Immigration Bill

Lord Rosser Excerpts

Monday 3rd March 2014 Lords Chamber

[Lord Avebury (LD)]

My Lords, I agree with what my noble friend has just been saying, particularly about the failure of the Home Office to deal with the serious criticisms of the case owners that were referred to earlier by the noble Lord, Lord Ramsbotham. The whole point about disbanding the UKBA and returning these functions to the control of the Home Office itself was that by common acknowledgement, including that of the Home Secretary herself, the UKBA had become dysfunctional and something had to be done. However, what has in fact been done since it was disbanded is that the case owners are not the same persons who were making decisions before and were manifestly incapable of doing the right thing, by reason of the fact that a very large number of the appeals against their decisions were upheld by the tribunal. It would be useful if we had an answer to both that question and the noble Lord’s further question about the consideration of Outsourcing Abuse, the report to which he referred, which never had the consideration that I believe it deserved in the Home Office but is crucial to the future health and efficiency of the people who are making these fundamental decisions, which affect the lives of so many people.

On these amendments, I agree with the Delegated Powers Committee that the definition of “family members” must be in the Bill and limited to those whose leave to enter or remain in the UK is expressly dependent on the principal’s leave to enter or remain. For example, a family member who came to the UK for work or study, not as the dependant of the principal, should not be included in the definition. That seems to be the effect of Regulation 3 of the draft Immigration (Removal of Family Members) Regulations 2014 but, as has been said, it should be in the Bill. As the Delegated Powers Committee found, the justification for placing both this and the time limits for removal in secondary legislation—that they may have to be amended from time to time—is not borne out by experience over many years and through a good many immigration Acts.

Draft Regulation 4 has the same effect as Section 10(1)(c) of the 1999 Act, providing that notice has to be given to any family member who is liable to removal, but the Bill provides only that notice “may” be given, as my noble friend Lady Hamwee pointed out in moving the amendment. This is partly covered by our Amendment 4, but the Minister may wish to consider placing the obligation to give notice firmly in the Bill. As ILPA makes clear in its briefing, quoting the noble and learned Lord, Lord Steyn, giving notice is vital for the legality of the decision to remove a person so as to give him the opportunity of challenging the decision before the courts. The Secretary of State’s attempt to remove certain persons without notice has been ruled unlawful by the High Court and the Court of Appeal. In short, the powers and safeguards dealing with the identification of family members who may be removed, the question of when the powers may be exercised and the notice to be given should all be in the Bill, as should the provisions of Section 10(5) of the 1999 Act, providing that removal directions should cease to have effect against a person who ceases to be a family member.

[Lord Rosser (Lab)]

My Lords, I will not at this stage make any comments relating to the extension of enforcement powers but will wait until we discuss Amendments 12 and 13. We are not opposed to the principle of Clause 1 but we have questions to raise. We cannot see what the problems for the Government would be in accepting Amendments 5, 6 and 7, and we await the Minister’s response with interest.

We have Amendments 2 and 8 in this group. Amendment 2 is not dissimilar to that moved by the noble Baroness, Lady Hamwee, and provides that a person should be given written notice of their liability for removal. According to the Government, there are approximately 14,000 enforced removals a year, with people being arrested, detained and then removed, and about 29,000 people depart voluntarily to a greater or lesser degree. Apparently, an enforced removal costs about £15,000.

The Immigration Act 1971 requires written notice of decisions to give, refuse or vary leave to be in the United Kingdom. Currently, migrants are told if they are not allowed to be here, and they are then told separately about their removal. Under the Bill, the Government want to be in a position to serve only one decision that gives, refuses or varies leaves and, following that decision, where notice has been given, those who do not have leave to remain will be subject to removal without a separate removal decision or notice being required. It seems that the notice giving the decision on leave to remain will tell the immigrant of their destination for removal, advise them to seek early legal advice and place them under a duty to raise any asylum, human rights or European free movement issues with the Home Office. It is not clear why this is not stated in the Bill. No doubt the Minister will explain why and indicate what else will be required to be included in this decision notice. Apparently, the decision notice will be issued at least 72 hours before any removal is attempted, which is in line with the amount of notice given currently when a removal decision notice is issued. Will the decision notice make clear the individual’s liability to removal, and will it state when, where and how that removal will take place? I look to the Minister to give a response to that question when he replies. Will the minimum 72 hours apply to family members? The draft regulations refer to,

“at any time prior to … removal”.

I hope the Minister will respond to that question. Included in the decision notice will be options for voluntary departure and the consequences of not so departing. Will the Minister say what the consequences of not departing voluntarily will be that will be set out in the notice and, once again, why that should not be in the Bill?

Since financial reasons appear in part to be behind the provisions in Clause 1, will the Minister say what the Government anticipate those savings will be and what impact the change to not having a separate removal notice will have on the number of enforced removals and on the number of people departing voluntarily? Perhaps he will also say what impact the Government expect the change to having no separate removal notice will have on the net migration figure each year, since one assumes that one key purpose of the Bill, as far as the Government are concerned, is to have an impact on that overall figure. It seems unlikely that the current system will be strengthened if the time gap between an individual receiving notice that they do not have leave to be in the United Kingdom and the time they are removed if they do not leave voluntarily is longer than under the current arrangements, under which a separate notice of removal decision is issued. Will the Minister say how long it currently takes, on average, for an attempt to be made to remove a person following a refusal to grant or vary leave being made, how long it takes following the removal decision being sent, and how long the Government intend it should take under the proposed arrangements with only one decision notice being issued in the light of the intention that a decision notice will be issued at least 72 hours before a removal is attempted?

Amendment 8 provides that the regulations that the Secretary of Sate can make about the removal of family members under Clause 1(6) should not be made unless a draft has been made before and approved by resolution of each House of Parliament. The Bill does not provide for this to be the case in respect of regulations under Clause 1(6), which would not be subject to the affirmative procedure. Clause 1(6) enables the Secretary of State to enable regulations that, in effect, define who should be considered a “family member” and the period during which they may be removed. Surely legislation should be clear about the people who are subject to the powers it contains. The Secretary of State’s definition of a family member, which could be wide-ranging, should be subject to full discussion and affirmative approval by both Houses.

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

My Lords, this has been a welcome start to the Bill. Although we have strayed into some of the subsequent elements in discussing this, that is inevitable because the Bill knits elements together. It is proper that we see how the provisions of Clause 1 fit into the other aspects of the Bill.

I think that we can all agree that our current system for removal is too complex. It requires a number of decisions and notices to be made and served. Separate refusal and removal decisions can cause confusion to migrants as to when they need to leave the UK and lead to legal challenges being made later in the process

I start by considering the two amendments so ably moved by my noble friend Lady Hamwee. We know that she works assiduously on these Bills, whether or not she has taken home the guidance brochure this past weekend. Amendments 1 and 2 would ensure that a person must be given written notice of their removal. Amendment 1 also mandates setting out the date and approximate time of that removal. While I understand the broad intention behind Amendment 1, this would inadvertently reintroduce a layer of complexity, which the whole purpose of the clause is to reduce.

The intention behind Clause 1 is to move to a system where only one decision is made and served, giving, refusing or varying leave. Following that decision, those who require leave but do not have it will be removable.

I can confirm to my noble friend Lady Hamwee, and indeed to other noble Lords, that such people will all receive notice of the decision in writing, in accordance with Section 4 of the Immigration Act 1971, so it is unnecessary to place an additional notice requirement within this clause. This notice will inform them of the decision on leave, of their liability to be removed if they do not depart voluntarily, and the proposed destination for any enforced removal.

It would not be feasible to provide a date or approximate time of removal in this notice. Not all those who become liable to removal will be facing an enforced removal, as we—and, I think, all noble Lords—would always prefer that those who do not have valid leave to be in the country should return home voluntarily. This allows the migrant to depart on their own terms, is more cost-effective for the taxpayer, and, if the migrant leaves without the use of taxpayer resources, they can reduce the likelihood of, and possibly avoid, a re-entry ban.

I turn to the comments of my noble friend Lady Hamwee on the deemed service of the decision. She will be well aware that “deemed service” replicates the existing notice provisions, which have been shown to work effectively and are interpreted with a degree of flexibility, such that if the person can show that they received the notice at a later date, we will accept that as the date of service. There are established procedures on the delivery of notice and, indeed, they are set out in the regulations.

All migrants will be given the opportunity to raise with the Home Office any asylum, human rights or European free movement reasons why they believe they are entitled to stay in the UK. They will be informed that they are under a duty to do so at the earliest opportunity if their circumstances change, and will be advised to seek any legal advice as early as possible.

I hope I can reassure the most reverend Primate the Archbishop of York, who I am delighted is participating in our debates today, that the common law principles of access to justice mean that migrants will be given sufficient time—a minimum of 72 hours—to raise such grounds before any removal can be enforced. They will be reminded of the fact that they may be removed from the UK if they do not depart voluntarily during any contact management events. If the migrant’s removal is enforced but they are compliant with the process, they will be informed of when to check in to the port of departure. If the migrant is not compliant, they will first be detained, where they will be informed when removal is imminent.

The noble Lord, Lord Ramsbotham, mentioned our very productive meeting. Although I cannot share his view of the hard-working people we ask to handle this difficult task on our behalf, I note what he says about oversight. I should say that quality assurance checks are part and parcel of the process. However, we recognise that there is room for further improvement. As such, we have an ongoing programme of work to continue to monitor and progress our decision quality.

Amendments 4 to 7 seek to remove the discretion in the regulations as to whether we notify family members of removal. We have already stated our intention that family members will always be given notice where they are to be removed. I hope that it pleases the noble Baroness, Lady O’Loan, and my noble friends Lady Hamwee and Lord Avebury, that it is our intention to work out how to address the recommendations of the Joint Committee on Human Rights on Clause 1. We will amend the Bill on this subject. However, I remind noble Lords that it was only on 21 February that we received the report of the Delegated Powers and Regulatory Reform Committee, making some similar recommendations. We are working out how to address both issues on Report. I hope I will return on Report. I reiterate that we will amend the Bill to meet the issues raised by these reports.

I now turn to Amendment 8. I appreciate the concerns raised by the noble Lord, Lord Rosser, about the processes surrounding the removal of family members which have led to his tabling this amendment. At the risk of jumping ahead of ourselves, Clause 67 sets out the proposed parliamentary procedures in respect of various order and decision-making powers provided for in the Bill. It already specifies that any power to make an order or regulations is exercisable by statutory instrument and that, for this particular power, it is under the normal process of negative rather than affirmative procedure. The draft affirmative procedure is normally reserved for those orders or regulations that amend or repeal primary legislation, or develop policy in a way to require significant parliamentary debate, or where the intention behind the power to make them is not clearly set out in the Bill. This Bill is clear on the intent of the regulations. The scope for a Government to construct anything that would require significant debate in a statutory instrument deriving from it is limited.

The existing removal powers that are in force allow the removal of family members. Unlike in deportation cases, there is currently no statutory definition of what constitutes a family member. That is a matter left to the Home Office. By defining this in regulations—noble Lords have referred to the draft regulations that have appeared in the memorandum that has been circulated—the Bill will give new clarity to families so that they will know exactly who may be liable to removal. It will also provide further parliamentary oversight that has until now been absent. Following scrutiny of this clause in the House of Commons, and at the request of the right honourable Member Mr David Hanson, my honourable friend Mark Harper, the former Immigration Minister, arranged for a draft of these regulations to be published and a copy is placed in the Libraries of both Houses.

[Lord Rosser]

Perhaps I might ask the Minister a question. The Delegated Powers and Regulatory Reform Committee referred to the Government’s argument that these matters are best placed in regulations because the definition of “family member” or the time limits for removal may change within a limited extent. It commented that this purported justification is undermined by no such change having been needed over a period of very many years during which there have been numerous immigration Acts and a litany of immigration rules changes. Since the Delegated Powers and Regulatory Reform Committee, subject to what the Minister may say, appears to have shot the Government’s arguments to bits, why is the Minister still resisting ensuring that this is done by the affirmative process?

[Lord Taylor of Holbeach]

I think that I have made it clear that the affirmative process is used where there is an opportunity for the Government, in effect, to change policy through a statutory instrument, which then gives rise to a reasonable demand by Parliament for the opportunity to debate the measure. As I have said, we are going to bring forward more explicit changes to the Bill to reflect the concerns shown by the comments of the Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee. It would probably be best if we waited until then to see what they say before we rush to change the procedure by which these matters have been considered in the past. It would be helpful to the House to wait until these changes are produced.

The draft regulations are designed to reflect the immigration rules. If a person can come to UK and be granted leave on the basis of a family relationship with another migrant, it is only right that such a person could be removed along with the lead person who has no leave to be in the UK. The Delegated Powers and Regulatory Reform Committee made recommendations about this clause that I am considering further. I will respond in detail on these recommendations before we consider the matter again on Report. That would be the right time, and I urge noble Lords to wait and see where these considerations lead us.

The noble Lord, Lord Rosser, asked a number of questions. If I do not cover them all now, I will certainly write to him. We will write to address his questions about the timescale of decision-making on removals and the carrying out of those decisions because I understand that this matter is of interest to a number of noble Lords. As to the impact on the number of removals, Clause 1 does not permit new categories of people to be removed; all those who can be removed under the clause can already be removed. It does not extend the powers to remove people but there is currently a more complicated set of procedures than will exist through the measures in the Bill. Clause 1 is about making removals more efficient.

[Lord Rosser]

Is the Minister saying that the provisions in Clause 1 about what the Government would regard as streamlining the procedure are not actually designed with the intention or hope that they will lead to more people who are not entitled to stay here and do not have leave to remain in the United Kingdom leaving the country than at present? Is that not the purpose of these changes?

[Lord Taylor of Holbeach]

No, the purpose of the changes is to make sure that people who are subject to removal leave voluntarily rather than through enforced removal. I am sure that the noble Lord and most noble Lords would agree with that proposal.

We will ensure that family members who have valid leave to remain in the UK in their own right will not be removed. We propose to remove only dependants of persons with no right to be in the UK. Where dependency is broken, such as when it involves a victim of domestic violence, the former dependant is expected to apply for leave to remain in their own right—and, if necessary, they will be removed if they were unsuccessful as a main applicant. We will also look at the best interests of the child in making any decision under our obligations—of which noble Lords are well aware—regarding victims of human trafficking.

This has been a helpful debate. I hope that I have been able to whet noble Lords’ appetite for a government response on this important clause before Report. I can reassure them that family members will always be notified if they are facing enforced removal. The draft regulations underscore this and make it clear how notice is to be given. In the light of those points, I hope that the noble Baroness will agree to withdraw the amendment.

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[Lord Taylor of Holbeach]

I can be certain that when people get a decision about the refusal of their right to remain they will be removed if they do not make arrangements to go voluntarily. That is a step forward. I hope noble Lords will appreciate that much of what the Government are trying to do, including bringing Border Agency activities into the Home Office, is designed to make sure that as we develop better oversight of decision-making within the Home Office and within UKVI we will have a more efficient process in the detail that the most reverend Primate suggested.

[Lord Rosser]

How long will those who have been told that they no longer have leave to remain be given to make arrangements to leave voluntarily and how long will it be before a decision is made that they are not going to leave voluntarily and that enforced removal is required?

[Lord Taylor of Holbeach]

It will be for them to make arrangements with UKVI on the basis of the notice that they have been given. We are not looking for enforcement as being the primary objective of the policy. I think the noble Lord would agree that voluntary departures are what we would prefer to see happen.

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[Lord Northbourne (CB)]

My Lords, I am not entirely sure that this is an appropriate intervention; if not, I apologise and I shall be very brief. I happen to live near Dover. My wife has chaired a considerably large housing association in the area. It received a frantic call one day from the county council, saying, “We simply can’t cope. We’ve got all these unaccompanied minors arriving”. Those children came and it got to know them and so on. The majority of them were absolutely intentionally unaccompanied immigrants. Having been put on a boat in Calais and told to throw their passport into the water as they went across, they came into this country and there was nothing that we could do to change it. Is that situation still the same and, if so, can the Minister perhaps comment on that aspect of it also?

[Lord Rosser]

We welcome the Government’s amendments, which lay down requirements in the Bill in relation to the removal of families with children and also unaccompanied children. We will consider the objectives of the Government’s amendments, which the Minister gave in moving Amendment 3. No doubt we will do so in more detail in response to the questions and points that have been raised today.

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Moved by

[Lord Rosser]

12: Clause 2, page 2, line 35, at end insert—
“(2) The enforcement powers provided for in Schedule 1 are subject to oversight by—
(a) the Chief Inspector of Borders and Immigration,(b) the Independent Police Complaints Commission, and(c) HM Inspector of Prisons.”

[Lord Rosser]

My Lords, Amendment 12 provides for the enforcement powers provided for in Schedule 1 to be subject to oversight by the Chief Inspector of Borders and Immigration, the Independent Police Complaints Commission and Her Majesty’s Inspector of Prisons. The powers introduced by Schedule 1 include escorting and searching detained persons and entering and searching premises. There is also provision for a wider interpretation of the general power to use reasonable force compared with that in previous immigration Acts, and the schedule increases the powers of immigration officers, including with regard to the power to use reasonable force.

This is an important issue, not least in the light of the inquest into death of Jimmy Mubenga in late 2010, following the restraint used as part of his deportation undertaken by a private sector company. In that case, the coroner determined that the cause of Mr Mubenga’s death was an unlawful killing under existing provisions of immigration law. The coroner highlighted several areas of concern, including lack of training in scenario planning in relation to the use of force by private sector companies, dangerous restraint techniques being used at that time and a lack of accreditation of particular officers.

As Schedule 1 now extends the powers regarding the use of reasonable force to previous immigration Acts and gives additional powers to immigration officers on escort, search and entry, we need at the very least some assurances that immigration officials will receive or are now receiving training on the use of restraint and reasonable force that is on a par with that given to police officers. We also need assurances that these increased enforcement powers will be subject to proper oversight, and by whom, and that that oversight will also apply to the private sector. Is it the Government’s intention to issue guidance on how the provisions of Schedule 1 should be enacted, not least the power to use reasonable force, or will it be left to each company and organisation involved to interpret as they see fit how and when to use the considerably enhanced powers that they are being given? Will it be left to each organisation affected to produce its own definition of reasonable force and the circumstances in which it can be used? I hope that that is not the case.

I hope that the Minister will recognise the concerns on this issue, already expressed earlier today, and that, in the light of the discussions that he has had with the noble Lord, Lord Ramsbotham, on a possible code of practice, he will feel able to offer more than a belief—although genuine, I am sure—that everything will be all right on the night. I beg to move.

[The Archbishop of York]

My Lords, Amendment 12 provides what I believe to be a necessary safeguard to reassure the public that those responsible for enforcement are fully accountable. Accountability is at the heart of all of this. This is surely an improvement as it ensures independent oversight by Her Majesty’s Inspector of Prisons, the Independent Police Complaints Commission and the Chief Inspector of Borders and Immigration of enforcement powers, such as searching persons and premises as well as the general power to use reasonable force. If we are confident that such powers are always fairly and humanely exercised, there is nothing to fear from this amendment. If we are not, then this amendment is absolutely necessary.

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[Lord Taylor of Holbeach]

My noble friend Lady Williams of Crosby and the most reverend Primate the Archbishop of York joined the noble Lord, Lord Ramsbotham, in raising the question of the effectiveness of quality control in terms of outcomes, how we enforce contracts, and whether we hold contractors responsible. We do exactly that. We have contract monitoring teams at each detention facility and individual detention and escort contractors are certified by the Secretary of State, and this certification can be withdrawn. As the noble Lord, Lord Ramsbotham, will know, a new training programme is being undertaken by the Home Office in this area. I have invited him to come along and look at the programme and perhaps contribute to its development because we feel it is very important that at the heart of good practice in this area lies oversight on the one hand, good management on the other and, at the bottom of all of that, good training for the operatives. I think it would be the wish of the House and, indeed, the Home Office that that is provided for. My noble friend Lady Benjamin asked if there was particular training given to officers on medical conditions. I am not in a position to give that answer on the spot but I am happy to write to her.

I turn to Amendment 13. We should make it clear that the provision to extend the use of force affects only immigration officers and does not make any change to the powers of contractors, those detainee custody officers and escorts, who have separate statutory powers to use reasonable force in their functions. We believe that immigration officers should be able to use their powers to the fullest extent, where it is necessary. If paragraph 5 were to be removed, it would not affect the majority of immigration powers of examination, arrest, entry, search, detention and fingerprinting, where officers are able to use reasonable force if necessary, as most of these are contained within the Immigration Act 1971 and the Immigration and Asylum Act 1999, as my noble friend Lord Avebury pointed out.

However, there are a small number of coercive powers, which sit in later legislation, where there is no specific reference to the use of reasonable force. Although the use of force is currently implied, we intend that this should be set out explicitly in statute to ensure greater transparency. The use of force in these situations may be necessary for immigration officers to carry out their role effectively and safely, and I have given illustrations of that earlier in my response. I am sure noble Lords will agree that it would be hard to see, for example, how immigration officers could safely arrest a person for the offence of assaulting an immigration officer if they were unable to use reasonable force to restrain that person. It should be noted that the new enforcement powers proposed in the Bill make amendments to either the Immigration Act 1971 or the Immigration and Asylum Act 1999, so will already be covered by the existing provision for immigration officers to use reasonable force where necessary.

I can assure noble Lords that only immigration officers who are fully trained and accredited may use force. Arrest training is currently provided by the College of Policing, and training on the use of force, including control and restraint techniques, is in line with ACPO standards. Published guidance explains that the use of force must be proportionate, lawful, necessary, and age appropriate. It also sets out that force should be used for the shortest possible period, should be the minimum needed, should be used only when all other avenues of securing co-operation have been exhausted, and should be de-escalated as soon as possible.

Every instance where force is used is recorded in a comprehensive incident report. Out of 14,598 enforcement visits in the financial year 2012-13, force against the person was used in a little over 2% of cases. The issue of whether that use of force was reasonable must be justified on a case-by-case basis, as I have been explaining to my noble friend Lord Mawhinney. The extension of the power to use reasonable force will ensure that existing powers are able to be operated effectively, that they are in step with other law enforcement bodies’ powers, and that current enforcement practices are not at any risk of legal challenge on the grounds that the ability to use force is not explicitly set out in statute. Now I hope that I have been able to explain the context in which these provisions of the Bill are being proposed. In the light of these points, I hope that noble Lords will be reassured and feel able not to press their amendments.

[Lord Rosser]

Is the Minister still looking at what I understand is a code of practice—which the noble Lord, Lord Ramsbotham, has discussed with him—or are we to take it that the answer he has just given means that he does not see the need for a code of practice?

[Lord Taylor of Holbeach]

I think I can reassure the noble Lord, Lord Rosser, by the actions I took following the meeting that I had with the noble Lord, Lord Ramsbotham. He gave me a copy of the code of practice that he had produced following his review and I was pleased to take it back to the Home Office and feed it into the department. I would like to believe that the points that the noble Lord, Lord Ramsbotham, has made are being reflected in the approach that the Home Office is taking at the moment. There is naturally great interest in what he is suggesting. As I said, we are looking forward to the opportunity to allow him engagement with us on the development of the training programme.

[Lord Rosser]

I am not entirely sure whether that means the code of practice will see the light of day in any schedule to the Bill or whether it simply—I do not use the word “simply” in a derogatory way—means that the Minister intends that the Home Office may take account of what is in that code of practice in the practices that the Home Office seeks to ensure are adopted. I think the answer I have had is the latter rather than the former. That is what the Minister’s response indicates. As I understand it, the Minister said in his reply that the oversight powers throughout the United Kingdom are already there through the relevant postholder or commission. I think he has said that the extension of powers under Schedule 1 apply only to immigration officers and not to private contractors, and that appropriate training is or will be given in relation to the extension of the powers on reasonable force. That is what I have understood from the replies the Minister has given.

I shall obviously want to read in Hansard the words the Minister has actually used since it is easy to gain an impression when it is not the correct one. However, I thank him for his detailed response and, if noble Lords will forgive me for not naming them all, I thank them for taking part in the debate on these amendments. I was particularly impressed by the noble Baroness, Lady Williams of Crosby, who indicated that my amendment should have gone further than it did. I am not often told that, but there we are. I have to say that the points she made were extremely relevant. In the light of what the Minister has said, and on the basis that I intend to read his words carefully in Hansard to make sure that I have understood them fully, I beg leave to withdraw the amendment.

[Lord Roberts of Llandudno]

Before my noble friend the Minister sits down, can he tell me how many employees of these companies have been dismissed for this sort of heavy-handed behaviour?

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Debate on whether Clause 5 should stand part of the Bill.

[Lord Rosser]

Clause 5 amends Schedule 2 to the Immigration Act 1971 to include persons who are “liable to be detained” as being persons in respect of whom steps can be taken for the purposes of identification, such as fingerprinting and photographing. We put down this question on whether the clause should stand part and Amendments 22 and 25 to raise some questions about how this clause will be implemented and why it is considered necessary, not because we are opposed to the use of biometric information or its provision by various people.

It would be helpful if the Minister could indicate what individuals, circumstances or situations would be covered by the words “liable to be detained” that are not currently covered by the existing legislation, including the Immigration Act 1971. It is perfectly reasonable to verify the identity of someone who is detained. The law provides for that to enable us to address the issue of, for example, dealing with people suspected of being in this country illegally. In that situation, the immigration officer can, for example, check the person’s fingerprints either with that person’s consent or following their arrest.

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[Baroness Hamwee]

My Lords, with regard to Amendment 23, the Minister is of course right that there is a reference further on in the new subsection that refers back to what I was seeking to take out, so my amendment is not complete. However, by mentioning that, he has drawn my attention to something else that I would like to pursue. New subsection (1B) says that an order under paragraph (b), which is about other information subject to an order by the Secretary of State,

“may specify only information that can be obtained or recorded by … external examination”.

That raises the question of whether only external examination can be used for new subsection (1A)(a), concerning,

“information about a person’s external physical characteristics”.

Perhaps he can confirm that there can be only an external examination to obtain information about the first limb in (1A).

The Minister talked about new technology, which I assume comes within the word “information”. My concern was to understand what physical characteristics there might be that were not included in (1A)(a). I accept that technology will advance, but it is what the technology is being used to identify and gain information on that concerns me. This may sound tedious but it is actually quite important. I do not know whether he is able to take the matter any further tonight; if not, I would be glad to pursue it after this stage.

[Lord Rosser]

Perhaps I could add one or two comments. I thank the Minister for his reply and for the amount of information contained in it. I think that I recall him saying that “liable to be detained” was not a new phrase, but I am not sure how extensively it has been used before in immigration law.

I listened carefully to what he had to say about the situation of those whom immigration officers would not want to arrest. I will read his response carefully in Hansard, but at the moment I am not entirely clear what happens when someone whom they do not want to arrest declines to enable their fingerprints to be checked. I am not sure whether they will just be allowed to go or if in fact they will be arrested, which raises the question of why the existing powers are not adequate and why this new terminology is needed. As I say, I will read very carefully what he had to say.

Finally, I asked how many cases there have been in the past 12 months of people who would have had their fingerprints taken and checked if the “liable to be detained” provision in the Bill had been in force who could not have their fingerprints taken under the current wording in the Immigration Act 1971. I was not particularly expecting the Minister to come up with an instant response, but since that calculation is presumably the justification, at least in part, for this change in legislation that we are considering, I hope he will be able to provide me with an answer to that question later on.

[Earl Attlee]

My Lords, the main justification for Clause 5 is to avoid unnecessarily arresting people and to make it easier to carry out immigration checks. I described a situation where someone cannot speak English or pretends not to speak English. The noble Lord, Lord Rosser, asked what the definition of “liable to be detained” is and how many cases it will affect. If I have any information about how many cases, I will write to him. A person is liable to be detained if there are reasonable grounds for suspecting that removal directions may be given—that is, that the person requires leave to enter or remain but does not have it.

The noble Lord, Lord Rosser, also asked whether a person who refuses to give their prints can be arrested. They cannot be arrested solely for refusing to give fingerprints, as they can be taken only by consent. This may not give enough reasonable suspicion that a person may be an immigration offender.

The noble Baroness, Lady Hamwee, asked about the external examination. The whole point of these provisions is that the checks can be external examinations only.

[Lord Rosser]

Presumably immigration officers would not want to check a person’s fingerprints unless they had some suspicions in the first place or some doubts.

[Earl Attlee]

My Lords, they would not be able to check fingerprints unless they had some good reason to do so.

[Lord Rosser]

I thought the Minister said that you cannot arrest someone who refuses unless there is some suspicion. To do the check in the first place must mean that you have some suspicion and, therefore, if they refuse, you could arrest them.

[Earl Attlee]

My Lords, there would indeed be an element of suspicion if someone declined to give their fingerprints to be checked, but I suspect there would have to be other evidence as well. I will write to noble Lords to clarify these points.

Counterterrorism Practices

Lord Rosser Excerpts

Thursday 27th February 2014 Grand Committee

[Lord Rosser (Lab)]

My Lords, I thank the noble Lord, Lord Hylton, for giving us this opportunity to debate a matter of real concern and import to the citizens of this country. The subject matter of the debate is the Government’s assessment of the effectiveness of counterterrorism practices. I want to refer in that context to the recent developments in Syria.

Terrorism is not just a major issue for the United Kingdom; it is a global threat. As I understand it, in 2011 more than 10,000 terrorist attacks occurred in around 70 countries, resulting in almost 45,000 casualties and more than 12,500 fatalities. About three-quarters of those attacks occurred in the Near East and south Asia, but in 2011 attacks in Africa and the western hemisphere were at a five-year high. The figures indicate that in the 12 months to 30 September 2012—I am not sure if there are any more recent figures—there were 245 terrorism-related arrests in Great Britain; 45 people were charged with terrorism-related offences and 18 convicted, with a further 25 people awaiting trial. At the end of 2012, 122 people were in prison in Great Britain for terrorist, extremist or terrorism-related offences, including those on remand. As the noble Lord, Lord Ahmed, has already mentioned, the sentencing in a case yesterday reminded us of the brutality and savagery that can be involved in such offences in our own backyard in broad daylight. The value and importance of the work that our police and security services do to protect us cannot be overestimated.

In their last annual report on the UK’s strategy for countering terrorism, the Government stated that there were now hundreds of foreign fighters from Europe in Syria and that, as and when UK residents return here, there is a risk that they may carry out attacks using what were described in the report as the skills that they have developed overseas. The most recent annual report of the Intelligence and Security Committee of this Parliament also referred to the increasing potential for those who travel overseas to train and fight alongside one of the al-Qaeda affiliate groups to subsequently return to the UK and pose a direct threat to the UK’s national security. The report went on to say that what was most significant in this regard was the growing trend for UK resident extremists to join elements of the opposition in Syria, and that this was likely to form part of the terrorist threat picture for years to come. The report said that the shape of the terrorist threat was potentially changing from what it described as tightly organised cells to looser networks of small groups and individuals who operate more independently, and that it was essential that the agencies continued to make a clear assessment of this evolving picture in order to keep ahead of the threat.

We have had a much more recent update on the position, with the head of the Office for Security and Counter-Terrorism being reported in the media as saying that the biggest challenge now facing the police and intelligence agencies was the size of extremist groups in Syria and the number of Britons joining them. He was reported as having gone on to say that the number of foreign fighters in Syria was higher than anywhere since Afghanistan in 1989, and that Syria was different from any other counterterrorism challenge that this country had faced since 9/11 because of the number of terrorist groups now engaged in the fighting; their size and scale; the number of people from this country who are joining them; the ease of travel; the availability of weapons; and the intensity of the conflict. Statements along very similar lines have also been made recently by the head of Scotland Yard’s counterterrorism unit.

There have been suggestions—I stress that that is all they are—that there may now be new laws being considered by the Government. That would of course be an interesting development; the Government have hardly strengthened our ability to keep a check on the potentially most dangerous people, since the Government’s own terrorism prevention and investigation measures, which placed the most menacing terror suspects under special, albeit watered down, restrictions were, I assume—subject to the Minister telling me otherwise—brought to an end, as intended, a month or so ago.

The independent reviewer of terrorism legislation has confirmed that those who were the subject of terrorism prevention and investigation measures and their special restrictions were considered the most dangerous threats even by the standards of international terrorism. In relation to one who absconded, the Secretary of State simply tried to assert that the only reason why that individual had been made subject to a TPIM was to prevent them travelling to support terrorism overseas. In the light of the recent warnings about Syria, that suggests that if that really is the Government’s criterion, rather more people should be being placed on TPIMs instead of allowing the measures to lapse after two years with the consequences that we now see. It would certainly be helpful if the Minister could indicate what the additional cost has been, in terms of extra surveillance, of watering down the previous control orders and replacing them with TPIMs, and what is now the additional cost of surveillance of those who, I assume, were until a month or so ago subject to a TPIM and its associated restrictions, but are no longer so even though there has presumably been no change in the assessment of the serious threat that they represent to national security.

Perhaps the Minister could also say if the Government are indeed considering new laws. Are the Government considering activating the Enhanced Terrorism Prevention and Investigation Measures Bill, which, in essence, reinstates control orders? Is Clause 60 of the Immigration Bill, on deprivation of citizenship, the Government’s response? A number of steps were initiated following the work of the task force set up by the Prime Minister on tackling radicalisation and extremism. What is the position now in regard to the implementation of those steps, and what consideration is being given to any further steps that may be needed in the light of very recent concerns that have been expressed, particularly in relation to the potential implications for us of the situation in Syria?

We all have a common interest in national security and in protecting the citizens of this country from acts of terrorism. We need to have the ability to take proportionate, strong and firm action quickly and decisively, within the law, against those individuals who constitute a real threat. Equally, though, the approaches that we adopt and the actions that we take need to give at least as much attention to strengthening the hand of those who work hard to persuade predominantly young men and women to ignore the siren voices of those who may seek to encourage them to go down the road of violence and hatred, and instead to reject that route.

I hope that the Minister will be able to say what the Government's response is to the very recent concerns that have been expressed about the potential consequences of the situation in Syria, and apart from—of course—continuing to try and get negotiations to resolve matters under way, what further actions if any the Government now intend to take in respect of counterterrorism practices.

Immigration Bill

Lord Rosser Excerpts

Monday 10th February 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, we have had a lengthy, interesting and, at times, passionate debate. Some noble Lords have addressed the general approach to immigration and the overall thrust of the measures contained in the Bill. Other contributions have homed in on the implications of specific clauses and proposals, such as limiting the right of appeal for First-tier Tribunal cases when the real problem that needs addressing is the number of decisions appealed that are determined as being wrong.

Among other areas of concern regularly referred to this evening have been the impact of the proposals on international students, undocumented migrant children and landlords and prospective tenants. However, in the comments at the beginning of the debate, my noble friend Lady Smith of Basildon pointed out that it is equally relevant in this debate to talk about what is not in the Bill.

Before moving on any further, it is worth pointing out that the Bill has not been subject to the most thorough of consultation processes. Prior to the Bill, there was no draft Bill, Green Paper or White Paper. The Bill also appeared to be delayed in the other place for reasons which may have had more to do with internal issues within the larger party in the coalition than any other factor.

Then, 24 hours before the four-and-a-half-hour debate that was Report stage in the other place, followed immediately by a very brief Third Reading, the Government published a major new clause on deprivation of citizenship for conduct seriously prejudicial to vital interests of the United Kingdom. This left little or no time for the Government’s proposed new clause, giving a significant power to the Secretary of State, to be considered in detail, including, for example, what would happen to people made stateless—my noble friend Lady Kennedy of The Shaws referred to this—and why there was no provision for judicial oversight. These were hardly the actions of a Government keen on providing the appropriate opportunities for scrutiny of their proposals by Parliament.

We also had the spectacle on Report in the other place of the Home Secretary’s speaking against one of her own Back-Bencher’s amendments, on deporting foreign criminals, to her own Immigration Bill. Having said that the amendment would be incompatible with the European Convention on Human Rights, and would significantly undermine the United Kingdom’s ability to deport foreign criminals, the Home Secretary then failed to vote against it.

Finally, this weekend we heard that the Minister for Immigration, who proved himself not to be the greatest admirer of this House during the controversy on House of Lords reform, had resigned, since it appeared he had employed someone who was an illegal immigrant. This happened after the Government have repeatedly said that there will be no real difficulties for landlords in carrying out the new requirements in this Bill to ensure they are not renting accommodation to illegal immigrants. If a Minister for Immigration can get it wrong, there must now be even bigger question marks over the practicality of at least some of the proposals in this Bill and over the actual impact they will have on immigration in contrast to the headlines when they are first put forward.

My noble friend Lady Smith of Basildon made clear earlier our agreement that immigration needed to be properly and effectively managed, our agreement that we need to tackle illegal immigration and our agreement that we need to ensure that, when appropriate, foreign criminals are deported. On these important points, however, the Government have been wholehearted in their rhetoric and half-hearted in their actions. The infamous van and its advert, to which some noble Lords have referred, sums up this Government’s approach. Border and immigration staff have been reduced, the number of illegal immigrants deported has fallen and the number of businesses fined for using illegal workers has almost halved between 2009 and 2012. The Bill is silent on remedying the causes of these failures by the Government.

How much better it would have been for community relations in this country and for the whole tenor of the debate on immigration if the Government’s action had been wholehearted and the Government’s rhetoric half-hearted rather than the other way round. What is needed is a reasoned debate about making sure that immigration delivers positively for our country. That includes having appropriate measures to control immigration, tackling illegal immigration and abuses of the system, having an overall approach to addressing the impact of immigration on people’s lives—to give two examples, in the labour market and the housing market—but also recognising the benefits that immigration has brought to our country. That will not be achieved through legislation that was not properly scrutinised in the Commons and through legislation whose passage appears to be geared, as far as the Government are concerned, to deadlines related to elections in the middle of this year, if not beyond.

The Government have said they are going to reduce net migration to the tens of thousands by May 2015. The objective is presumably 99,999, even if that means its being secured at the cost, to our country, of people leaving whom we should want to stay and highly qualified people, including university students, whom it would be in our interests to attract, not coming to this country. Can the Minister tell us whether the Government are on track to meet their declared policy objective within the timescale laid down and what contribution the Bill is expected to make, if any, towards meeting the Government’s target on net migration and over what timescale?

Much of the Bill relates to illegal immigration, which is not covered by the Government’s “tens of thousands” objective. The Bill seeks to transfer some responsibility for controlling illegal immigration to specific groups of citizens of this country and, by implication, away from the Government. It does not, however, address the issue of exploitation and abuse of immigrants which, for so long as it is allowed to continue, contributes to the level of illegal immigration. Although we share the Government’s objective of wanting properly controlled and managed immigration, it does not let them off the hook of having to make the case for each one of their proposals in the Bill.

Making the case means providing hard evidence on the extent and nature of the problem or issue that the Government are seeking to address; providing hard evidence that the practical implications and feasibility of what is proposed have been thought through; and providing hard evidence that the claimed impact of what is proposed on the problem or issue that the Government are seeking to address is also a realistic expectation. For a start, the Government’s own impact assessment states, without any caveats, that the Bill,

“will make a significant contribution to reducing illegal immigration”.

That could be the case but I hope that the Minister will be able to provide the hard evidence and figures on which that statement is based, including telling us by how much the proposals in the Bill will reduce illegal immigration.

It will also help detailed consideration of the Bill if the Minister could indicate which of the measures proposed in it the Government consider will make the biggest contributions towards reducing illegal immigration or impacting on the net migration figure. It is only right that we should have that information because concerns have been raised about some specific proposals in the Bill and, in some cases, the potential unintended consequences on law-abiding British citizens, legal visitors and visa holders who contribute positively to our country. People need to be in a position to make their own judgment on whether the evidence on the changes that the proposals will actually deliver justifies the risk of any associated unintended consequences if these cannot be addressed. What will not help would be if it becomes clear that there are proposals in the Bill that are here for show rather than effectiveness.

One proposal on which there has been some comment is that defining public interest in relation to Article 8 of the European Convention on Human Rights when considering immigration cases. The Bill seeks to put on the statute book the terms of the most recent Immigration Rules. It is moving guidance or rules into law passed by Parliament, with a view to tying down how the judiciary interprets the public interest and the weight that should be attached to it in immigration cases. That is a significant development and the Minister set out the reasons for the Government going down this road in introducing the Bill. We have a whole raft of guidelines on sentencing across a range of offences and on the weight that should be attached to different factors. It would be helpful to know whether the way that the courts are interpreting other guidelines or rules is also a cause of concern to the Government and, if so, whether they are considering enshrining any of those in statute.

Coming back to the reasons for the Government including Clause 14, can the Minister give some indication of the number of judgments since the revised Immigration Rules came into effect which the Government have felt did not properly reflect the terms of those rules, in respect of what the public interest requires and the weight that should be attached to it? What number of judgments have there been which the Government feel have reflected the terms of those rules? Can the Minister also indicate what the Government anticipate will be the effect of passing Clause 14 into law on the number of people coming into and leaving this country in a calendar year?

Finally in respect of Clause 14, can the Minister spell out the evidence the Government are relying on to insert, as a statement of fact, its wording that,

“persons who seek to enter or remain in the United Kingdom”,

and who are able to speak English,

“are less of a burden on taxpayers”,

than—one assumes, although the Bill does not say it—those who cannot speak English and who are seeking to enter or remain in the United Kingdom? I am not saying that the proposed wording is factually incorrect but if such wording is to be enshrined in the law of the land, the Government ought to be clear about the hard evidence on which it is based and place it on the record.

In his introductory speech, the Minister spoke about policies and proposals in the Bill striking the right balance, and the Bill not making the United Kingdom less attractive to legal migrants. From the speeches today it is clear that most of your Lordships do not share this somewhat idyllic view of the Bill as currently worded. However, one opinion expressed by the Minister that will not be disputed is that over the coming weeks, as he said, this House will give this Bill the serious scrutiny that it now demands and needs.

Anti-social Behaviour, Crime and Policing Bill

Lord Rosser Excerpts

Monday 20th January 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, my noble friend Lord Harris of Haringey raised this issue in Committee, when he said that his amendment was to try to get clarity as to why the Government were seeking to make this change and to do something which was potentially so retrograde. My noble friends Lord Harris of Haringey and Lady Smith of Basildon both gave specific figures on the savings and reductions in burglary offences that had accrued, or were expected to accrue, when appropriate security devices are installed where new developments have been informed by, or have adopted, the principles of Secured by Design. My noble friend Lord Harris repeated some of those statistics today.

In his response, the Minister said that a consultation under the auspices of the Department for Communities and Local Government had taken place, which concluded, if memory serves me right, on 27 October last year, and that the Government were considering their response. The consultation document from the DCLG suggested a two-tier standard of security: a basic minimum level that would be generally required and a so-called enhanced standard. However, as has already been said, even the “enhanced” standard would be lower than the existing Secured by Design standards, and even then it could be required by local authorities only where what is described as a “compelling” case exists for the higher standard to be the norm.

In Committee—perhaps it will be different today—the Minister was unable to say whether we would know the outcome of the consultation by the time the Bill reached Report or Third Reading. Neither was he able to say why local authorities would not even be able to go to the higher, so-called enhanced standard or give an assurance that local authorities would be able to choose their standard, and not be obliged to follow either the basic or “enhanced” standard. Nor was he able to say that the Government would provide an opportunity for Parliament to intervene before any changes in the standards are made.

As my noble friend Lord Harris has said, the Secured by Design initiative is about reducing the incidence of crime. The Government’s proposals, which have been the subject of consultation, appear to go in the opposite direction. We have heard no convincing arguments from the Minister as to why there should be a change and nothing from him to indicate that the Government’s proposals are in any way evidence-based, particularly when it comes to the impact on the level of burglaries. We will certainly support this amendment if it is put to a vote.

[The Earl of Lytton (CB)]

My Lords, before the noble Lord sits down, would he not agree with me that the amendment would confer a particular status on Secured by Design or whatever body or organisation is in its lieu and that to do so in this particular context would create a quite curious structure? It is almost like an organisation that is operating on a statutory basis.

Secondly, would the noble Lord not agree with me that the police, knowledgeable though they are, are not the sole providers of intelligence on designing out criminal activity? There are many other bodies and professions which might legitimately be considered for this—the British Standards Institution would be one.

Thirdly, would the noble Lord not agree with me that the fact that there may be shortcomings in the specification of security, equipment and methodologies is not necessarily a reason for conferring a monopoly of this sort on this particular body?

[Lord Rosser]

I simply ask the noble Earl if he would agree with me that what is being proposed appears to put in jeopardy an arrangement, guidelines, and standards—Secured by Design—that on the basis of the figures we have heard, have had a considerable positive impact on the level of burglaries. It appears to me that the noble Earl is prepared to go along with a change that appears to put in jeopardy real progress that has been made through this initiative in bringing down the level of burglaries. That is a question that he should be asking himself rather than the questions that he has chosen to ask me.

[The Earl of Lytton]

My Lords, I am a victim of burglary myself, so I understand what it is about. It seems to me odd that the noble Lord feels that the proposals in the amendment are the unique and sole means of achieving what is required. With all the product availability and consultancy that there is, I do not believe that it is necessarily the case. I am particularly not sure that it is right that such an organisation should be given a statutory status and elevated position. It is, after all, a commercial operation. Would the noble Lord not agree with that?

[Lord Rosser]

I am not sure that the noble Earl and I should be having too lengthy a dialogue on this matter. I am not sure whether I got a very clear answer from him as to whether he accepted that what the Government are proposing may well put in jeopardy a very successful initiative, which over a period of years has had a very positive impact on the level of burglaries.

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

My Lords, with this amendment, the noble Lord, Lord Harris, has brought back the issue of the important role that design has to play in preventing crime and anti-social behaviour. It is important to stress that the Government recognise the importance of design in crime prevention. Nothing in the current proposals is designed to weaken that. I hope that the noble Baroness, Lady Howarth of Breckland, will accept that.

Before I respond in detail to the noble Lord’s amendment, I should like to emphasise that the housing standards review, which is the project under consultation at the moment and at the centre of the noble Lord’s concerns, was not initiated to cut standards irrespective of impact or to agree to a lowest common denominator approach. I cannot emphasise that enough. Its clear objective was to review a number of the voluntary standards—there are a number of voluntary standards—most frequently called up by local authorities. The aim was to identify opportunities for simplification, clarification and, if appropriate, those standards that are so important that they justify inclusion in a possible national standard or building regulations, which is a situation that may not always exist at present.

We are entirely supportive of the police continuing to advise local planning authorities on the layout of new development. We are all, I think, also in agreement that it is important to ensure that the police can continue to contribute their intelligence on crime to the development and implementation of standards. There will be no diminution of the role of the police in that respect. The new clause that the noble Lord proposes would place a mandatory duty on a body representing chief officers of police to publish guidelines on designing out crime that local planning authorities may then require builders to follow as a condition of granting planning permission.

As the noble Lord will be aware, the Government have spent considerable time tidying up the policing landscape to create a set of bodies with a clearly defined purpose. The Association of Chief Police Officers fulfilled an important role as the professional voice of the police service for many years, but as policing is changing, so too must ACPO. Many former functions of ACPO have transferred to the College of Policing and, in the light of the Association of Police and Crime Commissioners’ review of ACPO, there will be further consideration of the future delivery of some additional national functions. I am not persuaded that it would be right to pre-empt those considerations by designating a new or existing body, as the noble Lord is proposing today.

Many different expert groups have a role to play in the design, building and construction of the places where we live and work. Although I recognise that the noble Lord’s intention is to ensure that guidelines are drawn up in an open and transparent way in discussion with experts, I believe it should be left to the police and others to decide on the most appropriate groups to consult according to subject area. As a matter of good design, technical building standards and standards for the design and layout of the wider built environment are often considered together. That is indeed the approach taken by Secured by Design. However, in regulatory terms, the former are the domain of building regulations while the latter are matters for planning. Of course, the role of planning and building regulations needs to be understood in the broader context of crime overall, and on that matter I should like to offer some points of clarification.

When last we discussed these matters, the noble Lord set out a range of figures to exemplify the importance of security standards in new homes. While I have no wish to extend the debate unnecessarily as these figures have become a matter of public record, I think it is only right that we ensure that they are placed in context. The noble Lord, Lord Harris, suggested that if appropriate measures were installed some 700,000 burglaries could be prevented each year saving nearly £2 billion. According to the latest crime survey estimates, not only is this more than the total number of burglaries in England and Wales in 2012-13, it reflects burglaries in both old and new housing. The housing standards review sets out standards only for new development, not existing homes. Furthermore, the housing standards review does not propose stopping bodies such as Secured by Design bringing their own standards to the market for developers to use on a voluntary basis.

In relation to the question asked by my noble friend Lady Hamwee, local authorities are currently able to impose requirements on new development in relation to security, including adopting the principles of standards such as Secured by Design. Such standards may be delivered as a condition of planning permission, provided that the condition is necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in other respects—in other words, fitting the considerations that planning permission requires.

--- Later in debate ---

[Baroness Berridge (Con)]

My Lords, I, too, support the amendment. Just hearing the outline of the different authorities involved when there are issues with protests outside the front of Parliament leads me to the view that without this amendment, enforcement has not perhaps been as easy as it could be. I take into account that Westminster Cathedral does not have this issue, merely by virtue of the fact that the Abbey and St Margaret’s are positioned outside Parliament.

We have done much hard work to ensure that the work of the House of Commons is not disturbed; we should afford the same privileges to the Abbey and St Margaret’s, which are in this unique position. Perhaps most persuasively, it is not just that there is worship there and wedding services. I am aware of this because I often cut through the Abbey’s yard. The young people being educated there and the people living there are, I am sure, also disturbed by the protests. This is a reasonable accommodation of the right to protest and the freedom of worship, while allowing people in their residential and educational roles to be uninhibited. I will be supporting the amendment.

[Lord Rosser]

The Minister has reminded us that when a very similar amendment was considered in Committee he, as the Minister, said that the issue was how the existing by-laws were enforced rather than that the existing powers were inadequate. It was in that context that he proposed holding the meeting to which he referred, and which has now been held. It would be of some interest if the Minister were in a position to tell us, in the light of that meeting, why on the face of it Westminster City Council and the police were not able to enforce the powers that he said were already there and were adequate to deal with the situation that we are addressing.

Presumably, Westminster City Council must have had something to say on that, as did the police, since they were present at the meeting which the Minister held. He said in Committee that he needed to satisfy himself that the existing provisions were not being enforced by the council and the police, so it would be helpful to know what those two bodies had to say when they were asked why the existing provisions were not being enforced.

I appreciate that the Minister has said that there are different penalties. He referred to penalties of £5,000 against the £500, I think, under the powers for Westminster City Council, and to differences over no pre-notification for noise. That does not fully explain why the existing by-laws were apparently not being enforced. It would be helpful if the Minister could comment on that.

Since the Minister said that it is his intention to leave it to the House, I would make just one other point. The Minister said in Committee—I use his own words—that we need to be,

“very careful about taking any action that may impact disproportionately on people’s right to protest and their freedom of speech”.—[Official Report, 25/11/13; col. 1215.]

How is the Minister satisfied that we are being careful about not taking any such action, since I assume that that matter will have been discussed at the meeting which was held and to which he referred?

[Lord Taylor of Holbeach]

I thank the noble Lord, Lord Rosser, for his general support for the steps that we have taken to try to resolve this issue. As I said, it is a matter for the House. The interests of those demonstrating are, I believe, best served by the facility of pre-booking a demonstration based on availability, which this protocol will provide for. It is not essential and there is no attempt to say that this will be the only way in which people can demonstrate. There is no imposition on people demonstrating, other than that they obey the requirements of the by-laws in respect of the noise made through amplified sound. This provision is made explicit by my noble friend Lord Deben’s amendment. Throughout, the right to demonstrate and to assemble has been seen as a key feature of what we consider to be proper here at this end of Parliament, as it is in respect of Parliament Square.

The noble Lord, Lord Rosser, also asked why the enforcement of noise by-laws has not been effective. The one thing which came out of our first, extremely productive, general meeting with everybody present was that people were in effect operating in their own little silos. If I explain that responsibility for the George V statue and the paved area in front of it lies with Westminster City Council while responsibility for the green part beyond it lies with the Royal Parks, your Lordships might understand that co-ordinating action was also difficult.

It was quite clear, too, that the police did not realise that one of the most frustrating elements was that those police serving the Palace’s interests were not engaged in any enforcement of noise requirements in respect of the area that we are talking about. The police recognised that while they had had a strong focus on provisions in Parliament Square, this area had not been considered by them to be an important priority.

The noble Lord, Lord Deben, was able through tabling his amendment at Committee to bring this to the attention not only of this House but also of the police and other authorities. As a result of that, the protocol, which I am certainly reassured will be an effective mechanism, provides an opportunity for safeguarding democratic rights and, at the same time, ensuring that enforcement can in fact occur. So I hope the noble Lord is satisfied.

--- Later in debate ---

In conclusion, I shall be very interested to hear what the Minister says in his response. Perhaps we should meet about this before the next stage, or just reflect on it. I hope that he has taken into account some of the comments that I have made, particularly on the advanced stop line, which is a real safety issue. It could go wrong or it could be a great success. I beg to move.

[Lord Rosser]

The amendments proposed by my noble friend Lord Berkeley, which he says are probing amendments, seek to extend the powers available for designation to PCSOs. We debated the issue of the powers of PCSOs in Committee in the light of a government amendment extending their powers. It is hardly a surprise that we now have an amendment which, on the face of it, wants to go further.

In his response to the debate in Committee on 11 December, the Minister said that it was,

“right that the chief officers should have the freedom to take account of local circumstances and priorities when determining how their PCSOs are deployed”.—[Official Report, 11/12/13; col. 822.]

He also referred to a police and crime commissioner who had indicated a desire to see PCSOs tackling traffic offences. If the Minister accepts that my noble friend’s amendments on PCSOs’ powers go beyond those proposed in the Government’s amendments, agreed on 11 December 2013, but is not going to accept my noble friend’s amendments, can he say why, before Christmas, on 11 December 2013, he felt it right that the chief officers should have the freedom to take account of local circumstances and priorities when determining how their PCSOs are deployed but on 20 January, after Christmas, he does not?

[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord, Lord Berkeley, for his amendments. I suppose there was a general answer when he was talking about dotted lines and straight lines. I was told from a very young age that whenever you crossed the line, it was not the right thing to do. That is something all should keep in perspective when looking at these issues. The noble Lord spoke to the subject in his amendments with a great deal of expertise and insight. I fully acknowledge his work as president of the Road Danger Reduction Forum and as vice-president of the Cycling Touring Club.

The noble Lord’s Amendment 94D would mandate that all PCSOs must undergo a cycle training course before a chief constable designates cycle-related powers. We recognise that, as a result of these changes, additional training will be required to ensure PCSOs have the right knowledge, skills and expertise to exercise these powers. We do not agree that this should be mandated specifically by Whitehall, but we are confident that the police and the College of Policing are best placed to deliver this. I will bring this to their attention. The noble Lord was speaking with insight and I am quite happy to facilitate a meeting with the Roads Minister to see how we could talk about these subjects in terms of their wider application. I think he would agree, from his personal experience as a cyclist—and an avid cyclist at that—that across Britain and in our cities as well we are going through an evolutionary change on cycling. There is a ready acceptance now that cycling is something that is to be encouraged as part of the transport mix. When you go to cities such as Cambridge, for example, you actually see how it operates more effectively than in other parts of Britain. We need to share good practice across the country.

I now turn to Amendment 94C regarding the updating of regulations. The Department for Transport has consulted on the simplification of the current regulations with groups including the police. Revising these will form part of their ongoing work on the red tape challenge. Granting PCSOs the power to enforce regulations on cycling without lights will have a real impact on improving the visibility of cyclists and will help prevent road traffic accidents. The noble Lord acknowledged this himself in speaking to his amendments. That is why we believe that delaying the introduction of this power until after the regulations are updated would not achieve our objective of improving the safety of cyclists and other road users as quickly as we want to. His point about the pedals on cycles is well made. I remember years ago passing the cycling proficiency test and there were certain things which were “dos” and “don’ts”. He is correct in saying that many cycles now in Britain do not have reflectors and there is a need for those regulations to be updated. His point of raising these issues with manufacturers is also well made and noted.

Amendments 94A and 94B seek to grant PCSOs the power to issue motorists with a fixed-penalty notice for failing to comply with traffic directions and for failing to comply with advance stop sign regulations. We recognise that PCSOs have a key part to play in tackling issues around road safety and have consulted with the police and other key stakeholders on this matter as part of our ongoing work to explore the development of the role and powers of PCSOs. I am grateful to the noble Lord for suggesting these further enhancements to PCSO powers and I will certainly take his suggestions away to consider them as part of the wider work on reviewing PCSO powers that is already taking place. However, we want to understand fully the implications for PCSOs, the police and the public and until we have completed that further work I think it would be premature to make these changes at this time. I am aware that there is some concern that our proposals will result in cyclists being picked on by PCSOs. Let me assure the noble Lord that that is clearly not our intention. The powers in the Bill are not new, as a police officer can already exercise them. Just as police officers use their discretion, we expect that PCSOs will also do so.

Perhaps I may pick up on a couple of points made by the noble Lord, Lord Rosser. Of course, the extension of these new powers is very much in the hands of the chief constable. PCSOs have 20 standard powers and another 22 discretionary powers. These changes bring a further 19 discretionary powers. It is really down to the chief constable to make the decision from an operational perspective as to what powers should be extended to PCSOs. We believe that is the right thing to do. We know that the public really value the role PCSOs play in tackling low-level crime and anti-social behaviour and we believe that this package of measures will ensure that they can continue to play a key part in providing the best service to the communities they serve. Given these reasons and, I hope, the assurances I have given to the noble Lord that we will continue to consider the points he has raised and the powers available to PCSOs, I hope the noble Lord will feel able to withdraw his amendment.

Anti-social Behaviour, Crime and Policing Bill

Lord Rosser Excerpts

Tuesday 14th January 2014 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to repeat a point I made briefly at Second Reading, following up on the point made by the noble Baroness, Lady Hamwee, about Wandsworth Borough Council. I, too, checked with serving councillors regarding what happened subsequent to the 2011 riots. It is my information that the council did not pursue the repossession of its property. Although it had the powers, the council decided that it was not in its interest or that of the tenants to pursue the matter. Therefore, I agree with the points that have been made by the noble Lord, Lord Paddick. One has to question the motivations of the Government for pursuing this legislative change when a council which sees itself as a flagship of the Conservative Party has not pursued the avenues that were open to it.

[Lord Rosser (Lab)]

The noble Baroness, Lady O’Loan, and my noble friend Lady Lister of Burtersett, have already made a strong case for deleting Clause 91. The Government, of course, have put down amendments that make some changes to that clause, but do not address the basic objections, which have also been expressed for a second time by the Joint Committee on Human Rights, about the disproportionate impact of eviction on other members of the household who have not engaged in such riot-related behaviour. The Joint Committee on Human Rights was not moved by the references to judicial discretion, so clearly it did not rate very highly in its thinking as a safeguard. The Joint Committee also expressed the view that it was the job of criminal law, not civil law, to deter riot-related offences, and to administer sanctions when such offences were committed. As has been said, courts when sentencing, quite rightly, already take a much more serious view of offences committed as part of a riot, and under cover of a riot, as was shown by the sentences given to those convicted following the riots in 2011. Many people were sent straight to prison when they probably would not have been given such a sentence if the offence had not been committed in association with the riots.

Clause 91 does not just relate to offences in the locality in which the offender lives, but covers such offences anywhere in the United Kingdom. It is clearly seen as an additional punishment by the Government, and it is not related to the experience of victims in the locality in which the offender lives. The Government are seeking to make some amendments so that Clause 91 would not apply where under-18s are convicted of a riot-related offence or in respect of the most minor offences. However, that still means that, since Clause 91 relates to repossession where a person residing in the dwelling house has been convicted of a riot-related offence, the penalty of eviction affects everybody else in the house. People who are guilty of no crime, such as pensioners with a son or daughter living at home, or children whose older brother or sister, aged 18 or over, has been convicted, are the innocent victims of Clause 91.

It will certainly act as a deterrent to a member of a household reporting another member of the household to the police for rioting if they know that the effect of such action, which surely we should encourage not discourage, would be to find themselves evicted as a result, under the terms of the clause. Why do the Government take the view that riot-related offences justify repossession and eviction when they do not take that view over equally serious or more serious offences? In addition, why do they think that those who commit riot-related offences away from their own locality and who own their own home or live in a house that is owner-occupied should face no further penalty other than the sentence of the court for the crime that they have committed but that those who live in rented accommodation should not only receive and serve the sentence of the court for the riot-related crime that they have committed but face eviction from the house in which they live in their own locality, along with other members of the household, who could include the tenant, who have committed no riot-related offences—indeed, no offences at all—and will be made innocent victims of Clause 91? The Government say that the Bill is about victims, but this clause creates victims.

The amendment to delete Clause 91 is in the name of the noble Baroness, Lady O’Loan, and my noble friend Lady Lister of Burtersett. It is that amendment that we will support if a vote is called.

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Moved by

[Lord Rosser]

85: After Clause 97, insert the following new Clause—
“Proxy purchasing of tobacco products on behalf of children
(1) A person commits an offence if he buys or attempts to buy a tobacco product or cigarette papers on behalf of a person under the age of 18.
(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”

[Lord Rosser]

My Lords, this amendment was also moved by my noble friend Baroness Thornton in Committee, so I do not intend to repeat all the points that were so powerfully made at that time. Needless to say, we were not happy at the Government’s response, which was basically that, because the measures proposed in this amendment would not solve all the problems in relation to young people in the purchasing of tobacco products, it should not be adopted. The amendment has the support of the Association of Convenience of Stores, which represents 33,500 stores, the majority of which sell tobacco products. The ACS welcomes these proposals as a further measure to help to restrict youth access to tobacco products.

It is illegal to sell tobacco products to anyone under the age of 18, but it is not an offence for someone to buy tobacco products on behalf of a minor. There is, thus, a gap in the legislation which this amendment seeks to close to bring the position more into line with the provisions of the Licensing Act 2003, which has made it an offence to proxy purchase alcohol. Proxy purchasing is one means by which young people gain access to tobacco products. A recent survey has shown that, in 2012, 8% of pupils had asked somebody to buy cigarettes on their behalf and nine out of 10 were successful at least once. We are not saying that tobacco proxy sales are the only means by which children receive their supply of cigarettes—there is a variety of means for this—but we are saying that it is one of the predominant ways, hence this amendment.

Issues were raised in Committee by my noble friend Lady Crawley concerning the need for proper enforcement and adequate surveillance if moves were made to tackle proxy sales of tobacco. That comes down to providing adequate resources, including for local authority trading standards organisations. However, we are talking about sales that adversely affect the health of young people and we should be prepared to act, as they have in Scotland, where there is an offence of proxy selling tobacco. That has the support of the Tobacco Manufacturers’ Association, which has said:

“Scotland introduced regulation criminalising the proxy purchasing of cigarettes, where adults purchase cigarettes on behalf of children in April 2011. The TMA and its members supports this legislation. Proxy purchasing was identified in NHS data as one of the most common sources of tobacco for young people”.

The Minister said in Committee that the Government had an open door on this issue, and my noble friend Lady Thornton invited them to think further on this matter before Report stage, which we are at today. I hope that the Minister will be in a position to give a more positive response to this amendment than he was able to do in Committee. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, my name is added to this amendment, which I feel is very important. We know that when young people start smoking, their addiction potential and the long-term harms are very great. There is good evidence that children get cigarettes by proxy either, particularly in the case of younger children, by stealing from their own families or by purchasing single cigarettes from other children at school. However, a cohort in the older, middle-teens bracket seems to obtain cigarettes more through proxy purchasing. Quite often, with a very small incentive added to the cost of the cigarettes, they use a drug abuser or somebody else to do the purchasing for them. The retailers—the small shops—which sell cigarettes find themselves in a really difficult position. Rightly, they are not allowed in law to sell directly to the youngster, yet they are aware that there is no lever in terms of proxy purchasing, although it is they who would be prosecuted rather than the person doing the proxy purchasing.

It is important to bring the law into line with legislation on alcohol purchasing. The harms from tobacco are in a different group from those relating to alcohol, but they should not be underestimated.

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[Lord Taylor of Holbeach]

I think that I can answer that best by saying that if the evidence were provided and the Government were persuaded that creating this offence was a practical and effective way of dealing with a policy issue that I am sure all noble Lords in the Chamber agree with, they would wish to see it introduced through primary legislation. However, I am not in a position to be definitive in my answer, and I think that my noble friend will understand the reasons for that. I can assure noble Lords that we are committed to reducing the availability of tobacco to children and young people. However, our actions must be guided by evidence and effectiveness. On that basis, I hope that the noble Lord, Lord Rosser, will be prepared to withdraw his amendment.

[Lord Rosser]

I would be grateful if the Minister would first clarify what he has just said. One interpretation is that the Government do not really intend to do anything further themselves but are urging anyone else who thinks that there is any evidence to put it in front of them. I am not sure whether that is what the Minister is saying. Obviously, if anyone else does have evidence on this issue, of course they should submit it to the Government—but are the Government themselves seeking to do anything to ascertain or produce evidence? The Robinson and Amos study of 2010 looked at how young people’s sourced cigarettes and attempted to circumvent underage sales. It concluded that there was a problem, and one suggestion was that regular national smoking surveys should include questions that would capture more accurately the nature and extent of proxy purchases. What I am asking the Minister is whether it is now purely up to other people to put the evidence in front of the Government, or are the Government, through the Department of Health, actually doing any work themselves to seek to ascertain evidence of their own?

The amendment that I moved would be a key tool by which the authorities would know that there was a problem in a particular location because of evidence that proxy purchasing was taking place. Again, is the noble Lord’s response that it is basically up to everyone else to provide the Government with evidence, or is he saying, “If you have any evidence, provide it to us, but we are also”—whether it be through the Department of Health or anyone else—“seeking that evidence ourselves”?

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[Lord Ahmad of Wimbledon]

I remind the House that we are on Report and that, after the Minister has spoken, unless it is a point of clarification or elucidation, normal convention is that there are no further interventions.

[Lord Rosser]

I note what the Minister has said about the situation in Scotland. I do not know whether that means he has had further information since we discussed it in Committee, but the Government said then:

“The Scottish Government, who we have talked to about this issue, say they do not currently hold any information about the numbers of convictions or, as yet, any evaluation of the effectiveness of the new offences”.—[Official Report, 4/12/13; col. 279.]

It appears from what the Minister has just said that, since 4 December, the Scottish Government have now said to the Westminster Government that the provision is not working. I do not know whether the Minister has had that information since we discussed it in Committee.

[Lord Taylor of Holbeach]

I do not want to give that impression. I am not prejudging this and I simply gave an evaluation. The results are disappointing because there have been no convictions and just one offence has been reported.

[Lord Rosser]

That is slightly different from what was said in Committee, when the noble Lord, Lord Ahmad of Wimbledon, on behalf of the Government, referred to the fact that, as far as the Scottish Government were concerned, there had been no evaluation of the effectiveness of the new offences. However, I will leave it at that and do not intend the pursue the issue any further.

I would like to think that the Government’s view is that they will play a part in seeking to evaluate the evidence for the measures set out in this amendment and that it is not simply up to other people to provide it to them. I hope that is what I can draw from what the Minister has said. I might have drawn the wrong interpretation, so I will not say that I will withdraw the amendment on that basis, but, in the hope that that is the correct interpretation and that the Government in fact intend to take an active role in evaluating the evidence and not simply rely on others to provide it, I beg leave to withdraw the amendment.

Amendment 85 withdrawn.

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[Baroness Hamwee]

My Lords, I thought that at the previous stage the noble Lord, Lord Condon, had it right when he said he feared that,

“the real mischief they and we might seek to address is not the absence of suitable offences but the absence of action”.—[Official Report, 4/12/13; col. 255.]

I asked questions of my noble friend about sentencing, the aggravating nature of that type of offence and so on, and I am afraid that I have not changed my mind about those two aspects.

I am interested in the definition of “worker” in the noble Lord’s amendment. One qualifies, as it were—that is not quite the right term but he will know what I mean—only if one is “physically present”. Reading that, I wondered how that works with his requirement for malice in subsection (2) of the proposed new clause. When I saw the word “malice”, I thought that he had in mind, for example, someone who—possibly for very personal reasons—does not like people who work in jobcentres but then discovers that his neighbour works in a jobcentre. Is that malice towards all such people for that sort of reason or are we talking about something very personal? Does it mean being in the workplace or in the sort of situation that I have suggested, hanging around until one’s neighbour comes out of the house and having a go at him for that reason?

I was also interested in subsection (4) of the proposed new clause. If I remember rightly—I have not gone back to check—I think that on the previous occasion the noble Lord talked about “evidence from a single source”. That seems to be a matter for the courts. We should not tell the courts how to assess evidence. If he is saying that there is some restriction on the way they are working at the moment, it may be a different matter—but, again, that made me wonder where the noble Lord was going with this.

On the aggravating nature of the offence, we have to be careful not to devalue the importance of that approach to sentencing. This, of course, is not the only aggravating factor for the courts, but the Sentencing Council does a very important job in identifying appropriate aggravating factors.

[Lord Rosser]

My Lords, my noble friend Lord Foulkes of Cumnock very eloquently made the case in support of this amendment. It is really about supporting victims of assault by a member of the public in the course of their employment and in the course of earning their livelihood. I suppose that the question is whether one feels that the matter should be dealt with by regarding that kind of assault as one of a great many aggravating factors in an assault case, or whether it should be regarded as a separate offence. The noble and learned Lord, Lord Hope of Craighead, referred to the impact of the new offence in Scotland in relation to assaults on emergency workers.

It is worth looking at some of the figures that have emerged. Those from the HSE’s Crime Survey for England and Wales show that there were nearly 650,000 reported incidents of violence at work and that workplace violence comprises some 31% of all reported crimes of violence. The HSE found that the occupations at greatest risk were those that involved working with the public. That is hardly a surprise, but nevertheless it was confirmed by the HSE.

Reference has been made to the position of shop workers. USDAW, the union that represents them, undertakes members’ surveys, which show that in the past year 4% of retail staff were attacked at work—which is equivalent to some 120,000 assaults—and 34% were threatened with violence. In addition, 17% of those attacked did not report the offence—and we can all speculate as to why that might have been the case.

People at work—in their employment, in the course of earning their livelihood— are in a different situation from most other people. The reality is that an assault on somebody at work can be quite traumatic. It can lead to a situation where somebody is reluctant or fearful to go back to their place of work and be in exactly the same situation that they were in when they were attacked, facing a constant stream of strangers, any one of whom could become violent. One can also find cases of people assaulted by a member of the public in the course of their employment where the assault leads to them actually losing their job and their livelihood, because they are so traumatised that they are no longer able to return to the same job at the same location and to carry on with that employment. Those are among the victims who feel that sentencing probably does not reflect the effect that that kind of assault can have on their lives.

As has already been said, many people in the course of their employment are actually put in the way of danger by their work. They are the kind of people who have already been mentioned: public transport staff, fire workers, security staff, emergency service workers and shop workers. They often have to deal with people who are aggressive, drunk or attempting to break the law. Those workers are the kind of people who can be working late at night, sometimes on their own and in areas of anti-social behaviour which most people voluntarily avoid for their own safety. Workers in that situation do not have that particular option.

Some staff in the course of their employment dealing with the public have an obligation to seek to enforce the law. Those, for example, who serve alcohol are required to obtain proof of age from the purchaser. They are required to refuse to serve someone who is drunk and they are required to refuse a proxy sale of alcohol—although not of tobacco, as we were discussing earlier. Those kinds of actions are all major triggers for assaults on staff, and reference has already been made to the situation in that regard. In the USDAW survey, some 30% of assaults arose from challenging age-restricted sales, and some 15% related to people who appeared to be committing theft.

Those actions, carried out by people in the course of their employment who are required to seek to enforce the law, place workers at risk. If they are not undertaken—particularly in relation to refusing to serve people with alcohol when they are under age, or refusing a proxy sale of alcohol—staff can be liable for prosecution or for action to be taken against them for failing to carry out their duty to seek to enforce the requirements of the law where it applies.

There are, therefore, differences in the position of people who are assaulted in the course of their employment. They cannot run away; they cannot move somewhere else; they have to go back to their employment after an assault and be in the same situation in exactly the same circumstances as they were, facing members of the public and probably fearing that the same kind of thing might happen again. In some cases, it can cost them their jobs because the experience has been so traumatic that they feel they cannot carry on. Many are put in danger by the nature of their work or the kind of job they have to do; many are required to enforce the law as part of their work.

Like my noble friend Lord Foulkes of Cumnock, I hope that we will get a more sympathetic response to this amendment. There is a case for having a separate offence of assault on a person in the course of their employment by a member of the public, and for not regarding it as simply one of a large number of aggravating factors for the offence of assault.

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[Lord Ahmad of Wimbledon]

A Freudian slip there perhaps. Maybe I was honest in my first assessment. Nevertheless, I listened very carefully to the noble Lord, Lord Rosser, when he talked about victims. In my own life serving the public in local government, quite often I came across a victim of crime—we are not talking about someone who serves the public, but any victim of crime. The noble Lord painted a scenario about that person having to return to their place of work. If someone has been assaulted in their own house, on the way to work, catching a train, at a bus stop or a station, there is equally a sense of great trepidation when the person has to return. It is important when we look at these issues that we put them into context. Ask any victim of crime, particularly serious crime, and the trepidation and fear that they feel in overcoming those challenges are intense.

Of course I acknowledge what the noble Lord is saying. When we face public life where does it stretch? The noble and learned Lord, Lord Hope of Craighead, contributed with his experience of the judiciary. Often, the judiciary are in the front line when they have to sentence people. There is an issue to be tackled there. Here, we sit in the Lords and many have served in representative office. Politicians put themselves in the front line when they face the public and indeed there have been instances where they have been assaulted in their own offices.

We argue that the degree of seriousness depends on the particular facts of the case. Why should it be worse, for example, or more traumatic for someone to be assaulted at work rather than on the bus going to work, or for that matter when locking the front door when leaving for work, or as a result of an intrusion into the home? The simple truth is that every case is unique and may have aggravating and mitigating circumstances that should be taken into account. That is where the judiciary comes in. We rely on the judiciary, guided by sentencing guidelines, to do just that.

Specific issues and questions were raised by the noble Lord, Lord Foulkes, and others on issues vis-à-vis the police. First, assaults against people whose work brings them into contact with the public should receive the same sentence as an assault on a constable. That is already the case. With regard to the offence of an assault on a constable, we accept, as my noble friend Lord Taylor said previously, that the police do occupy an important role in society and a slightly different one by virtue of the role that they have to perform. But that does not mean that an assault on someone else, while being a distinct offence, carries a different maximum penalty. Both offences, be it on the police constable or anyone else, carry a maximum penalty of six months’ imprisonment or a fine not exceeding level 5 on the standard scale currently set at £5,000.

The noble Lord, Lord Davies of Coity, also raised the issue of young women. Again, I would say, as the noble Lord, Lord Foulkes, said about the Asian community, that there are particular circumstances that have to be looked at. We maintain that the current law provides protection. He mentioned the case of Kim and I listened very carefully. It is a great concern that there are harrowing experiences of victims of assault and noble Lords have shared those with the House today and in Committee. As I have already said, there are lasting consequences from these attacks. It is down to the individual and how they deal with it. It is the role of government, community and society to provide the support and protection they need. It concerns me greatly that individuals are not reporting serious crimes because they believe that nothing will be done. But we believe that having a new offence will not make a difference to that issue.

The noble Lord, Lord Foulkes, and the noble and learned Lord, Lord Hope of Craighead, pointed to the experience in Scotland. I take the point on board about the higher number of people being charged. It may well be that offences are currently being prosecuted under the legislation protecting emergency workers as an alternative to common assault. But I will certainly take their comments back, make inquiries with the Scottish Government and write to them in that regard if I may.

In closing, I assure the House that the Government are committed to improving things for victims of crime. Since 2011, the Ministry of Justice has provided—and continues to provide—more than £50 million in funding per year to diverse victims’ organisations, including a £38 million per year grant-in-aid agreement with Victim Support. My noble friend is not in her place, but I remind noble Lords of the appointment of my noble friend, Lady Newlove, as Victims’ Commissioner. As noble Lords know, she has personal experience that she brings to bear to protect and help others and ensure that we can tackle these issues with people who have tragic experience in this regard. I pay tribute to her work.

The new victims’ code recently came into force. It explains what victims should expect from the criminal justice system, who to request help from and how and where it should be provided. The code also holds those in the criminal justice system to account, makes victims their priority and gives victims a clearer means of redress if they are not given the support they deserve. We all believe that victims need to know that the criminal justice system will work as hard as possible to deliver justice for them and help them recover and move on with their lives. As I said, ask any victim of crime; that is exactly what they want to do. Indeed, often we hear that they do not want to be known as victims of crime: they want to know that they are survivors of crime because they have moved forward with their lives.

The noble Lord is a man whose contributions I am sometimes amused by and often entertained by. They often add to the spirit, detail and diversity of debate and discussion. Moreover, they add to the quality of debate we have in this House. I hope that, with the reassurances and explanations I have given, he will be minded to withdraw his amendment.

[Lord Rosser]

The Minister sought to argue when I said that staff working with the public and facing assault were to some extent different from others. He sought to say that that was not the case. Does that mean that it is the Government’s view that in offences committed against those working in the public sector or providing a service to the public that should not even be an aggravating factor?

[Lord Ahmad of Wimbledon]

The noble Lord is being somewhat disingenuous with the comments I made. The parallel I was drawing was with victims of crime. Of course, there are aggravating circumstances and the Government take them into account. But I was trying to highlight to the noble Lord and to the House that if you ask any victim of crime they will tell you that in the circumstances that he was painting about somebody having to go back to their place of work that the same is true of someone who has been assaulted in the street or at the bus stop. It is our belief that people should be treated according to the law in a fair and just system. I believe that the current law does just that.

Syria

Lord Rosser Excerpts

Thursday 9th January 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, the noble Lord, Lord Roberts of Llandudno, spoke with real passion and feeling. The more one reads and hears about the devastating impact on the population of the now long-running conflict in Syria—as opposed to the politics of the conflict—the more one can be forgiven for having feelings of despair and utter frustration. Hence comes the vital importance of the diplomatic efforts to resolve the current crisis, to which the noble Lord, Lord Wright of Richmond, referred.

Of course, this is not a purely internal Syrian conflict; there are other countries and different factions and groupings heavily involved behind the scenes—sometimes hardly even behind the scenes—with most of, but by no means all, those countries being within the region.

We now have getting on for 2.5 million registered refugees, more than half of whom are children, and a further 4.25 million people who are displaced inside Syria. That means that nearly a third of the country’s population have had to leave their homes. The United Nations High Commissioner for Refugees has described the situation as,

“a disgraceful humanitarian calamity with suffering and displacement unparalleled in recent history”.

The figure for refugees is also only the number of those who have registered as such; hundreds of thousands are believed not to have registered with an asylum authority.

Five countries close to Syria, including Iraq, host 97% of the refugees. In two of those countries, Jordan and Lebanon, the effect has been to increase their populations by 9% and 19% respectively. One inevitable consequence has been to put considerable strain on the resources available in those countries.

Apparently, the United Nations humanitarian appeal for refugees from Syria and the region is only some two-thirds funded, following the response from the international community. We have pledged £500 million for the Syrian relief effort, which the Government have said is the United Kingdom’s largest ever response to a humanitarian crisis.

The provision of resettlement and humanitarian admission places has not yet evoked a particularly positive response either. The United Nations High Commissioner for Refugees set a goal of securing 30,000 places for Syrian refugees from 2013 to the end of 2014. So far, just over half those places have been pledged, of which just under 12,500 have been pledged by EU countries. Of that figure, 10,000 places were offered by Germany in the form of a humanitarian admission programme. Excluding Germany, the remaining 27 EU countries have pledged just under 2,500 places, with 18 EU member states, including the United Kingdom, not making any resettlement or humanitarian admission pledges. The Gulf Co-operation Council countries have not offered any resettlement or humanitarian admission places either to refugees from Syria.

With the ability of Syria’s neighbouring countries to host refugees becoming ever more strained and with conditions for refugee populations deteriorating, more are attempting to reach the EU by risking their lives, on journeys by sea or across land, to reach Europe. Hundreds, if not thousands, have drowned on journeys by boats that never reached their destinations.

The Government’s approach has been that it is better to help neighbouring countries such as Lebanon, Jordan, Turkey, Egypt and Iraq to cope with the very considerable numbers of refugees from Syria, and we can be proud of the support that we have given and the amount that we have pledged for the Syrian relief effort. The more that can be done to enable those countries to cope and provide conditions that are acceptable, the better, since the likelihood is that those who have been forced to flee Syria will wish to return to their own country when it is safe to do so.

However, it is also our view that we should do our part, alongside other countries within the UN’s programme, to provide a safe haven for some of the most vulnerable Syrian refugees fleeing this murderous conflict. We have referred to a figure of around 500 refugees. We do not believe that the Government should turn their back on those people. It is our moral duty to respond to the UN’s call for help by accepting some Syrian refugees, just as for hundreds of years our country has helped those fleeing persecution.

The specific issue for debate is what action the Government should take in conjunction with other European Union member states to establish a Europe-wide evacuation and resettlement programme for those fleeing conflict in Syria. It is of course for the Minister to answer that question when he responds, but he should certainly have something to tell us, since a Home Office Minister stated in a parliamentary Written Answer in October last year that the Government,

“continue to discuss the Syrian crisis with our European partners”.—[Official Report, Commons, 24/10/13; col. 223W.]

Can the Minister indicate what exactly is being discussed and whether the establishment of a Europe-wide evacuation and resettlement programme for those fleeing the conflict in Syria is being discussed with European partners?

In the light of our £500 million pledge for the Syrian relief effort, we are in a good position to pursue with European countries the need to provide humanitarian assistance to displaced people, in partnership with neighbouring countries and the United Nations High Commissioner for Refugees. However, we are not in such a strong position to pursue with European countries the need to accept some Syrian refugees, because we have not been prepared to do so ourselves. Apparently, even Mr Farage thinks that we should do something in that direction; the Government, however, do not. Like my noble friend Lord Dubs, I suspect that the Government’s stance has had more to do with opinion poll judgments than any lack of compassion.

In the parliamentary Written Answer to which I referred, the Home Office Minister stated that,

“the Government has no current plans to resettle Syrian refugees”.—[Official Report, Commons, 24/10/13; col. 222W.]

Hopefully, the Minister will be able to tell us that that is no longer the Government’s position, that plans now exist and that, as a result, we will also be in a better position to pursue with our European partners the issue of accommodating Syrian refugees.

Anti-social Behaviour, Crime and Policing Bill

Lord Rosser Excerpts

Wednesday 8th January 2014 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, in developing our anti-social behaviour reforms, the Government have, both formally and informally, sought the views of the front-line professionals who will use the new powers. We have listened to them and, where appropriate, have accepted constructive proposals to improve the measures in the Bill. The amendments in this group exemplify this approach.

Under Clause 1(8), applications for injunctions against over-18s to prevent nuisance and annoyance will be heard in the county court and applications against under-18s will be heard in the youth court. However, some cases of anti-social behaviour involve mixed groups of under and over-18s. To allow for such cases, Amendment 19 would enable rules of court to be made which would, in turn, enable the organisation applying for an injunction to seek permission from the youth court for the application against the adult—or, indeed, applications if there is more than one adult—to be heard in the youth court alongside the applications in respect of one or more under-18s. The youth court may grant the application if it is “in the interests of justice”. If not, the application will be denied and the application in respect of the adults will be heard in the county court in the normal way.

If the case is heard in the youth court and an IPNA is granted, Amendments 8, 9, 10 and 11 provide that any subsequent proceedings in relation to the adults will be heard in the county court—for example, if there are proceedings for a breach. Only the initial application for the grant of an injunction will be heard in the youth court.

Amendments 6, 7 and 21 are consequential on Amendment 19. These amendments help put victims first. In most cases, it will prevent them having to attend court and give evidence twice. The amendments will also reduce costs and save court time. By linking these hearings in the youth court, we will retain the experience and expertise of its judges in protecting the best interests of respondents under 18. I beg to move.

[Lord Rosser (Lab)]

We understand the reasons for these amendments and for wanting to try to ensure that cases involving those under 18 and those who are adult, where they relate to the same issue, can be tried or dealt with in the same court. Therefore, I certainly have no wish to argue against the principle of what the Government are seeking to achieve. However, in the letter that the Minister sent to us on 18 December, in which he outlined these amendments that were being tabled, he said in respect of this issue:

“We believe that it is in the best interests of respondents aged under 18 for linked cases involving adults to be transferred to the youth court rather than vice versa”.

Can he confirm that that means that a case could not be held in the adult court if somebody aged 18 was involved? Perhaps for the sake of argument I may take as an example—perhaps it is very exceptional—a case where there are, say, four or five adults and one person under 18 who happens to be 17 and a half. Under these amendments, is it the Government’s position that it would not be possible, if the parties wanted it, for the matter to be dealt with in the adult court? Are they saying that if the cases are going to be dealt with together, that can happen only in the youth court? I should be grateful if the Minister could clarify that point.

I stress that we are not opposed to what the Government are seeking to achieve, but I pose the question in the light of the sentence in the letter that was sent to us where reference was made to believing it to be,

“in the best interests of respondents aged under 18 for linked cases involving adults to be transferred to the youth court rather than vice versa”.

Does that mean that they could never be held in the adult court, even if for example there were four or five adults and one under 18? I think that I know the answer to this, but could the Minister say why the Government believe that it is in the best interests of respondents aged under 18 for linked cases to be in the youth court rather than vice versa?

[Lord Ahmad of Wimbledon]

My Lords, I will clarify that. As was put down in the letter of my noble friend on the final point, there is an understanding and appreciation that with youths under 18, youth courts have certain specialist knowledge in dealing with these cases. The point, which has been raised over and again, is that one of the key things, especially when it comes to such matters, is reforming and addressing particular issues, and ensuring that we prevent reoffending. We feel that the youth courts, particularly in the cases of under-18s, are best placed to deal with these issues. I can confirm that a case involving a person under 18 cannot be transferred to the country court in any circumstances.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, this amendment follows up the debate in Committee initiated by the noble Lord, Lord Rosser, about Clause 13. This clause preserves an existing power available to social landlords to apply for tenancy injunctions to prohibit anti-social behaviour which relates to or affects their management of their housing stock.

In Committee, the noble Lord, Lord Rosser, sought to challenge Clause 13 on the grounds that its provisions were not tenure-neutral. As I have indicated, Clause 13 simply preserves an existing power available to social landlords under Section 153D of the Housing Act 1996. That section, which, I might add, was inserted into the Housing Act by the previous Administration in 2003, responded to calls from social landlords that they needed to be able to hold their tenant responsible for the behaviour of visitors. However, strictly speaking, Clause 13 is not necessary, as an injunction under Clause 1 can be used to achieve the same end of holding the respondent responsible for the anti-social behaviour of the visitors to their property, regardless of tenure.

We included Clause 13 in the Bill because social landlords were familiar with tenancy injunctions. However, given the points raised in Committee by the noble Lord, Lord Rosser, and after further consultation with social landlords, we have decided to remove the clause to ensure that the injunction is completely tenure-neutral. This will fit in with our wider approach of simplifying anti-social behaviour powers through the Bill, while ensuring that social landlords, like the police and other agencies, will have access to the tools they need. I beg to move.

[Lord Rosser (Lab)]

My Lords, I thank the Minister for introducing the government amendment. Any move towards increasing tenancy neutrality in the Bill is to be welcomed. I will raise one issue with the Minister, which arises from the letter that he sent to us setting out the reasons for the changes that were being made. The paragraph in question states:

“However, as the IPNA can do everything a tenancy injunction can do, we are satisfied that there is no compelling case for retaining this bespoke provision for those living in social housing”.

Earlier in the letter, the Minister had said:

“The provisions in respect of the IPNA are tenancy neutral”—

I am not sure whether that is regarded as different from tenure-neutral—

“save for the provisions in clause 13”.

From that, one would assume that if Clause 13 is disappearing from the scene, then the provisions in respect of the IPNA are indeed neutral. With the comment in the letter that,

“the IPNA can do everything a tenancy injunction can do”,

that was why the Government felt that they could withdraw Clause 13. Of course, not only does Clause 13 cover what is said in Clause 12(1), that an injunction,

“may have the effect of excluding the respondent from the place where he or she normally lives”,

it also states:

“The court may include in the tenancy injunction a provision prohibiting the person against whom it is granted from entering or being in … any premises specified in the injunction (including the premises where the person normally lives)”,

and,

“any area specified in the injunction”.

In the light of the statement in the letter that the IPNA can do everything a tenancy injunction can do, are we to assume that that part of Clause 13(3) would or could apply to any tenure and not simply to those tenures previously covered by the tenancy injunction? As I understand it, the Government appear to have moved on that point and the provisions in respect of the IPNA are now neutral. Bearing in mind what Clause 13(3) said, which went beyond merely,

“excluding the respondent from the place where he or she normally lives”,

which covered,

“any premises specified in the injunction”,

and,

“any area specified in the injunction”,

is that something that is still to be reserved for social housing tenants or is it something that, if it was deemed necessary or desirable, could now be applied to anybody in any form of tenure?

[Lord Ahmad of Wimbledon]

My Lords, to clarify, as I said earlier in moving the amendment, an IPNA could impose the prohibitions that were specifically referred to in Clause 13 as well. For example, an IPNA could be used to deal with visitors to a property. As such, the provisions are covered in an IPNA. Therefore we have tabled the amendment in light of the comments made by the noble Lord in Committee.

[Lord Rosser]

That would be irrespective of tenure? It would not apply purely to social housing?

[Lord Ahmad of Wimbledon]

As I stated earlier, the purpose behind the IPNA is that it would be tenure-neutral.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I add just a word based on my experience of how these things are dealt with in the courts. The advantage of the present rule is that a uniform rule applies throughout the country and avoids the problem, which is commonplace in the courts, of different practices in different areas and different judges taking different views. The uniformity of the rule is one advantage.

The second point, which the noble Baroness just mentioned, is that it is essential, if a reporting restriction is to be effective, that it be asked for at the beginning. There is always a risk that somebody nips out of the court before the order is made and the damage is then done but the individual can say, “I wasn’t there when the order was made”. To be effective, it has to be made at the start.

The third point is representation. I do not want to go into the issues about legal aid, which are not a matter for this debate, but there would be concern that people who are not very experienced and not attuned to all the matters raised by the right reverend Prelate fail to take the point. My impression is that if the point is taken as eloquently as the right reverend Prelate made it, the court would be very slow not to make an order unless there were compelling reasons for refusing the application, but it requires an application to be made, because I suspect that a court will not take the initiative without that.

Those are advantages of the present rule which would be lost. Obviously there is a balance to be struck, but I would be interested to know to what extent study has been made of the effect of losing those advantages, if the Bill is to remain in its present form.

[Lord Rosser]

My Lords, I will be brief. The Minister has been asked a number of relevant questions and I am sure that noble Lords will be waiting to hear the responses. In particular, do the Government anticipate that their proposal, with provision for suspending Section 49 of the 1933 Act, is likely to lead to a significant increase in the number of children being named as a result of that suspension of Section 49? Or do they take the view that it will lead to very little increase at all because they think that courts will regularly make decisions—an active choice—not to name the child in question? The question has already been asked about the Government’s intentions, not in respect of numbers or an exact figure, but whether they are looking for a significant increase in the number of children named. Is that the purpose of this? Or is their view that even though they are making the change, it may not make a great deal of difference because the courts are more likely to look at this matter and make the active choice not to name the child in question?

The answer may be that it is already covered in the draft guidance. I have not looked at the guidance to see if it is. However, if it is not already in the guidance, is it the intention that the guidance which will be issued to professionals will say anything about making applications to courts for children not to be named where professionals are directly involved? If it is not in the guidance is it the intention that it should be put in that guidance, and what in fact would it say?

I will leave it at that; the concerns have been expressed about this. Obviously there are already circumstances where children can be named as far as legislation is concerned, and I do not want to pretend that that is not the case. Clearly the Government were expecting that numbers of IPNAs would be issued and, therefore, that that might have an effect on the numbers of children being named. Whether that would still be the case in light of the amendment that has now been carried will remain to be seen. Nevertheless IPNAs will still be around, and that may lead to an increase in the numbers of children being named. It would be helpful to know the Government’s stance. Is that what they are looking for—or do they not see it making a great deal of difference? Will they be giving advice to anybody? I know that they cannot give advice to the courts, but will they give advice to professionals who might be appearing in court in order to make sure that courts are reminded at the very least that they do have this power to make the decision that children should not be named?

[Lord Taylor of Holbeach]

My Lords, this again has been a good debate on an important issue. Though it is a small part, it is an important part of these provisions. I thank the right reverend Prelate the Bishop of Ripon and Leeds for presenting these amendments for our discussion.

As the House will know, the Government do indeed believe that there is a need for reporting restrictions in respect of under-18s in certain cases, where it is both necessary and proportionate to allow for effective enforcement of an injunction or criminal behaviour order. This will enable communities to play their part in ensuring that the injunction and criminal behaviour order are effective in tackling anti-social behaviour by alerting the police if the respondent or offender breaches their conditions. Publicising the injunction and the order in certain cases will provide reassurance and increase public confidence in agencies’ willingness and in their ability to take action against perpetrators of anti-social behaviour. Potential perpetrators will be deterred from committing anti-social behaviour due to reporting. So while I understand the sentiment behind these amendments, I believe that there is a strong case for maintaining the default position under Clauses 17, 22 and 29. This mirrors the current position for anti-social behaviour orders.

Anti-social Behaviour, Crime and Policing Bill

Lord Rosser Excerpts

Wednesday 8th January 2014 Lords Chamber

Given the scale of the spending cuts on the local authorities and the fact that my own authority is having to lose about half its staff over six or seven years, the problem is whether that team will exist in a year’s time. The presence of services and teams like these, which are not statutory but voluntary as far as the council is concerned, is crucial if the statutory provisions in this Bill are to work. I think they would want me to make that point. Having said that, I support the amendments in this group and hope that the Minister will reply to my little amendment.

[Lord Rosser (Lab)]

As has been said, the Home Office has already published draft guidance for front-line professionals. The purpose of these amendments is to refer to it in the Bill, with the conferring of powers on the Secretary of State to issue it. In one of the letters sent to us, the Minister also said that:

“We also undertook in response to yet other amendments to revisit the terms of the draft guidance for frontline professionals”.

That letter set out a list of the areas where they would review the draft guidance.

Is the outcome of that review known or is it still taking place? If it is still taking place, is the intention that we will see the outcome of the review of the draft guidance and know what it is before we get to Third Reading? We have at least had the advantage in the discussions we have had so far of knowing what was in the already published draft guidance and, if it is being looked at again, we ought to have sight of any revisions being made to it before we conclude our discussions on the Bill. That would be extremely helpful. Is it now the Government’s intention to review the draft guidance in the light of the carrying of the amendment earlier today, which must presumably have some impact on the draft guidance that has been issued?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank my noble friend Lord Greaves for his amendment and his comments. I have scribbled down here that I would convey his thanks to my noble friend Lord Taylor of Holbeach. I have so conveyed them and he has obviously heard them, so there we are.

Turning to Amendment 57, I can assure my noble friend that any guidance produced under the new clause proposed in Amendment 56 will automatically apply to any person or body designated under the new clause proposed in Amendment 53. We will come on to that amendment later in our proceedings but suffice it to say that, by virtue of subsection (2) of the proposed new clause, any designated person or body would be treated as a local authority for the purposes of Chapter 2 of Part 4 as a whole. As such, the guidance produced for local authorities under the terms of Amendment 56 will be applicable to persons or bodies designated in accordance with the provisions in Amendment 53. I hope that reassures my noble friend in relation to his amendment.

On the questions raised by the noble Lord, Lord Rosser, and taking the second question first on revisions to guidelines in the light of the vote, obviously the vote has happened and we shall look at the outcome. The guidelines will be finalised once the Bill has reached its final stages in Parliament.

As to where we are on the guidance, we are currently working with councils, the police and others. Over the coming months we will discuss the effects of the guidance but any results and further alterations will, unfortunately, not be available before Third Reading. However, the final draft of the guidance will reflect the terms of the Bill as enacted.

With those reassurances to my noble friend, I hope that he will be minded not to move his amendment.

--- Later in debate ---

[Lord Brooke of Sutton Mandeville (Con)]

My Lords, I shall speak to government Amendment 53, to which my noble friend has just spoken. In responding to my amendment in Committee, my noble friend Lord Ahmad was kind enough to acknowledge that there appeared to be a strong case for extending the availability of public spaces protection orders to bodies other than local authorities. I am most grateful that further consideration has confirmed that view. I know also that the City of London Corporation, whose position prompted my earlier intervention, is grateful for the constructive and open-minded approach taken by officials during discussions on this point. No doubt, other bodies that manage public spaces under statute but are not local authorities will also find the change helpful.

My noble friend will recall that in my amendment in Committee, to which Her Majesty’s Government have now helpfully responded, I alluded to Epping Forest. In this appreciation of the Government response, I quote a testimonial about the Corporation of London from 1979—35 years ago—when I moved in the Commons the Second Reading of a private City of London (Various Powers) Bill on behalf of the City which primarily related to Epping Forest. Two of my noble friends who are now in your Lordships’ House spoke in that Second Reading debate: my noble friend Lord Tebbit, then MP for Chingford, and my noble friend Lord Horam, then replying to the Bill as Under-Secretary for Transport. They were thus witnesses to the quotation uttered by the late Arthur Lewis—then and for the previous 34 years Labour MP for West Ham, where he was Tony Banks’ predecessor—when he spoke in that debate. I quote the conclusive passage in his speech:

“I do not trust the Department of Transport. By its actions over the years it has not proved that it has the best interests of the people at heart. The City of London has proved this. It has done so for 100 years, and certainly to my personal knowledge for the past 34 years … I have gone along to many Ministers, ministerial advisers and local government officers. I have never found any of them so accommodating or helpful as the City of London authority and its officers. They have not put themselves out in the way that the City of London’s officials have. When I have problems or difficulties over Wanstead Flats, West Ham park or Epping Forest, I know that I get better treatment from the authority’s officials than I do from ministerial Departments”.—[Official Report, Commons, 6/3/79; col. 1203.]

I am confident that the Home Office will be rewarded by the Corporation of London for government Amendment 53 with just such similar imaginative service in future.

Finally, to wind up, I also thank the Minister for taking up the drafting point in Clause 67(2) that I raised in Committee in relation to the interpretation of Chapter 2. I note that this has been addressed in the Report stage print of the Bill now before us and I express appreciation for the Government’s reaction to that.

[Lord Rosser]

I will just raise one or two questions on these amendments. Again, I look particularly at what was said in the letter we received from the Minister. On these particular government amendments, that letter ended by saying that any public spaces protection order,

“made by a designated body under the provisions of the new clause would take precedence over a PSPO made by the local authority in whose area the land is situated”.

As I understand it, that means that a PSPO made by the City of London Corporation—if it was so designated—would take precedence over a PSPO made by the local authority covering the area of Epping Forrest, Ashtead Common, Hampstead Heath or any other areas. I would be grateful if the Minister could confirm whether that is the case. It is what the last sentence of his letter dealing with these government amendments says, as I just read out.

On the face of it, that would appear to be rather odd because Clause 55, which deals with public spaces protection orders, says that two conditions must be met, the first that,

“activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality”.

If the City of London Corporation has responsibility for managing an open space, presumably most of those who will be deemed to be affected on the basis of the,

“quality of life of those in the locality”,

are unlikely to actually live in the open space and likely to live in the areas surrounding it, which are presumably within the area of the local authority.

I am not seeking to raise some frivolous point, and my intention is not to oppose this amendment. What I am getting at is whether there are potential areas of conflict now between what the City of London Corporation may deem to be necessary or desirable in a public spaces protection order and the views of the local authority, bearing in mind that it is surely only the local authority that can make the judgment on whether activities were being carried on which had a detrimental effect on the quality of life of those in the locality. I would be grateful if the Minister could clear that up. Perhaps I have misunderstood it. If I have, I am sure the Minister will explain that when he responds.

[Lord Ahmad of Wimbledon]

My Lords, first, I thank my noble friend for his kind remarks and I reiterate the Government’s thanks for raising these issues. On the noble Lord’s point on clarification of the letter, it is my understanding—and we are just double-checking—that the letter got the position the wrong way round, so we apologise for that. I trust that clarifies the point.

[Lord Rosser]

If I may confirm what the letter should have said, it is that the PSPO made by the local authority has precedence over that made by the City of London or a designated body. That clears it up. I thank the Minister very much.

Amendment 52 agreed.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2013

Lord Rosser Excerpts

Thursday 12th December 2013 Lords Chamber

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

My Lords, the Government are determined to do all that they can to minimise the threat from terrorism to the UK and our interests abroad. Proscription is an important part of the Government’s strategy to tackle terrorist activities. We propose to add Imarat Kavkaz, also known as the Caucasus Emirate, to the list of international terrorist organisations, amending Schedule 2 to the Terrorism Act 2000. This is the 13th proscription order under that Act.

Having carefully considered all the evidence, the Home Secretary believes that Imarat Kavkaz meets the statutory test for proscription and that it is appropriate to exercise her discretion to proscribe it. Section 3 of the Terrorism Act 2000 provides a power for the Home Secretary to proscribe an organisation if she believes it is currently concerned in terrorism. The Act specifies that an organisation is concerned in terrorism if it: commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism, including the unlawful glorification of terrorism; or is otherwise concerned in terrorism. If the test is met, the Home Secretary may then exercise her discretion to proscribe the organisation. In considering whether to exercise this discretion, the Home Secretary takes into account a number of factors: the nature and scale of an organisation’s activities; the specific threat that it poses to the United Kingdom; the specific threat that it poses to British nationals overseas; the organisation’s presence in the United Kingdom; and the need to support other members of the international community in tackling terrorism.

Given the wide-ranging impact of proscription, the Home Secretary exercises her power to proscribe only after a thorough review of the available relevant information and evidence on the organisation. This includes open source material, intelligence material and advice that reflects consultation across government, including with the intelligence and law enforcement agencies. The Home Secretary is supported in her decision-making by the cross-Whitehall proscription review group. Decisions to proscribe are taken with great care by the Home Secretary and it is right that the case for proscribing new organisations must be approved by both Houses.

Having carefully considered all the evidence, we firmly believe that Imarat Kavkaz is currently concerned in terrorism. Noble Lords will appreciate that I am unable to comment on specific intelligence that leads to any decision to proscribe, but I can provide a brief summary of its activities. Imarat Kavkaz, or the Caucasus Emirate, is a terrorist organisation which seeks a Sharia-based caliphate across the north Caucasus. It regularly uses terrorist tactics and has carried out attacks against Russian state and civilian targets. The organisation claimed responsibility for the January 2011 suicide attack on Domodedovo Airport in Moscow that killed 35, including one British national, and a suicide attack on the Moscow metro in March 2010 that killed 39. Since then, there has been continued activity by Imarat Kavkaz, including renewed threats of activity in Russia made during the summer of 2013. The organisation is designated by the US and listed by the UN under the al-Qaeda sanctions regime. Subject to the agreement of this House, the order will come into force on Friday, 13 December.

In conclusion, I believe it is right that we add Imarat Kavkaz to the list of proscribed organisations under Schedule 2 to the Terrorism Act 2000.

[Lord Rosser (Lab)]

The Minister explained the statutory power available to the Home Secretary to proscribe an organisation that she believes is currently concerned in terrorism and the factors that she has to take into account before exercising her discretion. The United States proscribed Imarat Kavkaz in 2011 after it was linked to the two deadly attacks in Moscow to which the Minister referred—namely at the international airport, when 35 people were killed, and in the Moscow metro, in which 39 people were killed. Imarat Kavkaz was formed in late 2007 and is an Islamic militant organisation based in Russia’s north Caucasus. Its stated goal is the liberation from the control of Moscow of what it considers to be Muslim lands. It regularly conducts attacks against Russian security forces and is linked to al-Qaeda.

We support the order, but I have three points to raise. When the order was discussed in the House of Commons on Tuesday, Diana Johnson MP asked the Minister in the other place about the effects of proscription on the social media, given that Imarat Kavkaz has a number of Facebook pages, and a range of fan pages are directed towards its leader. She asked the Minister to,

“clarify whether Facebook will be prohibited from hosting such fan pages and allowing people in the United Kingdom to access them once the group is proscribed”.

The Minister replied:

“The group’s Facebook page has been referred to the Counter Terrorism Internet Referral Unit, which has responsibility for assessing such issues. If the site is assessed to be illegal, the CTIRU will flag that up with Facebook directly and have it taken down”.—[Official Report, Commons, 10/12/13; cols. 204-05.]

I appreciate that it is only two days since that question was asked but this order, as the noble Lord said, is due to come into effect tomorrow. What, then, is the position in relation to the group’s Facebook page? This is the 13th order of this kind to be laid. Does the Minister know whether previously proscribed organisations had Facebook or any other social media pages and, if so, whether those pages have been taken down?

The consequences for a proscribed organisation are considerable for both the organisation and its adherents. It is a criminal offence for a person to belong to or invite support for a proscribed organisation. It is also a criminal offence to arrange a meeting in support of such an organisation, wear clothing or carry articles in public that arouse reasonable suspicion that an individual is a member or supporter. A proscribed organisation or any person affected by the proscription may apply to the Secretary of State for deproscription. If the Secretary of State refuses, the applicant may appeal to the Proscribed Organisations Appeal Commission. First, how many separate applications for deproscription have been made to the Home Secretary since the Terrorism Act 2000 came into force? Secondly, how many appeals have been made to, and been determined by, the Proscribed Organisations Appeal Commission over the same timescale?

Time-limiting proscription was recommended by the independent reviewer of terrorism legislation, David Anderson QC, who felt that a proscription order should be subject to a review after a fixed period, following which it could be renewed or would lapse. My final question is: what is the Government’s position on David Anderson’s recommendation?

[Lord Taylor of Holbeach]

My Lords, I hope that I shall be able to answer most of the points raised by the noble Lord, Lord Rosser. I appreciate his support for the order. I strongly believe that Imarat Kavkaz should be added to the list of proscribed organisations.

The noble Lord asked a number of questions. The first was about the internet and the relationship of this proscription and others to organisations such as YouTube and Facebook. We have been removing illegal terrorist content from the overt space where it is hosted in the UK or overseas and we have good relationships with those in the industry—for example, YouTube and Facebook. To date, the Counter Terrorism Internet Referral Unit, which the noble Lord referred to in commenting on the reply in the Commons, has removed more than 18,000 pieces of illegal material. This particular group’s Facebook page has been referred to the Counter Terrorism Internet Referral Unit. If it is assessed as illegal, the CTIRU will flag this directly with Facebook for removal.

The noble Lord also asked about applications for deproscription. There has been none since 2009, and indeed there have been no appeals to the POAC. There was one successful appeal in 2007-08 by the PMOI as a result of a judicial review of the case, as the noble Lord will be aware.

The noble Lord’s last question was about the recommendation made by David Anderson. We obviously take note of that, and indeed matters have been set up. In response to David Anderson, the Home Secretary said that under the current regime any person affected by a proscription can submit a written application to her requesting that she considers the removal of a specified organisation from the list. The Home Secretary is required to determine the application within 90 days. If the Secretary of State agrees to deproscribe an organisation, she will lay an order before Parliament removing it from the list of proscribed organisations. That is subject to the affirmative procedure, as is this order. The Home Secretary’s consideration of these matters following applications from the groups themselves is an effective process. There is a right of appeal and challenge, should the Home Secretary’s decision be negative. Any valid application for deproscription will be considered by the Home Secretary in accordance with the Act. I hope that that helps the noble Lord.

[Lord Rosser]

Does that response mean that the Government are not looking at going down the road of what I understand to be his recommendation—time-limiting proscription, which would be subject to a review after a fixed period, following which it could renewed or it would lapse? Are the Government not looking to doing that?

[Lord Taylor of Holbeach]

I have described the position, and I have a note here which helped me to do so. It presents the Home Secretary’s role and the Home Office’s view on the best way of dealing with deproscription, subject to application and considered within 90 days. In the event of a negative response there is a right of appeal. That is the current procedure and it would apply to any of the current 14 bodies that have been proscribed through the order.

Anti-social Behaviour, Crime and Policing Bill

Lord Rosser Excerpts

Wednesday 11th December 2013 Lords Chamber

[Lord Rosser (Lab)]

I should like to raise one or two questions about this proposal. As the Minister has said, the role that we currently associate with police community support officers is one of public reassurance through visible street patrols and, as again the noble Lord said, through community engagement, including engaging residents more actively in local policing. Indeed, in my own personal experience, on one occasion two police community support officers knocked on my front door—fortunately they were not there to take me away—to ask me what issues, if any, were causing me concern in my own particular locality. Presumably they were doing a survey of residents’ opinions about issues of concern to them. What we now have is a list of additional powers for police community support officers to issue mainly fixed penalty notices. It could therefore be argued that these powers will put police community support officers potentially into a more confrontational position with members of the public than perhaps we normally associate with their role at present.

As I understand it, under the original terms of this Bill it had not been the Government’s intention to make considerable additions to the powers of police community support officers. Indeed, in the letter that the noble Lord, Lord Taylor of Holbeach, kindly sent to us setting out the Government’s intentions in this amendment, he referred, as has the noble Lord, Lord Ahmad of Wimbledon, to Stephen Barclay’s amendment in the other place that led to the Government tabling a new clause, which I think is Clause 135, conferring powers on police community support officers to issue fixed penalty notices for cycling without lights. As a result of that, something led the Government to say, “Let’s have a further look at what additional powers we can give to police community support officers”. We now have before us a much greater list. The original Stephen Barclay amendment was one additional power, but now we have a long list of additional powers not just affecting cyclists and not just in connection with traffic-related powers; they go further than that. One could make a case for saying that this is beginning to change the role of PCSOs.

We are not standing here opposing this, but my question is this: what led the Government to believe that the extension of powers now being proposed—in Committee stage here, the Bill having been through the other place—is appropriate when they did not believe it to be so at the time it was drawn up and when, bearing in mind the title of the Bill, we can presume that virtually all issues related to policing and the powers of the police were in fact under review and up for consideration? I would be grateful for an explanation of why this has been brought forward at this stage, but was not considered appropriate when the Bill was being drawn up. I understand that these further powers are the Government’s own view of what they want to do and are not, subject to what the noble Lord, Lord Ahmad, may say to me in response, due to any particular pressure from someone. I can see why the Stephen Barclay amendment was made. He raised and then pursued it, and obviously Government Ministers said that they would accept it and take action.

Since it appears that these additional powers have been put forward at a pretty late stage, and therefore presumably over a short timescale, who has actually been consulted on this proposed extension? Has there been wide consultation with those who might have an interest in this change of approach? Have the police themselves been pressing for this extension for some time but to no avail, and now they find that, metaphorically speaking, they have hit the jackpot, because what they have been pressing for has now been agreed at a rather late stage in the proceedings?

I am putting these points as questions for the Minister and my final question is this. Since the Government have clearly now had a look at what additional powers it would be appropriate to give police community support officers, powers that begin to change the nature of the job—the operative word is “begin”—without taking away their former functions, are the Government now going to carry out a full review of the role and responsibilities of PCSOs? I ask this because what is now in front of us gives the impression, again subject to what the noble Lord, Lord Ahmad, may say in reply, of something that has been drawn up in quite a short time and is being put forward in the Bill now when it had not been the Government’s intention to do so not very many months ago when the Bill originally arrived in the House of Commons and throughout its passage through that place.

[Lord Paddick (LD)]

My Lords, I should like to say a few words arising from my policing background and experience. I support to some extent the noble Lord, Lord Rosser, in what he said, at least initially. Police community support officers, if they have a useful role, are seen by the police as a bridge between police officers and the community. Part of the reason they are able to perform that role is that they have very limited powers when it comes to enforcement. They can be seen as friends of the community and not necessarily come into conflict with it. As we know from what happened with traffic wardens when they were introduced, they in fact became the enemies of motorists. We certainly would not want to erode the useful role that police community support officers play in terms of being friends of the community and a bridge between the community and what it increasingly sees as enforcement officers; that is, police officers.

The second issue is the need to keep a very clear distinction between police officers and police community support officers. The recruitment standards and the training that police officers receive are far higher than is the case for police community support officers, particularly in the training of police officers in the use of discretion. If we are asking police community support officers to use their discretion as to whether they issue fixed penalty notices to erring motorists or cyclists, considerably more training needs to be given to them on the circumstances in which they should use that discretion. As I say, there is a clear danger that the distinction between the police and police community support officers will be eroded if slowly but surely we give police community support officers more and more powers.

Thirdly, there is already confusion in the minds of the public as to what police community support officers can and cannot do. When police community support officers arrive at the scene of an incident, the public look to them to act as police officers would, and are surprised to find that they do not have the powers or the ability to intervene in a way that the public expect of them. Gradually giving police community support officers more powers will add to that confusion among the public.

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[Lord Ahmad of Wimbledon]

My Lords, perhaps I may say first that when those PCSOs arrived at the door of the noble Lord, Lord Rosser, I am glad that they did not take him away. We would have been without his expertise and input in this Bill, so we are grateful for that. Equally, he made an important point in mentioning it. I come back to a point I made earlier: PCSOs are distinct from police officers, and I think I made that clear in my comments. What they do in terms of reassurance is something that the police themselves do. Again, speaking from my experience of working with neighbourhood teams when I was a local councillor, the police also did similar reassurance exercises.

I turn now to the specific questions that have been put to me. The noble Lord, Lord Rosser, asked why we are proposing this now. Of course, we are responding in line with the scrutiny of the Bill in the Commons. My honourable friend Stephen Barclay raised the issue, but it did go wider and beyond the specifics of his amendments. This is not something that the Government have only just thought about. I referred in my earlier comments to a Labour police and crime commissioner, Paddy Tipping, who wants us to go further. We have consulted on this and we have looked at the position with relevant experts in the field to understand the implications of the change. We have included discussions with the police at both the operational and the strategic level, the College of Policing, the partnership agencies and, indeed, national police leaders. As I said in my earlier remarks, this is about enhancing the powers of PCSOs and not about taking away from their engagement. We believe it is right that the engagement role performed by PCSOs is vital in making police accessible to all, and we do not want to overburden them with enforcement powers that would detract from that. That is why we have taken a considered position on these new packages.

The noble Lord, Lord Rosser, also asked whether we will consider more powers. These changes will mean a significant increase in the number of powers available for designation to PCSOs. That is an important distinction: this is not something that is carte blanche; it is right that the chief officers should have the freedom to take account of local circumstances and priorities when determining how their PCSOs are deployed. That will be the case in these additional powers that are being proposed. That is why we have taken the time to consider and, while we will be exploring a wider role for PCSOs, the Government believe that their particular role is being enhanced.

I hope that I have covered the specific questions asked by the noble Lord, Lord Rosser.

[Lord Rosser]

Were local authorities consulted?

[Lord Ahmad of Wimbledon]

There was not a general consultation with all local authorities but, in our consideration, as I have said, we talked to partnership agencies and national police leagues; that, of course, in some respects includes local authorities’ opinions. This is not trying to take away from local authorities: anyone who has worked at local government level knows that local authorities, the police et cetera all work in partnership in ensuring that we get the maximum level of reassurance.

I turn briefly to the points raised by my noble friend, who speaks with great expertise in this area. I would not in any sense seek to challenge that. I believe that the vital distinction remains between police officers and PCSOs. We are merely seeking to enhance the functions of PCSOs to allow them to engage more effectively in the community and to address the very issues he has raised about their effectiveness when they arrive at a particular point. Our proposals are a proportionate response to what is needed. It will help in community engagement and effective enforcement in respect of some of the lower-level issues that are raised. Neighbourhood policing will be in a better place for that. I beg to move.

--- Later in debate ---

Moved by

[Lord Rosser]

64C: After Clause 135, insert the following new Clause—
“Long-term police authorisation requiring independent approval
(1) The Regulation of Investigatory Powers Act 2000 is amended as follows.
(2) After section 32A (authorisations requiring judicial approval) insert—
“32AA Long-term police authorisations requiring independent approval
(1) This section applies where a relevant person has granted a long-term authorisation under section 29.
(2) The authorisation is not to take effect until such time (if any) as the relevant independent body has made an order approving the grant of the authorisation.
(3) The relevant independent body may give approval under this section to the granting of an authorisation under section 29 if, and only if, the relevant independent body is satisfied that—
(a) at the time of the grant—(i) there were reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation, and(ii) the relevant conditions were satisfied in relation to that authorisation, and(b) at the time when the relevant independent body is considering the matter, there remain reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation. (4) For the purposes of subsection (3), the relevant conditions in relation to a grant by an individual holding an office, rank or position in a relevant law enforcement agency, that—
(a) the individual was a designated person for the purposes of section 29,(b) the grant of an authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and(c) any other conditions that may be provided for by the Secretary of State were satisfied.(5) In this section—
“relevant law enforcement authority” means—
(a) a police force in the United Kingdom, and(b) the National Crime Agency;“relevant judicial authority” means—
(a) in relation to England and Wales, the High Court of Justice in England and Wales,(b) in relation to Scotland, the Court of Session, and(c) in relation to Northern Ireland, the High Court of Justice in Northern Ireland;“relevant person” means—
(a) an individual holding an office, rank or position in a police force in the United Kingdom, and(b) an individual holding an office, rank or position in the National Crime Agency.(6) In this section—
“relevant independent body” must be set out by the Home Secretary in a motion passed by both Houses of Parliament before this section is enacted;
“long-term” must be set out by the Home Secretary in a motion passed by both Houses of Parliament before this section is enacted.””

[Lord Rosser]

We indicated at Second Reading that we intended to propose a new clause on this issue since it was clear that action had to be taken to address how covert policing operations were authorised and managed. Of course, we support undercover policing, since such operations are a vital part of the fight against organised crime and terrorism and are essential in keeping communities safe. We recognise the dedication and bravery of those officers who undertake this work. However, any such operations must be subject to the highest ethical and operational standards. That is essential for both their operational effectiveness and public confidence. Our amendment today, therefore, seeks to deal with the issue of accountability.

There are two cases that highlight how important it is that changes of the kind that we are proposing are made. The first is the case of Mark Kennedy who, as a police officer, infiltrated—I think that is the word—protest groups over a period of years: groups which said that they were involved in lawful demonstrations, rather than crime. The former policeman, it appears, had relationships with women in the protest movement and travelled to eco-protests across Europe. He later told a Channel 4 documentary of his remorse, including his regrets about and feelings for a woman with whom he had had a long affair. HMIC reviewed the activities of Mark Kennedy and other undercover officers and stated that his actions had led to the collapse of a trial of environmental protesters and that he had “defied” management instructions. The report found that Mr Kennedy had helped to unearth “serious criminality”. However, Mr Kennedy said that, while the subject had never been broached directly, it was “impossible” that his superiors had not known he was having a sexual relationship with some protesters. The report suggested that an independent body might be required to authorise such undercover operations. It also said that Mr Kennedy was inadequately supervised and that oversight of undercover officers needed to be strengthened.

The second case is that of the Lawrence family. Twenty years ago, Stephen Lawrence was murdered at the age of 18. He was, of course, the son of Neville and Doreen, who is now my noble friend Lady Lawrence of Clarendon, a Member of your Lordships’ House. Stephen was cruelly murdered by racists and there was evidence of racism in the way the police inquiry was conducted. Serious allegations have now been made that the police spied on the Lawrence family with a view to discrediting them. Peter Francis, a former undercover police officer and a member of the somewhat controversial Special Demonstration Squad, has spoken of his activities as part of an operation to spy on and attempt to smear the Lawrence family.

These two cases and other incidents have led to serious concerns about the accountability of the undercover police operations that were undertaken and raised questions about the accountability of future undercover police operations. Our amendment seeks to ensure that all long-term undercover operations are signed off by a relevant independent body, to ensure that, where needed, covert operations are used proportionately, sensitively, only when necessary and with clear and improved accountability arrangements. Additionally, we do not currently have effective oversight of these operations. There are various options we can explore and we hope that the Government will look at these options carefully. Judicial oversight is just one that could be considered.

There also appears to be an anomaly, because currently, if the police or security services want to enter—perhaps to break in, to bug a room or to intercept a phone call—they need justification that to do so is in the interests of national security in order to get a warrant. Attaining a warrant requires judicial approval. However, those undercover police officers who entered into relationships in an attempt to retrieve certain information needed no warrant.

Of course—and we appreciate this—undercover operations vary. Some will be as short as an hour or so and may involve relatively minor matters; it would be impractical to ask for independent approval for all such operations. However, our proposed new clause is intended to target long-term covert police operations, and these can span from six months to 12 months or even several years. When such operations are undertaken, there needs to be clarity about the goals, the methods and the priorities. Therefore, there should be independent approval prior to any such lengthy operation. It does not necessarily have to come from a judge, but it must be truly independent, and the very process of seeking such approval would help to ensure proportionality, and clarity of objectives and methods. Our proposed new clause would help to ensure that operations such as the hugely inappropriate and totally wrong campaign against the Lawrence family cannot take place again. That campaign and operation against the Lawrence family showed appallingly bad judgment. Surely, we all want to ensure that any operation undertaken is accountable, justifiable and in the wider public interest.

On Report in the other place, the Minister Damian Green stated that it was the Government’s,

“intention to legislate to enhance oversight of undercover law enforcement officer deployments”,

and this could,

“be done through secondary legislation”.

He outlined the Government’s proposals to increase accountability and oversight. However, proper scrutiny is necessary and we need the opportunity to scrutinise those proposals as part of this Bill. Damian Green promised in the House of Commons that he would,

“lay the appropriate order before the House shortly”.—[Official Report, Commons, 15/10/13; col. 634]

As I understand it, we have not yet seen the order, although I may be wrong in saying that. However, we feel that it would be much better to deal with an issue of this importance in what the Government regard as a flagship Bill on crime and policing. I hope the Minister, when he replies, will be able to give a helpful response.

[Lord Taylor of Holbeach]

My Lords, I am very grateful to the noble Lord, Lord Rosser, for tabling this amendment because I agree with him that the whole question of undercover policing is very important. I do not think that any noble Lord should be in doubt that covert techniques, including undercover policing, are an important weapon in the fight against terrorism and other serious and organised crime. Undercover police officers play a crucial role in keeping us all safe. It is difficult and dangerous work and I welcome this opportunity to pay tribute to all who undertake it.

The new clause proposed by the noble Lord seeks to introduce a system of independent authorisation for undercover policing operations. I do not believe there is any great difference of view between the noble Lord and me on this point. We both believe that there must be proper safeguards to ensure that these covert techniques are used only where appropriate and that the mechanisms for approving all such deployments are fit for purpose. However, I hope that it will help noble Lords if I set out why I do not believe that this amendment is required, not least because the Government have already instigated changes that are designed to meet the concerns that have arisen in the light of some allegations of past misconduct, which were sympathetically described by the noble Lord, Lord Rosser.

Undercover deployments are authorised under the Regulation of Investigatory Powers Act 2000, commonly known as RIPA, which stipulates that the use of an undercover deployment can be authorised only at a senior level within the police force or other law enforcement agency concerned. In giving an authorisation, the authorising officer must balance the seriousness of the crime being investigated, and the value of the evidence likely to be gathered, against the right to privacy of the person under investigation and of those others who are likely to have their privacy intruded upon, such as family, friends and other associates.

Her Majesty’s Inspectorate of Constabulary conducted a rigorous and independent review of undercover policing last year and made a number of recommendations to improve the way authorisations and deployments are made. Earlier this year, the inspectorate reported on the progress made in implementing its 2012 report and was generally positive about the work already done. The noble Lord referred to the role played by my ministerial colleague, the Minister for Policing, Criminal Justice and Victims, the right honourable Damian Green, who announced to the Home Affairs Select Committee our intention to strengthen this regime to enhance oversight of undercover law enforcement officer deployments. I am pleased to say that the order to give effect to this commitment was laid in October and is due to take effect on 1 January next year.

I will set out the effect of the changes that the Government are bringing forward. First, law enforcement agencies will need to notify the surveillance commissioners —all retired judges—of undercover deployments. In practice, what will happen is that a surveillance commissioner will see the same papers that were presented to the authorising officer and will have the opportunity to raise any concerns. Noble Lords will appreciate that most deployments are short-term in nature and, in many cases, last no more than a few hours. However, some are long-term, and these may give rise to the greatest concern. Initial authorisations last for a maximum of 12 months. Accordingly, the second change we are putting in place is that an authorisation can be renewed beyond 12 months only with the prior approval of a surveillance commissioner—who, I remind your Lordships, is someone who has held a senior judicial office.

In addition, we are increasing the rank of the authorising officer. Deployments of undercover law enforcement officers will henceforth need to be authorised at assistant chief constable level or equivalent. Any deployments lasting longer than 12 months will be authorised by a chief constable or equivalent, as well as by a surveillance commissioner, as I have already explained. The seniority of those who will now be required to authorise these deployments is an indication of how seriously the Government take proper oversight of undercover law enforcement activity. We believe that these changes will promote the highest standards of professionalism and excellence in this most sensitive area of policing. We also believe that they will achieve the aims of this proposed new clause by ensuring judicial scrutiny of long-term deployments while preserving the flexibility of law enforcement agencies to act swiftly where necessary.

Covert activity is a necessary part of the armoury of law enforcement but it is absolutely right, as is the intention behind this amendment, that it must be properly controlled and regulated. That is why the Government are making the changes that I have described. In the light of these changes and the new regime that we are now putting in place, I do not believe that this amendment is required and I hope the noble Lord will withdraw it.

[Lord Rosser]

I shall of course withdraw the amendment but, before I do, I have one question for the noble Lord. Does the proposal that is to be implemented in relation to the role of the surveillance commissioners also include, for particularly lengthy covert operations lasting many months, any sort of regular oversight of the operation by the surveillance commissioners, or is it a case of getting their approval beforehand and, once that prior approval has been given, that is the end of the independent oversight?

[Lord Taylor of Holbeach]

The prior approval is of course designed to make sure that there is no extension without the surveillance commissioner being a party to the decision. I cannot give the noble Lord a clear answer on this but I would suspect that the surveillance commissioner could make his approval dependent on an update at some point during the extended 12-month period. I will write to the noble Lord and give him some indication of how this would operate. I understand entirely what he is getting at and am quite happy to investigate and provide that to him.

[Lord Rosser]

I thank the noble Lord for his reply and for his offer to write to me on the issue that I have just raised. I will obviously want to reflect on the reply that we have received but I beg leave to withdraw the amendment.

Amendment 64C withdrawn.

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We have already discussed the introduction of the leave-to-appeal requirement of the person to comply with the appeal deadline, but it should also be taken into account if the leave requirement is to be introduced. If the proposal set out in paragraph 10.14 of the Baker review is followed, with leave to appeal being sought and granted or refused on paper, the drafting needed to produce the leave application could become more onerous, complex and time-consuming than for the current notice. It is therefore proposed that the timeframe flexibility introduced in the amendments to Sections 26(5), 103(10) and 108(5), as amended in accordance with paragraph 4.1 above, be retained but that the permitted period in Section 26(4) should also be extended to 14 days. This would follow the recommendations of the Baker review at paragraphs 11.75 to 11.76. I beg to move.

[Lord Rosser]

My Lords, I will be brief with what has been described as my blunt instrument on Clause 141. I will not repeat the detailed arguments put by the noble Lord, Lord Hodgson of Astley Abbots. As he said, Amendments 88 and 90 seek to preserve the automatic right to appeal against an extradition order by deleting provisions in the clause that would make the ability to appeal against an order subject to obtaining the permission of the High Court. Essentially, it appears that the Government are now proposing to remove a key safeguard for individuals at risk of extradition by repealing the automatic right of appeal. We have real concerns about this change, which of course removes safeguards for UK citizens.

The automatic right of appeal is a key safeguard against the wrongful extradition of individuals, which allows them to raise new evidence that was not available at the time of the extradition hearing or to challenge the decision of the original judgment. It was surely this automatic right of appeal that allowed Gary McKinnon and his family to challenge the initial decision to extradite him to the US, leading ultimately to the decision not to extradite him at all. Without the right of appeal, he might have been extradited without any further consideration of the evidence, old or new, showing that extradition posed a serious risk to his right to life. Indeed, in the Statement that the Home Secretary made on 16 October 2012, she specifically referred to this issue when she said:

“After careful consideration of all of the relevant material, I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights”.—[Official Report, Commons, 16/10/12; col. 164.]

Yet, subject to what the Minister may say, the Government appear to be introducing changes to the Act that would mean that if a similar case occurred after this Bill had been passed, the Home Secretary would not be able to make the same decision.

Clause 141 amends Sections 26 and 108 of the 2003 Act to provide that an appeal will lie only with permission from the High Court, and no indication is given in the Bill of what criteria will be used to decide whether permission should be granted. I hope that the Minister will be able to indicate the reason for the Bill being so vague over an issue—namely, the criteria—that could have significant human rights consequences. What in fact do the Government expect the criteria to be, do they expect them to be evidence-based and will they be available for scrutiny? What impact do the Government believe any likely criteria will have on the number of cases able to be appealed?

Once an individual has been extradited, of course, there is virtually nothing that can be done if new evidence arises to show that that was not the appropriate or fair decision and was contrary to the interests of justice or their human rights. Does the Minister not agree that, because of that, it is crucial that people effectively have an automatic right to appeal against a decision to be extradited, or at least some other means of ensuring that justice is done, and that we do not end up in a situation which, frankly, does our own extradition system no credit?

I cannot vouch for this personally, but Liberty says that extradition experts are of the view that a large number of cases that have been successful on appeal probably would not have been granted leave under the Bill. Removing the right of automatic appeal will potentially have considerable human rights and legal implications. If the Minister cannot offer some movement on this issue when he replies tonight, I hope that he will at least be able to explain why the Government appear to be taking such a major backwards step, having previously placed such emphasis on their concern for Gary MacKinnon’s human rights.

[Lord Taylor of Holbeach]

My Lords, as my noble friend has explained, Clause 141 makes the right of appeal against a decision to order extradition subject to the leave of the High Court. Similarly, it makes the requesting state’s right of appeal against a decision to discharge a person from extradition proceedings subject to the leave of the High Court. Clause 141 also allows the requested person to make an application for leave to appeal out of time in certain circumstances. This does not apply to the requesting state.

The noble Lord, Lord Rosser, using his blunt instrument, gives me the opportunity to broaden the debate beyond the immediate amendments and explain how this process will work and why the Government feel justified in introducing Clause 141. My noble friend Lord Hodgson, in tabling his Amendments 88 and 90, challenges us on why we are making these changes. At present, a person has an automatic right of appeal against a decision to order his or her extradition, and the requesting state also has an automatic right of appeal against a decision not to order extradition—an important factor to bear in mind.

As noble Lords are aware, the Government commissioned a review by Sir Scott Baker of the UK’s extradition arrangements. One of the key findings of his review was that the success rate of appeals was extremely low: less than 13% in 2010. In other words, the court system is burdened by unmeritorious appeals, a fact to which my noble friend Lord Hodgson referred, which then delay hearings for all appellants and means that justice is deferred. Clause 141 addresses this problem by making appeals subject to permission from the High Court. This filter applies to appeals against, for example, a judge’s decision to order extradition to a Part 1 territory, that is, another member state; a judge’s decision to send a case to the Secretary of State to consider extradition in Part 2 cases, that is, where the requesting country is not an EU member state; and to a decision by the Secretary of State to order extradition in Part 2 cases. To provide parity, it also applies to appeals against decisions to discharge a person.

My noble friend Lord Hodgson asked what sort of issues a court would consider in deciding whether to allow an application to be heard. This will be, as one would expect, a matter for the judge concerned. They will, of course, give full consideration to all the relevant factors raised by the appellant before reaching a decision. We do not think that they are appropriate to be set out in legislation, as it is a matter for the court itself to consider. I understand that noble Lords will have questions about what safeguards will be available. Let me reassure noble Lords that this provision does not prevent anyone from applying for permission to appeal. Once an application has been made, the High Court will decide which cases proceed to a hearing, but each application will be considered by a High Court judge. Furthermore, Clause 141 sets out that the High Court must not refuse to entertain an application for leave to appeal by the requested person solely because it has been submitted outside the normal time period, if the person did everything reasonably possible to ensure that the notice was given as soon as it could be.

That point brings me to the matters that my noble friend Lord Hodgson raised in relation to this in his Amendments 88A, 89, 91 and 92. My noble friend proposes to amend Clause 141 to insert a requirement for the courts to allow an appeal to be made out of time if it is in the interests of justice to do so. As I said, Clause 141 allows the High Court to hear an out-of-time appeal where the person has done everything reasonably possible to bring the appeal as soon as possible. Our approach follows that of the Supreme Court, which ruled last year that out-of-time appeals should only be considered exceptionally. We believe that this provision gets the balance right: the timetable for an appeal is clear and there must be an onus on an appellant to meet the statutory requirements, as happens in the vast majority of cases.

My noble friend is also proposing to extend the time limit for appeals in Part 1 cases from seven days to 14 days. As he has explained, this was one of the recommendations that Sir Scott Baker made in his review of our extradition arrangements. We have therefore considered it very carefully in developing the provisions in the Bill. Our view is that extending the time limit in this way would have no practical effect beyond increasing the likelihood for delay. As I said, we have introduced new protections where people are unable to submit their appeals on time through no fault of their own. We believe that this new provision will address the concerns raised by my noble friend, and indeed by Sir Scott Baker, on this issue.

What safeguards will exist under these new provisions? We do not believe that we are removing any existing safeguards. We need to get the balance right between ensuring proper protection for those subject to an extradition request while ensuring that people do not delay their proper surrender by burdening the courts with unmeritorious appeals. We believe that this approach gets these matters right. The court itself will decide the issues and the relevance of any out-of-time considerations.

The changes set out in Clause 141 will allow the courts to focus their attention on the right appeals, removing the burden of unmeritorious appeals while ensuring that proper safeguards are in place for those subject to extradition. I commend the clause to the Committee and I hope that my noble friend will be prepared to withdraw his amendment, and that the noble Lord, Lord Rosser, will see the merit in the clause.