Williams of Trafford]

The reason I have not given the noble Lord those figures is because I cannot give them. We are certainly looking through the aviation strategy to provide improvements and looking at the service level agreements that we have made.