Anti-social Behaviour, Crime and Policing Bill

Lord Rosser Excerpts

Tuesday 29th October 2013 Lords Chamber

[Lord Rosser (Lab)]

My Lords, this has been a lengthy but interesting debate in which there have been many powerful contributions based on direct first-hand knowledge and experience of specific issues and areas which the Bill seeks to address, not least from the noble Lord, Lord Paddick, in his considered and eloquent maiden speech. We wait with interest to hear on a later occasion, as indicated by the noble Lord, which aspects of the Bill he regards with less enthusiasm.

During this debate, many doubts and reservations have been raised about specific aspects of the Bill, and these will no doubt be pursued in Committee and on Report. The Bill is either wide-ranging or a dog’s breakfast, depending on one’s overall view of it. The Government have tried to give this possible Pandora’s box of a Bill a theme in a bid to generate an appearance of cohesion to their proposals. That theme appears to be putting victims first. That can certainly be an objective, but surely the overriding purpose of a Bill such as this should be to reduce the number of victims.

There is much in the Bill that we support. We support the new criminal offence for possessing a firearm with intent to supply. We support the initiative on a new College of Policing, which will afford an opportunity to provide training and to set standards. We also support in principle the police pay and negotiation proposals and the Police Remuneration Review Body. The Minister referred to the Armed Forces Pay Review Body as a favourable comparison. Interestingly and perhaps wisely, he did not quote the body for the Commons, IPSA, as being in that category as well. We support extending the powers of the Independent Police Complaints Commission to oversight of private contractors and staff employed by police authorities—a measure proposed by the Opposition last year.

The measures on forced marriage have cross-party support. We also welcome the measures on sexual harm prevention notices, although there will be issues that need to be discussed regarding the detail.

We support giving immigration officers some additional powers in the light of the nature of terrorism that we have at the moment, but once again the detail of how and in what circumstances the proposed measures will be implemented, their nature and how far they go will need to be considered carefully.

We support the principle of community remedy under Part 6. We strongly believe that restorative justice and community resolutions should be used when dealing with anti-social behaviour, although the Government will need to be rather clearer about exactly what they intend should happen in practice and what resources are going to be made available.

We will want to look at the proposed changes in the powers of police community support officers. That applies as well to the changes for police and crime commissioners, for whom the Bill seems to be trying to provide additional work. We will look at the clauses on witness protection measures and victim services but we, like others in your Lordships’ House, have concerns about their fragmentation through commissioning by police commissioners and the impact that that will have on national commissioning and standards.

We welcome the measures against dog attacks in the home. However, on dog control notices, there is the significant question of whether the measures in the Bill are sufficient to address the problem with which we are faced. The Government say that they are, but the Committee in the other place described the proposals as “woefully inadequate”. Dog control notices would ensure the muzzling of dogs in places which the public access, the neutering of dogs and the owner and dog having to attend and complete training courses.

I suspect that a considerable amount of time will be taken discussing the anti-social behaviour proposals. We all deplore anti-social behaviour and the impact that it can have. However, we do not regard the proposed changes to the anti-social behaviour order regime or the developments on the injunctions to prevent nuisance and annoyance—IPNAs—as helpful or a forward move. The Government assert but have yet to produce the hard evidence that anti-social behaviour orders have not been an effective solution and claim, once again without hard evidence, that the lack of criminal sanction in future under this Bill will not weaken but rather strengthen the ability to tackle anti-social behaviour. It was, after all, the Minister who told us in his opening speech that crime had been falling—falling, he could have added, each year since ASBOs were introduced.

We will need to look at what will be regarded as behaviour capable of causing nuisance or annoyance. Some people seem to find the decisions of a referee at a football match annoying, and it is not unknown for some landowners to regard walkers on a footpath through one of their fields as a nuisance. I assume that the Government will say that at least the first example is a ridiculous one and would not come within the terms of the wording in the Bill. But I am not so sure about the Government’s view on the second example and that those responsible will interpret the wording in the Bill and the associated guidance in a sensible manner.

Different people will interpret generalised or ambiguous wording in a different way. There does seem to be a clear message being given by the change in the criteria from behaviour causing, or being likely to cause, harassment, alarm or distress, as at present for an anti-social behaviour order, to behaviour causing nuisance or annoyance for the new IPNA, and in the change in the burden of proof from beyond reasonable doubt to balance of probabilities. That message is surely that the Government want much more behaviour—some would say including normal behaviour of many young people—to be liable to be caught under the terms of the IPNA with a much lower threshold necessary to establish and prove the case. That is a message that could result in IPNAs being issued, metaphorically speaking, like confetti for little or no meaningful effect.

We will also want to be clear about the possible consequences of a breach of an IPNA. I appreciate that the Government made some amendments on Report in the Commons, which mean that the ability to exclude a person from his or her own home will be available across all tenures and not just to the social housing sector. I am not sure that this principle applies in other circumstances. It appears that for those living in rented housing a breach of an IPNA could result in eviction. If that is the case, could the situation then arise that a family in rented housing could be evicted following a breach of an IPNA by one member of the family on the basis that the conduct of that individual was making life intolerable for nearby neighbours living in owner-occupied property, but that if a family next door who owned their own home also had one member of the family who had breached an IPNA, and the conduct of that individual was making life intolerable for nearby neighbours living in rented housing, they would not be evicted? Perhaps the Minister could say whether that could or could not be the case under the breach of an IPNA clause in the Bill. If it could happen, could he say whether the Government do or do not believe that these clauses potentially treat some sections of the community rather differently from others for the same offence? The same issue would appear to arise in connection with possible eviction for those in rented housing who have been convicted of an offence at and during a riot, wherever that involvement might have taken place. The Government say they want to put resources into sorting out the problems that overwhelm so-called problem families. I am not sure that that objective will be assisted if the ultimate effect of the IPNA proposals in this Bill proves to be that more such families end up on the streets.

We have received from the Government a copy of the draft guidance for front-line professionals on the proposed reforms of anti-social behaviour powers in this Bill. It is 65 pages long and, in places at least, appears to be strong on verbiage and weak on clarity. It bears all the hallmarks of having being written by a committee lacking unanimity of view. However, at this stage, I am willing to accept that during the passage of this Bill the Minister may be able to convince us all that this is a document free of ambiguity and in essence is not so ambiguous that it basically hands over to others the job of trying to interpret what this Bill actually means.

I may have misunderstood, for example, the wording on injunctions to prevent nuisance and annoyance. If I have I am sure the Minister will put me right. I would hate to think that he is as uncertain as I am about the exact meaning of parts of this Bill, since this Bill is his baby. Page 24 states:

“Anyone seeking to apply for an IPNA must have evidence … that the respondent has engaged in, or is threatening to engage in, conduct capable of causing nuisance or annoyance to another person. They will also need to satisfy the court that it is just and convenient to grant the injunction”.

Later, the same page states that,

“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not”—

and “should not” is in bold—

“be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities”.

If one of the tests that the guidance indicates is that behaviours must have caused or be likely to cause harm to victims or communities, then why does the Bill not refer to causing harm and clearly define it—causing harassment, alarm or distress, for example—rather than simply referring to conduct causing nuisance or annoyance? There is a difference between causing nuisance and annoyance and causing harm. Which is correct: the Home Office Bill, the Home Office guidance or neither? Are the Government simply passing the buck for sorting that out to someone else, whether they be sitting in a court or working outside one?

There are a number of other issues we will want to discuss as the Bill goes through this House. These include measures to tackle covert policing, protection of people from assaults at work, reductions in the potential for gun use and reductions in domestic violence. We will also want to discuss the issue of legal highs and reducing their availability in our communities, and the redefinition of the compensation test for those who have been wrongly convicted.

The important issue of extradition was dealt with in a rush towards the end of the proceedings in the House of Commons. One government MP, lamenting this, said:

“Of course, the House of Lords is stuffed full of experts—lawyers and others who are au fait with the issues—and I am sure that there will be proper scrutiny in the other place”.—[Official Report, Commons, 15/10/13; col. 697.]

That is probably one expectation that we can meet, including whether the proposals are fair and just, will actually deliver the declared objectives and not also have some potential unintended consequences.

The Government’s proposals on anti-social behaviour in particular will need to be backed up by adequate and appropriate resources, both human and financial, if anything is to be achieved. Other proposals will also depend on proper resourcing being provided. Bearing in mind the cuts that have been made in a number of key areas, such as weakening the DNA provisions, reducing CCTV, reducing police numbers, reducing community safety budgets, leaving local authorities financially less able to maintain youth services, and now, it appears, the potential undermining of the Secured by Design standards, to which my noble friend Lord Harris of Haringey has drawn attention, we will want to find out from the Government as we consider the Bill in detail whether their proposals are simply words or whether the necessary resources and powers will be provided—and, if so, in what form and to what level—to deliver the claimed objectives for the many changes set out in the Bill.

Police and Criminal Evidence Act 1984 (Amendment: Qualifying Offences) Order 2013

Lord Rosser Excerpts

Tuesday 15th October 2013 Grand Committee

The order also adds certain offences involving homicide, such as war crimes, infanticide and child destruction, to the list, for consistency with murder and manslaughter which are already qualifying offences. It also adds rioting and female genital mutilation because of the seriousness of those offences. This is a practical measure, as I hope that I have demonstrated, to remove some anomalies in the existing legislation which I hope will command the Committee’s general support. I beg to move.

[Lord Rosser (Lab)]

I thank the Minister for his explanation of the terms and purpose this order. As he said, the rules relating to the retention of DNA samples by the police were changed under the Protection of Freedoms Act 2012 in the light of a European Court of Human Rights judgment. On this side, we felt that the changes pushed through by the Government went further than necessary. Currently, if a person is convicted, their DNA can be held indefinitely, except in a few specific types of case. Under the provisions of the 2012 Act that come into force at the end of this month, people arrested for, or charged with, qualifying offences but not convicted may have their DNA and fingerprints retained for a specified period. Those of people arrested but not charged may be retained for three years if the Biometrics Commissioner agrees. In the case of those charged, they will be retained automatically for three years. As the Minister said, qualifying offences are the more serious ones, which are mainly sexual and violent. As I understand it, the order ensures that offences under previous legislation that has now been repealed are included, so that biometric information can be taken where appropriate. The order provides also for those additional offences to be designated as qualifying offences, which addresses the issue of how long the biometric information can be retained. As the Minister said, the order adds further offences to the list of qualifying offences.

The issue that I will raise regards the actions that the Government may have been taking or not taking prior to the coming into force of the 2012 Act. It appears that police forces were told last year to start deleting DNA samples in order to comply with the provisions of the Protection of Freedoms Act 2012 that relate to the circumstances under which, and the length of time for which, such samples can be retained after this month when the provisions of the Act come into effect. However, the Government do not appear to have put into effect any interim arrangements to cover the fact that the appeals arrangements to the Biometrics Commissioner that the police can use when they do not think that it is appropriate to delete a sample in accordance with the provisions of the Protection of Freedoms Act 2012 were not in place, and do not come into effect until the end of this month.

Likewise, the arrangements for when the police feel that national security will be an issue if a DNA sample is deleted and so make their own determination not to delete such a sample do not come into effect until the end of this month. It appears that no interim arrangements were made to cover this situation, bearing in mind that the police were told last year to start deleting samples in accordance with the pending legislative requirements of the Protection of Freedoms Act. Under the 2012 Act, the police can make such a determination, which must then be reviewed by the Biometrics Commissioner. However, the powers of the commissioner do not come into effect until 31 October this year.

Apparently, the police have already deleted hundreds of thousands of DNA profiles and samples. A figure of 600,000 was mentioned. Why were they told to do so when the DNA retention arrangements were not in place? Or did Ministers have informal arrangements in place under which they would make a decision on whether the police could retain a DNA sample for longer than the time provided for in the 2012 Act, pending the coming into being of the Biometrics Commissioner and his or her statutory powers? Did Ministers make informal arrangements to address national security considerations by allowing the police to retain samples for longer than the time provided for under the 2012 Act, under which they would have to be deleted to comply with the terms of the Act and its provisions, which would take effect from 31 October 2013? As I understand it, the powers of the police to make their own determination in such cases, subject to review by the Biometrics Commissioner, do not come into effect until 31 October of this year.

When the order was discussed in the House of Commons last week, the Home Office Minister responding was asked if there were any examples of the police not being able to keep DNA samples when they wanted to. He replied that,

“the process for the implementation of the Protection of Freedoms Act 2012 … has been worked through closely with the police and other partners”,

and that he was,

“unaware of cases in which the police have expressed a desire to apply in this way. Indeed, the police clearly have the right from 31 October to make such an application to the Biometrics Commissioner”.—[Official Report, Commons, First Delegated Legislation Committee, 9/10/13; col. 8.]

I am not sure whether the answer to the question of whether there were any examples of the police not being able to keep DNA samples when they wanted to is yes or no, but it is to be hoped that the Minister will be able to throw some light on it since I am asking the same question of him.

The other interesting part of the reply from the Commons Minister was the statement that from 31 October the police clearly have the right to make such an application to the Biometrics Commissioner. That rather accepts that they do not have such a right until 31 October, which is precisely the point I am raising; namely, how have the police, faced with being told last year to start deleting DNA samples that cannot be retained when the terms of the Act come into force at the end of this month, been able to apply since last year for the retention or extended retention of samples which they deem it necessary to keep but which cannot be retained under the terms of the 2012 Act when it comes into force at the end of the month and when the procedure for enabling such applications to be pursued through the Biometrics Commissioner under the provisions of the Act do not come into effect until the end of the month? The effect of the Government’s actions appears to be that, for example, the police have been unable to retain or even apply to retain the DNA of someone arrested but not charged with serious offences such as rape, the sexual assault of a child or manslaughter since at least December 2012, and this government-created loophole lasts until the end of this month.

The Government had pledged that the police would be able to apply to the Biometrics Commissioner to retain DNA if, for instance, the victim is under the age of 18 or,

“the retention of the material is necessary to assist in the prevention or detection of crime”.

However, the mechanism for such appeals has not yet been brought into being by the Home Office, and rather than allowing the police to hold these data until the legislation has been implemented, the DNA records are apparently being deleted. Will the Minister indicate at what level within the Home Office the decision to proceed with the deletion of DNA records for those arrested but not charged with a qualifying offence was discussed and then made? Will he say how many police forces have ignored the demands to delete DNA samples in the interim period prior to the coming into force of the relevant provisions of the 2012 Act? Further, how many DNA records have been deleted, and what impact has this had on policing capability? Alternatively, will the Minister indicate that there is no truth at all in the matters I have raised? As regards the Home Office e-mail published by the Times as stating: “This record”—of someone arrested but not charged with rape—“will have been deleted as a part of the legacy deletions for stage 1a. As the individual was NFA’d and for legacy data, forces cannot apply to the Biometrics Commissioner for an extension, this will only happen from 31 October 2013”, will he indicate whether that was incorrect or was addressing a completely different and unrelated issue?

These are potentially quite significant issues around what has been happening during the interim period between the end of last year and the coming into force of the provisions of the Act. I accept that what I am saying may not be correct, but it is an issue that we on this side have raised before in the other place, and we do not seem to have had very specific answers to address our concerns. I hope that the Minister may be able to do so when he comes to reply.

[Lord Taylor of Holbeach]

My Lords, the noble Lord will know that the policy to delete the DNA records of innocent people is something that has been widely welcomed around the House and, indeed, by the Opposition. That work has been going on. It has created a gap which the noble Lord has pointed to; I have to acknowledge that. However, the Government and the police, in considering the management of the issue, have come jointly to the conclusion that there would be no retrospective applications to the Biometrics Commissioner. That is because to have done so would have required police scrutiny of the case file of every innocent person arrested for a qualified offence in the past three years. That is reckoned to be 180,000 case files. This was considered disproportionate to the circumstances which the new legislation is designed to address because, according to our knowledge of those files, it would have identified only a very small number of cases suitable for application to the Biometrics Commissioner. It would have significantly delayed the entire programme to delete innocent people from the databases. I do not think that the Government are seeking to make an apology for that decision, because we consider that Parliament’s wish was that the DNA of innocent people should indeed be deleted from the database.

[Lord Rosser]

Was it not also Parliament’s wish that there should be an appeal mechanism in existence before that happens? It does not come in until the end of this month.

[Lord Taylor of Holbeach]

That is exactly what is being put in place.

[Lord Rosser]

Why did the Government not abide by Parliament’s wishes and not bring it in until the appeal mechanism was there, since Parliament wished that there should be one?

[Lord Taylor of Holbeach]

Because the deletion of DNA had been agreed by Parliament. The Government have been under considerable timetable pressure on that. As a Minister, I have been very much involved with the deletion of DNA records and that programme was under considerable pressure to be effected. We have had debates in the House on this matter, widely supported by the Opposition.

[Lord Rosser]

But was it not agreed by Parliament on the basis that there would be an appeal mechanism in place to which the police could refer cases if they had doubts about deleting them? I understand what the Minister is saying about the Government wanting to implement government policy in the form of legislation, but did that legislation not also provide for an appeal mechanism? That was a fundamental part of it.

Immigration Rules: Impact on Families

Lord Rosser Excerpts

Thursday 4th July 2013 Lords Chamber

[Lord Rosser]

My Lords, in view of the difficulty that I created in the previous debate by sitting down sooner than the Minister expected, perhaps I should say to him that I am not sure that I will take up all my allocated time on this occasion either.

I thank the noble Baroness, Lady Hamwee, for giving us the opportunity to have this debate and to discuss the report of the inquiry launched by the All-Party Parliamentary Group on Migration. We have heard some powerful and passionate speeches, which I will not even attempt to emulate.

As has already been said, immigrants have benefitted Britain over a great many years. They have come to our shores to help build and develop some of our major companies, as well as sustain our National Health Service and win us Nobel prizes. It is because immigration is important that it needs to be controlled, and its impact needs to be fair for all. We need to build common bonds, including more emphasis on speaking English.

We also need to draw the distinction between immigration that works for Britain and immigration that does not. That is why we support policies to bring down the pace of migration, particularly low-skilled migration, and why we support stronger controls on people coming to do low-skilled jobs.

However, some changes that are made to immigration rules can have unfortunate consequences, and today we are discussing one such change—a significant one. In July last year, as we know, major changes to family-related immigration categories came into effect. With limited exemptions, British citizens or settled persons wishing to sponsor their non-EEA national spouse or partner to join them in the UK must now demonstrate a minimum gross annual income of £18,600, and more if they are also sponsoring dependent children. New foreign spouses or partners must also wait for five years rather than two, as previously, before they become eligible to apply for permanent settlement in the UK. More restrictive eligibility criteria have also been introduced for adult dependent relatives of British citizens who wish to settle in the UK.

Last year the Government anticipated that the change would result in, I believe, up to 17,800 fewer family visas being granted every year, arguing that keeping the bar high for family migration could result in savings to the welfare bill. At the time, we expressed our support for strengthening the family migration rules to protect UK taxpayers and said that if people want to make this country their home, they should contribute and not have a negative impact on public funds. However, we cast doubt on the Government’s approach that focused so much on the sponsor’s salary, and said that there needed to be a fair framework for those who fall in love and build family relationships across borders.

The report from the All-Party Parliamentary Group on Migration on these new family migration rules, which has just been published, has already been referred to extensively. It highlights the impacts of recent rule changes on ordinary British citizens hoping to build a family in the UK with a non-EEA husband, wife or partner. Among the report’s key findings were that some British citizens and permanent residents in the UK, including people in full-time employment, have been separated from a non-EEA partner, and in some cases their children, as a result of the income requirement.

In addition, some British citizens and permanent residents have been prevented from returning to the UK with their non-EEA partner and any children, again as a result of the income requirement. In some cases the non-EEA partner was the main earner with a medium or high salary, but that could not be counted towards the income requirement under the new rules. On top of all this, the report found that some children, including British children, have been indefinitely separated from a non-EEA parent, once again as a result of the income requirement.

It looks as though the doubts raised about the Government’s approach, which was focused so heavily on the sponsor’s salary, have, unfortunately, been proved right. Among the recommendations made in the all-party group’s report was that the level of the income requirement should be reviewed with a view to minimising any particular impacts on UK sponsors as a result of their region, gender, age or ethnicity, and that family migration rules should ensure that children are supported to live with their parents in the UK where their best interests require this. We certainly see no difficulty in having a review without prejudging what its outcome might be.

I want to raise a specific point about our Armed Forces. As I understand it, the Government have now decided that members of our Armed Forces posted or fighting for our country overseas should not be exempt from the new family migration rules. Perhaps the Minister could explain the thinking behind that decision, as it is in marked contrast to the Government’s decision, announced yesterday, of an exemption for members of our Reserve Armed Forces in respect of the employment tribunal qualifying employment period when pursuing claims for unfair dismissal on the grounds of reserve service.

It remains to be seen what the Government’s response will be to the findings in the report and the recommendations of the inquiry launched by the all-party group. However, it does not look as though the new rules in their present form and the way in which they are being applied are, to put it mildly, doing a great deal to strengthen and enhance family life in what is hardly an insignificant number of instances.

Immigration and Security

Lord Rosser Excerpts

Thursday 4th July 2013 Lords Chamber

[Lord Rosser]

My Lords, I, too, would like to extend my thanks to the noble Lord, Lord Marlesford, for securing this debate. We all have a direct interest in ensuring our national security. Indeed, the protection and security of our citizens is the number one priority for any Government. The Motion refers to the relationship between effective immigration controls and the interests of the security of the United Kingdom. I will largely confine my comments to that specific issue. Although opinions might vary as to what constitutes effective immigration controls, there must be question marks over the effectiveness of the current arrangements when judged against the criteria of their importance to national security and the maintenance of that security.

The issue of national security and, more particularly, border security was referred to in the Government’s 2011-12 Annual Report on the National Security Strategy and Strategic Defence and Security Review. The report said:

“Increased use of biometrics in support of asylum, visa and biometric residence permit applications provides tighter border controls to identify those who pose a threat to the UK”.

It went on to say:

“The use of technology and intelligence to check people and goods remains key to tackling the range of border security threats. Improvements in this area … include a continuing increase in coverage of routes and data acquired by e-Borders. Since April 2012, e-Borders acquires 100% of data for non-EEA flights. From 25th July 2012 … airlines required by law to provide data to e-Borders may be denied authority to carry to the UK specified foreign nationals who pose a terrorist threat”.

The annual report also referred to continuing work on the development of the Border Policing Command as part of the National Crime Agency, ahead of the formal creation of the NCA. No doubt if there is anything further of substance to report on this continuing work, the Minister will give us an update when he responds to this debate.

The splitting off of the Border Force from the United Kingdom Border Agency was announced by the Government in March last year. Since then, the performance of the agency appears to have deteriorated, with growing delays in dealing with asylum cases, visas and foreign criminals. Claims that the asylum backlog had been cleared lacked credibility, as the Government had simply written off some 100,000 cases without proper checks.

In March this year, the Government announced further changes to the border agency, splitting up its activities into two entities within the Home Office. What difference, if any, these further changes will make remains to be seen. The reality is that enforcement has got worse, visa delays have got worse and 50% fewer people are refused entry at ports and borders. The number of people absconding through Heathrow passport control has trebled, and the number being caught afterwards has halved. The number of foreign prisoners deported has dropped by 16% and there has also been a big drop in the number of employers being fined for employing illegal workers.

A recent Commons Select Committee report showed that following the Government’s splitting up of the border agency in March last year, there was a 20% increase in the backlog of asylum cases in three months, a 53% increase in the number of asylum cases waiting more than six months compared with the previous year, an increase in delays for some in-country visa applications compared with the previous three months and 59,000 cases not getting even as far as being entered on the database. The committee said that 28,000 visa applications were not processed on time in one three-month period. That means that two-thirds of visa applications were not processed on time.

What of course contributed to the difficulties was the impact and method of the implementation of the Government’s changes. The financial cuts of more than a third will certainly not have enhanced national security, which is an important part of the subject matter of this debate. There is immigration that works for Britain and immigration that does not. We support policies to bring down the pace of migration—particularly low-skilled migration—through stronger controls on people coming to do low-skilled jobs and action against bogus colleges. We need proper training programmes to help the young unemployed get into the sectors that are recruiting most from abroad—programmes such as Care First, which the Government abolished.

More needs to be done to cut illegal immigration. By definition, this can have an adverse impact on national security since the required checks and controls, however technologically advanced, cannot be undertaken. The Government’s net migration target is not targeting the right things. Much of the drop since the election comes because more British citizens are leaving the country and fewer are coming home. Most of the rest is accounted for by falling numbers of foreign students. The Government are targeting university students and entrepreneurs but ignoring illegal immigration, which is of course outside the target. Illegal immigration is getting worse, with fewer people stopped, more absconding, fewer deported and backlogs of information on cases not pursued. Illegal immigration is not exactly being deterred by the continuing exploitation of migrant workers, which also undercuts local workers. Stronger action is needed, which means national minimum wage regulations which can be made to stick, with better enforcement and higher fines, and a register to tackle rogue landlords.

Pulling out of the social chapter and co-operation on policing and justice measures, as the Government appear to want to do, will not make it any easier to manage and control migration, including illegal immigration. No one would wish to suggest for one moment that this Government, or indeed any Government, do not take their national security responsibilities seriously or fail to give this the highest priority. Effective immigration control is one of the building blocks that must be in place to ensure that as much as can reasonably and effectively be done to protect the security of our country and our citizens is being done. However, the reality is that the present arrangements are not as effective as they could and should be or indeed, in fairness, as effective as I imagine the Government want them to be.

EU: Justice and Home Affairs

Lord Rosser Excerpts

Wednesday 3rd July 2013 Grand Committee

[Lord Rosser]

My Lords, I, too, thank the Minister for introducing this debate and express my thanks to all who have participated with their considerable experience and knowledge—which I do not mind admitting is somewhat greater than mine—and not least my noble friend Lady Corston, who explained the work and views of her committee on certain key issues and referred to the code of practice. From current personal experience, I certainly share the view of the noble Lord, Lord Boswell of Aynho, on the difficulty of getting to grips with the detail of this report.

As the Minister said, this is the third annual report to Parliament on the application of Protocols 19 and 21 on the Schengen opt-out and justice and home affairs opt-in respectively. Once again, the reports arise from the previous Government’s commitment in 2008 to strengthen parliamentary scrutiny of the justice and home affairs opt-in, part of which was an undertaking to provide Parliament with and make available for debate an annual report that both looked ahead to the Government’s approach to EU justice and home affairs policy and forthcoming dossiers, including in relation to the opt-in, and provided a retrospective annual report on the UK’s application of the opt-in protocol. Annexe 1 of the report in front of us sets out all the JHA opt-in decisions and Schengen opt-out decisions taken from December 2011 until the end of November 2012. Annexe 2 outlines legislative proposals which are expected to be brought forward in the current year and will require a decision on UK participation under the justice and home affairs opt-in protocol.

One of the legislative proposals mentioned in Annexe 2 is the proposal for a regulation on the European Union Agency for Law Enforcement Co-operation and Training—Europol—about which, as has already been noted, we had a debate on Monday in the context of the European Union Committee’s report on the UK opt-in to the Europol regulation. At the end of the debate, the House agreed with the committee’s recommendation that the Government should exercise their right to take part in the adoption and application of the proposed regulation. Whether that will have any impact on the Government’s decision remains to be seen, since it is not unknown for internal party considerations to play a part in determining this Government’s approach to any matters European. The Minister told us on Monday that the decision on whether to opt in to the Europol regulation was “finely balanced”. Can he say which of our law enforcement agencies feel that we should not opt in to the regulation?

Annex 2 sets out a number of other proposed measures. Any specific update from the Minister on the situation in respect of some or all of those proposals would be helpful, in particular on whether any decisions have actually been taken. My noble friend Lady Smith of Basildon asked him, in the debate on the Europol regulation on Monday, how many measures were awaiting an opt-in decision by the Government and whether any have been delayed because of the decisions regarding the opt-out, to which reference has already been made.

There is one other issue I would like to raise from what was said on Monday. If memory serves me right, it was the noble Lord, Lord Hannay of Chiswick, who referred to a European surveillance order in which the Government do not have an opt-in or opt-out. They have simply failed to implement a piece of European legislation that they agreed to and which came into force throughout the European Union in December last year. What is the Government’s position on that order, which provides the possibility for someone who is subject to a European arrest warrant to be bailed in their own country?

The Government have sought to argue in this report that decisions taken in relation to the JHA opt-in and Schengen opt-out protocols are separate from the 2014 opt-out decision under Protocol 36 to the European Union treaties. However, that argument does not really hold water. As was pointed out in Monday’s debate, if the measure is a police and criminal justice measure that was adopted before the Lisbon treaty entered into force in 2009, deciding to opt in to that measure or a variation of it, or deciding not to opt in to a variation of it but to seek to influence it from the outside, would be completely nullified if we then decided to opt out of all those measures under Protocol 36. Perhaps the Minister will tell us which of the measures on which decisions were made to opt in between 1 December 2011 and 30 November 2012 as set out in Annexe 1 of the annual report would cease to apply to the UK if we made an opt-out decision under Protocol 36. Likewise, if we decided to opt in to all the proposals in Annex 2, or not opt in but seek to influence them from the outside, which of those measures would cease to apply to the UK if we made an opt-out decision under Protocol 36? If the Government decided to opt out under Protocol 36, no one knows which measures, including the European arrest warrant, we could subsequently get agreement to opt back in to or, if we could, on what basis or terms. All 130 measures were agreed by unanimity under a system where the UK had the veto, and not a single one of them was foisted on the UK against our will.

The noble Lord, Lord Boswell of Aynho, referred to the Europol regulation. I know it is only two days after the Minister was asked about it on Monday, but can he now clarify the Government’s position, including when the debate on the government Motion on the decision on the Europol regulation, postponed from today, will take place?

I shall conclude with a few specific questions on the report. On page 26, the Government have not opted out of parts of Schengen, such as the Schengen information system second generation. I understand that we will be connected in the fourth quarter of 2014. If we exercise the block opt-out, we will be leaving all pre-Lisbon parts of the Schengen acquis. What does that mean as far as the decision not to opt out of the Schengen information system second generation is concerned? On page 6, reference is made to the directive on the protection of the financial interests of the EU against fraud by means of criminal law. The report says that the Treasury will provide an update as soon as possible. If that has not already happened, when is it likely to happen?

Page 10 refers to the trade agreement between the EU and Colombia and Peru. I am genuinely not entirely sure what the current position is. Has that agreement been concluded? Was there an undertaking, as has been suggested to me, by the Government that there would be a vote in both Houses on the trade agreement between the EU and Colombia and Peru? Page 13 refers to passenger name record sharing with the USA to which the Minister referred in his opening comments. How is that operating and how effective is it proving to be? Page 16 refers to the asylum and migration fund. How would this be affected if we exercised the blanket opt-out? How much of an effect would an opt-out have on the UKBA’s resettlement activities?

Finally, page 23 refers to the confiscation of the proceeds of crime in the EU; once again, the Minister referred to this issue in his opening speech. Have any problems arisen subsequently as a result of not opting in? I appreciate that the Minister is unlikely to have all the information immediately to hand to respond to my detailed points; I mean that—I would be amazed if he did. However, I would nevertheless appreciate a response at not too late a stage.

Global Migration and Mobility (EUC Report)

Lord Rosser Excerpts

Thursday 6th June 2013 Lords Chamber

[Lord Rosser]

My Lords, like so many other speakers, I thank the noble Lord, Lord Hannay of Chiswick, and his colleagues for the work they have undertaken in producing this informative and thoughtful report. Migration and mobility is an issue that sometimes arouses heat and passion and not much else. However, as one would expect, the approach of this report to the issue is calm and measured.

The noble Lord, Lord Hannay, spoke about the four pillars of the global approach to migration and mobility and stressed the significance for addressing migration of improving the economies of the source countries outside Europe. He also drew attention to the fact that most irregular migrants in Europe are visa over-stayers. The Government have given their written responses to the recommendations in the report. During the course of this debate, questions have been raised about those responses, and one response in particular, including by the noble Lord, Lord Hannay of Chiswick, in opening the debate and introducing the report. It is of course for the Minister to respond to points made about the Government’s responses. It took the Government a couple of months to respond to the committee’s recommendations. It is a pity that it has taken just under twice that time since then to have this debate, although I noted the view of the noble Lord, Lord Hannay, that the delay might well be an example of every cloud having a silver lining in terms of topicality.

Our nation has benefited over a great many years from the contribution of immigrants, whether through building some of our major companies or, as has already been pointed out, sustaining our National Health Service and winning us Noble prizes. In a globalised economy, the importance of immigration will certainly not diminish, but it needs to be controlled and its impact needs to be fair for all. Diversity makes our country stronger, but we need to build common bonds, including more emphasis on speaking English and effective integration policies and approaches for communities. We need effective action to tackle exploitation of migrant workers, which also undercuts local people. That means stronger national minimum wage regulations, more enforcement with heavier penalties, and a register to tackle rogue landlords. Proper training programmes are required to help the young unemployed from the sectors that are recruiting most from abroad and should be doing more to train local people: programmes such as Care First, which the Government abolished.

We accept that the pace of migration, particularly low-skilled migration, has been too fast. We support policies to bring it down, such as stronger controls on people coming to do low-skilled jobs and action against bogus colleges. Pulling out of the Social Chapter and out of co-operation on policing and justice, as the Government appear to want to do, would, however, make it harder to manage European migration. We need proper co-operation with other European countries to make sure that migration is not abused. The new Schengen information system will share information on migrants travelling within the EU and will help to guarantee the authenticity of documents and help to identify illegal residents. So far, it seems that the Government are declining to sign up.

There is immigration that works for Britain and immigration that does not. More needs to be done to cut illegal immigration and more needs to be done, as has been said on umpteen occasions already today, to support universities recruiting international students who contribute to our economy. Legitimate higher education students should not be adversely targeted in government action to bring immigration down.

Real concerns have been expressed by parliamentary committees that government policy is putting at risk the benefits that university students bring to the economy, benefits which it is estimated run to some £8 billion with the potential to more than double in value by 2025. The concerns are that the growth in university students is being held back by government policies and the impression given out by those polices. Figures from the Higher Education Statistics Authority show that the number of non-EU first-year students at UK universities is down from 2010-2011. There is also a drop in postgraduate enrolments. One suspects that these reductions also reflect a drop in market share in this highly competitive field.

The Government’s net migration target is not targeting many of the right things. Well over 50% of the drop since 2010 comes from British citizens: more leaving the country and fewer coming home. Much of the rest is falling numbers of foreign students and entrepreneurs. Yet illegal immigration is outside the target, with fewer people stopped, more absconding, fewer deported and backlogs of information on cases not pursued. On top of that, student visitor visas have increased considerably under this Government, and the independent borders inspectorate has warned that they are open to abuse by bogus students actually coming here to work. Unlike full, tier 4 student visas, these visitor visas are not used by university students and are not counted in the net migration figures. However, I understand that they have increased by 30,000 in just two years.

Things such as illegal immigration and student visitor visas, which are excluded from the net migration figures, appear to be being overlooked by the Government as far as effective action and control are concerned even if they cause serious problems. Everything included in the net migration figures is treated the same, as the Government seek to bring the figure down, even though it is leading to a squeeze on university students to the potential detriment of Britain, and highly skilled global experts and entrepreneurs are adversely affected by the visa delays that deter or hold them back from coming—visa delays which certainly do not impede progress in bringing down the declared net migration figure. The system for legal migration needs addressing as it is subject to significant delays, including doubling visa delays and long waits for businesses, asylum seekers, spouses and families.

In its report the EU Committee says that it considers that flexibility by member states in the operation of the European labour market to legal migration from third countries, particularly in those with skills shortages, could be essential to securing economic growth and competitiveness. The report says that member states should continue to have the right to choose the number of migrants from third countries they wish to admit to their labour markets, depending on their needs. I do not think that that view will be contested, but it highlights the importance of our having fair, coherent and effective policies, processes and procedures for addressing the issues surrounding migration. Those policies, processes and procedures should not, in their application, have some continuing consequences contrary to Britain’s interests and they should address all the relevant issues, not just those aspects of migration and mobility which impact on a net migration target figure that has been set, while effectively ignoring or failing to address equally important aspects of migration and mobility which are not reflected in the net migration target figure. On the basis of those not unreasonable criteria, the Government are still some way short of where they ought to be.

Draft Enhanced Terrorism Prevention and Investigation Measures Bill: Joint Committee Report

Lord Rosser Excerpts

Tuesday 23rd April 2013 Grand Committee

[Lord Rosser]

My Lords, I add my thanks to the Joint Committee for its report on the draft Enhanced Terrorism Prevention and Investigation Measures Bill and express my thanks for the comprehensive and informative speech introducing the report from my noble friend Lord Plant of Highfield.

In a nutshell, the coalition Government decided that they did not like the control orders introduced in the interests of national security by the Prevention of Terrorism Act 2005. They therefore brought in the Terrorism Prevention and Investigation Measures Act 2011, which replaced control orders with something that was very similar in many respects, namely TPIMs or “control orders-lite”, but which had the key advantage from the Government’s point of view of having a different name.

However, the Government had to recognise that no longer having the full powers under the control orders, as provided for in the Prevention of Terrorism Act 2005, represented a potential threat to national security. As has been said, they were not prepared to address this reality in the original TPIMs Act because politically that would have weakened even further their argument that control orders should cease to exist. Instead they have prepared a separate Bill, the Enhanced Terrorism Prevention and Investigation Measures Bill, which has been the subject of consideration by the Joint Committee, and which the Government would seek to pass through Parliament as emergency legislation providing for additional restrictive measures in an ETPIM if they deemed that the circumstances demanded it.

The Minister will no doubt claim that ETPIMs are not the same as the control orders under the Prevention of Terrorism Act 2005, but frankly there is not a lot of difference. The words of the ACPO representative in giving evidence to the committee have already been quoted but he told the committee that, with ETPIMs,

“essentially we go back to the old control order regime ... the old regime was bedded in, and it worked very well”.

Those were apparently his words.

The Joint Committee gave its firm view on the Government’s approach to the draft Bill when it said:

“We can find no compelling reason for the decision to introduce these measures as a separate Bill at some unspecified time in unspecified circumstances. We find it odd that these measures were not included as an order-making power in the original TPIMs Bill where they could be subjected to fuller scrutiny in the course of normal Parliamentary business … The Government’s position that it will introduce this legislation at some future date in response to some unspecified emergency is an unfortunate and unwelcome decision”.

That issue has already been raised with the Minister, particularly by the noble Baroness, Lady Doocey.

In their response to the Joint Committee report, the Government have replied to the Joint Committee’s proposal for briefing a select group of properly vetted Members on the reasons for introducing this emergency legislation if the Government decided that had become necessary. Can the Minister say whether there has been any firming up of the Government’s position on that point, as set out in paragraph 5 of their response to the Joint Committee report?

The Joint Committee report states that in November last year there were nine people subject to TPIMs. It also quotes the Association of Chief Police Officers representative as telling the Joint Committee that,

“given the resource currently available”,

and the changes made to policing, the police,

“are adequately managing the risk posed by people subject to TPIMs at the moment”.

That is hardly a ringing endorsement of how things are working, bearing in mind that we are talking about people—the subjects of TPIMs—who are a threat to national security. The use of the phrase,

“given the resource currently available”,

suggests that ACPO thinks the resource currently available to undertake the job in the way it feels appropriate and needed is not all it might be. That is followed by the phrase,

“adequately managing the risk posed by people subject to TPIMs at the moment”.

In a Government who feel that schools deemed “satisfactory” by inspectors are not doing as well as they should, one must ask the Minister whether the Government feel that adequately managing the risk is good enough when national security is at stake? Why did the ACPO representative not feel able to say that they were either properly or fully managing the risk? Indeed, why did he not simply say they were managing the risk, without the less than enthusiastic addition of the word “adequately”?

As I understand it, an individual subject to a TPIM absconded at Christmas, allegedly in a black cab, and has not been caught. If that is broadly accurate, and the Minister may tell me otherwise, was that individual under surveillance, and was what happened an example of what is meant by “adequately” managing the risk? Until control orders were replaced by TPIMs, the individual in question had been the subject of a control order, and had been relocated outside London. Under the TPIM, the person was free to move to London, and it now appears he has absconded.

Would the noble Lord also say something about the cost of TPIMs? Is it true that a TPIM costs many times more than a control order to enforce? Is up to £18 million per annum per TPIM, a figure mentioned by the noble Lord, Lord Carlile, in his evidence to the committee, anywhere near the mark? If that figure is anywhere near the mark, has it been provided to the Metropolitan Police and does the money appear in their budget?

Enhanced terrorism prevention and investigation measures as provided for in this draft Bill are, as has been said, distinct from TPIMs, with the conditions the Government can impose being more stringent than under a TPIM. The independent reviewer of terrorism legislation said that “in most respects” the ETPIM Bill appeared to,

“replicate what was possible and generally imposed under control orders”.

It is intended that ETPIMs are introduced only in exceptional circumstances. It is clear from their response to the report that clarity on what is meant by “exceptional circumstances”—I think that was a point made by the noble Baroness, Lady Doocey, although she would not have used my words—will not be forthcoming from the Government. However, will the Minister say whether, under the draft Bill and in exceptional circumstances, an ETPIM could be deemed necessary if, at the end of the maximum period of two years for which a TPIM could be enforced, an individual covered by that TPIM was still regarded as a serious threat to national security? In those circumstances, could an ETPIM be imposed under the legislation being taken through Parliament? Would that be deemed “exceptional circumstances”?

I think that I am also right in saying that at least some, if not all, of those covered by TPIMs will cease to be so covered at the beginning of next year because the maximum period for which an individual can be subject to the terms of a TPIM, namely two years, will have come to an end for some, if not all, of those currently covered. What do the Government intend to do when the TPIMs in respect of those individuals cease by law to have effect. Presumably, if the Government no longer considered them a threat, the TPIMs would no longer be effective, so the fact that the TPIMs are still effective suggests that the Government still consider these individuals to be a threat to national security.

Are the Government saying that, by a happy coincidence, these individuals will cease to be a threat to national security on precisely the same day the TPIM ceases by law to have effect? If not, what do the Government intend to do? The Government must have made up their mind what action they would take, or what the options would be when the TPIM expired, when they made the decision that TPIMs in respect of an individual could not be effective for more than two years. If the Government are not prepared to answer that question today, when will they give an answer?

Coming back to what the Government mean when they say that an ETPIM would be introduced only in exceptional circumstances, the government Minister who gave evidence to the Joint Committee identified “multiple attacks” or a “really exceptional incident” as possible triggers for the ETPIMs Bill to be introduced. If that is the case, does it mean that an incident actually has to have occurred, with possible injuries or loss of life, before the emergency Bill would be introduced? Could the ETPIMs Bill be introduced in respect of an individual where there was activity which suggested an incident might be about to be perpetrated, or will we have to wait either until we are sure an incident is about to be perpetrated, or wait for someone to be quite possibly killed or injured in an incident before it was deemed that there were “exceptional circumstances” which justified the Bill being introduced? Apparently the independent reviewer of terrorism legislation told the Joint Committee that there would be no question of imposing an ETPIM on anybody unless the Home Secretary were persuaded that they,

“have been involved in terrorism”,

which could be interpreted as shutting the gate only after the horse has bolted. It would be helpful if the Minister could clarify this point and also how, if there are emergency “exceptional circumstances”, there will always be time to go through even a truncated parliamentary process—assuming Parliament was sitting—without putting national security at risk.

Clause 2 of the draft Bill sets out the conditions on which the Secretary of State must satisfy herself before imposing an ETPIM. One of those conditions is that the individual is, or has been, involved in terrorism-related activity, and that some or all of this activity is “new”. The definition of “new” is addressed in the Joint Committee’s report, but it would be helpful if the Minister could give us some examples from a government perspective of what would or would not constitute “new” terrorism-related activity in relation to the conditions on which the Secretary of State must be satisfied before imposing an ETPIM. It could presumably be the ETPIM itself and the conditions attached to it that were preventing the individual concerned from embarking on “new” terrorist-related activity. Could the reference to “new” activity mean that the ETPIM could not be extended or renewed because there was no evidence of new activity even though the reason there was no “new” activity was the existence and conditions already attached to the ETPIM? Perhaps the Minister could respond to this point, and the following comment in the Joint Committee report:

“As such, it is possible that under this legislation, at the end of a maximum two-year period, an allegedly dangerous, radicalised individual will be released without direct restrictions on their behaviour”.

What is the Government’s response to this point in view of the fact that it directly relates to national security?

The Government’s written response to the Joint Committee report did not do justice to all the serious points raised, and questions asked, in the report. My noble friend Lord Plant of Highfield and the noble Baroness, Lady Doocey, have raised a number of points and questions today, as have I. I hope that all these questions will receive a considered and thoughtful response from the Minister, since the House has a duty to challenge, question and hold to account the Government, in particular on matters that impact on national security.

--- Later in debate ---

I conclude by again thanking noble Lords for their involvement in this debate and reasserting that if and when the enhanced TPIM Bill is introduced, it would be for Parliament to decide whether exceptional circumstances exist to necessitate it becoming law.

[Lord Rosser]

If the Minister is about to close, is he able to address the question that I asked about what happens to those who are on TPIMs at present? I understand that at least some, if not all, TPIMs will come to an end at the beginning of next year. What is going to happen to them? I asked whether, if those people were still considered a threat to national security, the Government could seek an ETPIM in respect of them or whether they would fail to meet the criteria if they had not committed any “new” terrorist activity. I also asked whether, if someone is subject to an ETPIM, the Government envisage renewing it or extending it in any form because presumably, under their own definition, they could do so only if the individual had committed some “new” terrorist activity while under the EPTIM which, if the EPTIM was being effective, the individual would not have done.

[Lord Taylor of Holbeach]

I think that I can answer the noble Lord best by saying that all cases are reviewed properly. I gave a description in response to my noble friend Lady Doocey’s question about the disengagement of subjects from a TPIM order. The future conduct of individuals who have been subject to a TPIM or an ETPIM will be subject to review regarding the nature of the threat that they present to national security. That is how this legislation works in relation to the individuals who are subject to it.

I was going on to say, about the introduction of this draft Bill and the exceptional circumstances that might lead to its presentation to Parliament, that I am sure noble Lords will say that they hope that such circumstances never arise, that this diligent work conducted by noble Lords may not be necessary and that we do not face the exceptional circumstances that would mean that the Government were forced to present the Bill to Parliament. I thank noble Lords.

Crime and Courts Bill [HL]

Lord Rosser Excerpts

Monday 25th March 2013 Lords Chamber

[Lord Taylor of Holbeach]

I am afraid that I have to follow practice in this respect because I believe that advice given by law officers to the Government is always considered to be confidential. However, I have reported the substance of that advice to the House in this debate, and I hope that the noble and learned Lord will accept it.

I turn to the issue that the noble and learned Lord raised right at the beginning of our debate, before we even started considering Commons amendments. I understand his concerns about this matter but, as I made clear in my Statement to the House on 16 October last year in response to the review by Sir Scott Baker of UK extradition procedures, the Government wished to legislate as quickly as possible to introduce provisions on forum. We made that clear at the time.

The Government have worked hard, taking into account the views of prosecutors, to develop an approach which will be acceptable to Parliament and the public. The Official Opposition gave a relative welcome to these proposals when they were tabled in the other place, which I think shows broad acceptance that we have got these proposals right. If we were to remove these proposals from the Bill now, it would be a year or more before those facing extradition would see the benefit of this new and important safeguard. In light of these comments and the response I have given to this debate, I respectfully ask the noble Lord to withdraw his amendment and all noble Lords to support Commons Amendments 24, 25, 49 and 136.

[Lord Rosser]

My Lords, a number of questions and points on the impact of the forum were asked by the noble and learned Lord, Lord Lloyd of Berwick, in his powerful speech, by my noble friend Lord Dubs in his significant contribution and by me. I am not sure that they have all been fully answered. The case has been made that the proposed change in extradition arrangements will not speed up the process but will work the other way. I do not think that point has been fully addressed either.

This major change in our extradition arrangements is being taken through without full and proper consideration and without Parliament having the opportunity to test and challenge the case for the Government’s proposals or to reflect on the Government’s responses. Parliament is, frankly, being effectively bypassed on this important issue by the way that the Government have dealt with it and the lack of time they have given in tabling their amendments. We have not had the opportunity of considering the amendments in depth. I am afraid that is the reality; I do not honestly think the Minister can suggest otherwise.

I do not think all my questions on the deportation amendments have been answered either. I hope that, at least, the Minister will respond in writing to the unanswered questions and points raised on extradition and deportation in this brief debate. I ask him seriously to consider doing that because he has not responded to all the questions and points that have been raised, albeit that he has, I accept, responded to some of them. We note the Government’s position on our amendment. They have indicated that there will be scrutiny of how the arrangements work, albeit that they are not prepared to agree to an amendment to the Bill. However, I do not intend to pursue that matter any further.

[Lord Taylor of Holbeach]

Before the noble Lord sits down, he will know that it is always my wish to make sure that the House is informed on matters that may have been raised in debate. I undertake to write to him on these matters and will copy in other noble Lords who spoke in this debate.

Just to clarify the point I made about legal advice, because I do not want to get this wrong, I was correct in what I said. It is not the practice to publish legal advice, nor to confirm or deny that law officers’ advice has been sought in any case. These are matters of legal professional privilege and, as a non-lawyer, I defer to that privilege.

[Lord Rosser]

I beg leave to withdraw the amendment.

Amendment 24A (as an amendment to the Motion on Amendment 24) withdrawn.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I would be surprised if some Members of your Lordships’ House were satisfied with a report as infrequently as annually. The questions, rightly, will come quite often to my noble friend, as they have done over the years. I know that this is something that he holds close to his heart, as does Helen Grant. I note that the document published on Friday—which I, too, thought was shorter than expected—is headed Strategic Objectives for Female Offenders and does not purport to be a complete strategy.

Perhaps I may ask my noble friend one question which follows on from what the noble Baroness has just said. It concerns the effect on children of their mother’s imprisonment. I suppose that this is a plea to include that in the strategy. The developing knowledge about the effect on children of separation from their mothers is something that we should take very seriously, and no doubt we will be considering it in the Children and Families Bill. I hope that my noble friend can reassure the House that the whole-system approach which is referred to in the strategic objectives is a whole system that will extend in all the ways we know it should, and not just to the narrow punitive and personal rehabilitative aspects that we have mostly been talking about this evening.

[Lord Rosser]

My Lords, the Commons amendment seeks to strike out Part 7 of Schedule 15 to the Bill, which provided much-needed statutory provision for women offenders. Part 7 was successfully introduced into the Bill at Third Reading in this House but was subsequently struck out in Committee in the House of Commons without further debate.

The Government have just published their promised Strategic Objectives for Female Offenders setting out their priorities, and they have also announced the setting up of a new advisory board for female offenders chaired by a Home Office Minister which is intended to support the Minister,

“in providing strong leadership on delivery of our strategic priorities”.

However, these developments do not remove the need for statutory measures to ensure that the distinct needs of women in the justice system are prioritised and met. I understand that there have been 10 previous reports across the UK on the matter of women in the justice system, but none, it seems, has been implemented in full. In the light of the publication of their strategy but in the absence of any statutory backing, how will the Government ensure that all contracting areas in the new environment make provision that is appropriate to the particular needs of women, and how will the Government ensure that progress is sustained and built upon?

It is not clear why the Government do not want to take this legislative opportunity to deal more effectively with women who offend. To begin with, funding is not ring-fenced for service provision delivered by women’s centres or women’s services, and a number of them fear significant funding cuts or even closure. The inclusion in the National Offender Management Service’s Commissioning Intentions for 2013-14 of an intention that provision should take into account the “specific needs” of women offenders falls far short of any statutory guarantee of women-specific provision. There is evidence in recent research published by the Equality and Human Rights Commission that commissioning procedures and outcomes have already had a negative impact on the funding of women-only services, including services for women offenders and those at risk of offending. In the Strategic Objectives for Female Offenders the Government recognise that the,

“relatively small number of female offenders presents particular challenges”.

Unless there is statutory underpinning for women’s community provision, there is a risk that this will result in inadequate provision.

Provision for women offenders in the community is probably best described as patchy and its future uncertain. Unless and until the courts are confident that effective community penalties are available in their area then vulnerable women will continue to be sent to custody to serve short sentences for non-violent crimes. I know the figures are well known, but over half the women in prison report having experienced domestic violence and one in three has been sexually abused. Most women serve very short sentences, with 58% sentenced to custody for six months or less; and 81% of women entering custody under sentence had committed a non-violent offence compared with 71% of men. Women also account, as the noble Baroness, Lady Howe, has said, for 31% of all incidents of self-harm, despite representing just 5% of the total prison population.

The recent joint inspection report on the use of alternatives to custody for women offenders found a lack of women-specific provision for both unpaid work and offending behaviour programmes and noted that,

“women-only groups, where run, were often successful”.

It found that,

“women’s community centres could play an important role in securing a woman’s engagement in work to address her offending and promote compliance with her order or licence”.

At the moment, it looks as though government funding for the national network of women’s centres will be substantially reduced and that, for some, it may run out very soon. The future of the centres under payment- by-results commissioning is uncertain. Placing community provision for female offenders on a statutory footing will at least help to protect the vital role played by women’s centres and other local services in the effective delivery of community provision for women.

If the Government are not prepared to legislate now on this issue, do they have plans to do so at some stage in the future? It is not proposed changes in the provision of probation services or a changed landscape that is preventing the Government making statutory provision. That, frankly, is a red herring: a Government wanting to legislate would not be deterred by that issue. If the Government have no intention at all to legislate, then at least will a Statement be made each year to Parliament, as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, asked, on the progress being made towards improved provision for female offenders? That, surely, is the least the Minister can offer when he stands up to give his response.

[Lord McNally]

My Lords, I thank all noble Lords for their various contributions to the debate. It is very interesting that the noble Lord, Lord Rosser, said that there had been 10 previous reports and that the noble Baroness, Lady Howe, spoke about the various bits of information. It is not information that we need, nor reports or statutory commitments in a Bill. It would be very easy to accept it and go on just as before. Part of my problem with the interventions of the noble Lord, Lord Ramsbotham, is that he always seems to think that a new structure or reporting method would solve these things. As with the noble Lord, Lord Hurd, every women’s prison I have visited has depressed me profoundly; and yes, if you ask my opinion, at least half the women we have in our prisons should not be there. However, it is no use the other side making pious observations now they are in opposition. The fact is that they were in office for four years after the report of the noble Baroness, Lady Corston.

Immigration and Nationality (Fees) Regulations 2013

Lord Rosser Excerpts

Monday 18th March 2013 Grand Committee

[Lord Eatwell]

My Lords, I shall refer to the applications-in-person fees that the Minister mentioned in his introduction. The idea that an efficient service is being provided in this case will, certainly in Cambridge, generate hollow laughter. I refer him to the case of a colleague of mine who, as a tier 1 applicant in person, has made a consistent series of applications for a personal appointment in order to secure an extension of tier 1 permission in good time so that she can attend important international conferences that are fundamental to her career and to the performance of her high-quality services here in the UK. Despite numerous telephone calls, hanging on for over an hour on one occasion, she was unable to obtain an appointment for a month. However, she was offered an appointment by a person in Turkey for £3,000. The Minister referred to the abuses that there have been in respect of applications in person, but I ask him why we are imposing a fee of £375 on such applications in person when the person making a profit of £3,000 will regard this as a perfectly good bet.

Why are we not improving the service? One thing that the Minister did not mention in his entire presentation was value for money. The service provided is lamentable. The British public, and indeed people resident here from overseas, are not receiving value for money. He described the fees as competitive with other countries. So what? Why do we not provide a basic service?

Eventually my colleague got an appointment in Cardiff. She went there to have her permission to stay renewed. The UK Border Agency office in Cardiff was deserted, although she had not been able to obtain an appointment. The reason, of course, was that the appointments had been jammed up by those who were illegally making appointments in order to jump the queue, because of the sheer inefficiency of the border agency in managing this process. Can we not say about applications in person that within the UK, for people who as tier 1 applicants are so important for the future of our economy, we will provide a decent service, which we are not doing at the moment, instead of imposing a higher fee upon them?

[Lord Rosser]

My Lords, I thank the Minister for explaining the effect of the regulations in what appears to be more detail and greater depth than was the case with the Minister in the other place. However, I am sure he will be relieved to know that I still intend to be brief, despite his very thorough explanation.

As we know, the UK Border Agency first conducted a full public consultation on charging for immigration and nationality applications in 2006, and that consultation led to the principle being established that the UKBA should operate a flexible pricing approach to setting fees for immigration services, to take account of wider policy objectives while reducing the contribution made by the taxpayer. As the Minister said, the regulations that we are considering today, which are pursuant to the Immigration and Nationality (Fees) Order 2011, come into force on 6 April and replace similar regulations that have been effective since April last year. They set out the changed fees to be paid for immigration and nationality applications or services, which will also enable a significant part of the costs to be recouped.

We support the principles involved, including premium services that the Government intend to introduce. However, I am sure the Minister will wish to respond to the specific point made by my noble friend Lord Eatwell, which certainly deserves a considered response, about what appears to be a far from satisfactory situation.

Beyond that, I do not intend to say anything further about these regulations. I would simply comment that in the light of a recent Written Answer that I received from the Minister, it appears as though the Home Office might not be having as much success as it would wish in reducing or containing the number of orders and regulations in existence. I had understood that to be a government objective in pursuit of their objective to reduce what they have described as unnecessary regulation. No doubt at some stage in the future we will have the opportunity to consider that question in greater detail.

Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012

Lord Rosser Excerpts

Wednesday 5th December 2012 Lords Chamber

[Lord Palmer of Childs Hill]

My Lords, I welcome the thrust of the Motion of Regret from the noble and learned Lord, Lord Scott. It comes from someone who contributed five times during what became the Protection of Freedoms Act, so it is not a flash in the pan. I also look forward to the Minister’s detailed reply for the Government. I should like to make a point that to some extent has already been made: the point of substance in the noble and learned Lord’s Motion is to respect the rights of the citizen when considering DNA or fingerprint records, and I emphasise that.

Prior to the Minister’s comment, which the noble and learned Lord apparently welcomes, I would like to say that the Government have taken a big step forward in enacting the Protection of Freedoms Act 2012, which sets in place a system of deletion and destruction consistent with the Marper judgment, which has been referred to, and human rights obligations. It is clear to anyone who looks at how DNA records are apparently kept, though, that absolute care must be taken when dealing with the material. It is both highly personal to the individual from whom it is taken and an important tool in the detection of crime.

Time is needed, of course, to put in place the policies and procedures to give accurate effect to the legislation passed by Parliament. The DNA evidence from those who have been responsible for crimes and those who have not needs to be sorted, and I gather that that evidence is voluminous and there is a time element. I am happy, and I hope that the noble and learned Lord will be too, that the Government will, we hope, indicate that they will have the long-term position resolved by mid-2013, as I understand it—perhaps even sooner; that the updated Armed Forces policing regulations will follow; and that both will be delivered according to the timetable. I welcome the clarification that this Motion will, I hope, produce.

[Lord Rosser]

My Lords, unlike the noble and learned Lord, Lord Scott of Foscote, I do not have the advantage of knowing what the Minister is going to say in reply. Indeed, I did not even expect that the noble Lord, Lord Taylor of Holbeach, would be the Minister replying; I was under the impression that this was a defence issue.

The order that we are covering came into force on 30 October this year, just one month ago. It amends the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009 by providing that biometric data taken from someone being investigated for a service offence by service police can be retained for up to four years but no longer, unless within that period the person is convicted of the service offence. The Protection of Freedoms Act 2012 amended the Police and Criminal Evidence Act 1984 and introduced different rules and requirements for the retention of biometric data taken from arrested people. However, the Armed Forces are not covered by the Protection of Freedoms Act.

PACE also only applied to criminal investigations being conducted by the civilian police. However, under Section 113 of the 1984 Act the Secretary of State can by order apply certain provisions of the 1984 Act to investigations conducted by the service police. This was done in relation to the taking and retention of biometric data by way of the Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009, which has since been amended by the Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2011, and again by the 2012 order, which we are discussing now.

The 2011 order amended the 2009 order by increasing from two years to three the time limits that apply under that order to the retention of fingerprints, samples and impressions of footwear, and the 2012 order amends the 2009 order to allow material taken on or after 31 October 2009 to be retained for up to four years from the date on which it was taken, unless during that period the person is convicted. For material taken before 31 October 2009, the four-year period runs from that date.

It seems that the Government regard this 2012 order as a holding measure, as the intention apparently is to introduce a new order once the relevant provisions of the Protection of Freedoms Act 2012 have been brought into effect, and that that new order will broadly replicate for service personnel the 2012 Act’s provisions on retention of biometric data for civilians.

As the report from the Secondary Legislation Scrutiny Committee sets out, the changes that have been made and are still to be made to the Police and Criminal Evidence Act 1984 arose from a ruling in 2008 by the European Court of Human Rights that the relevant provisions in Part 5 of PACE were in breach of Article 8 of the European Convention on Human Rights. Those provisions in Part 5 allowed for the indefinite retention of fingerprints and DNA samples when there had been no conviction. As a result, Part 5 of the 1984 Act was amended by the provisions in Chapter 1 of Part 1 of the Protection of Freedoms Act 2012. However, those provisions in the 2012 Act are not expected to be commenced before mid-2013.

The purpose of the 2009 order, and subsequent amending orders in 2011 and now 2012, was, we are told by the Ministry of Defence, to make interim provision that would be compliant with the European Court of Human Rights ruling and allow the service police to retain material until Part 5 of PACE was amended. The Secondary Legislation Scrutiny Committee has commented that the practical effect of continuing to bring forward these orders, extending the period for which data can be held, is potentially to enable the material to be retained indefinitely. The order that we are now discussing means that the interim provisions will be in place for at least five years after the European court gave its judgment, and even longer if there is further delay in commencing the relevant provisions of the 2012 Act. The committee has also questioned whether successive statutory instruments with the practical effect of potentially allowing the indefinite retention of material taken by service police can be considered compliant with the European court’s judgment.

These are all points which deserve a considered response from the Minister. When he replies, perhaps he could also say why the relevant provisions of the Protection of Freedoms Act 2012 are not coming into force until at least the middle of next year. In Committee on the Protection of Freedoms Bill, the then Home Office Minister rejected our amendments providing for the retention of DNA and fingerprint profiles for six years, a longer period than that proposed by the Government and now incorporated in the terms of the Protection of Freedoms Act. We were told that there was a need for balance between public protection and individual freedoms, and that the Government considered that they had got the balance right and we had got it wrong. One would have thought that after that the Government would have made every effort to bring into effect the relevant provisions of the Protection of Freedoms Act as soon as possible, not to find themselves in a position where they are putting forward an order that specifically provides for the retention of biometric data for a longer time than the Government said struck the appropriate balance and rather nearer the time in years that we were arguing was appropriate.

Why was it not felt right to make provision within the Protection of Freedoms Act 2012 for matters relating to the investigation of service offences, at least in relation to the taking and retention of biometric data if not to other areas, to be brought within the terms of Part 5 of the Police and Criminal Evidence Act 1984? Presumably, the situation at the moment is that if a member of the Armed Forces is being investigated by the civilian police, the provisions of the 1984 Act apply to the investigation directly, but that if that same member of the Armed Forces is being investigated by the service police then the 2009 order—as amended by the 2011 and 2012 orders—applies. Is there any reason why it is essential that this distinction continues to apply in all instances?

We understand the reasons why the noble and learned Lord, Lord Scott of Foscote, has drawn this order to the attention of the House. Whether or not one believes that the Government’s decision on what specific action to take to meet the ruling of the European Court of Human Rights was appropriately balanced, it is still relevant to ask why it will be at least just over three years after taking office, and five years after the ruling, before the Government implement their decision on how to comply with a judgment with which they are not in disagreement.

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

My Lords, I thank all noble Lords who have spoken. It is not often that a Minister thanks a Member of this House for drawing the House’s attention to a statutory instrument by means of a Motion of Regret, but I do indeed thank the noble and learned Lord, Lord Scott of Foscote, for bringing this matter to the attention of the House. It gives me an opportunity to update the House on this important issue.

I am sure that the noble Lord, Lord Rosser, will know that I would not intend any discourtesy. I understood that the usual channels were informing the Opposition that I would take this Motion, as I am the Home Office Minister responsible for DNA.

[Lord Rosser]

I assure the Minister that I do not regard it as a discourtesy. I had not picked it up—perhaps I did not listen as hard as I should have—but I am very pleased to see the noble Lord at the Dispatch Box.

[Lord Taylor of Holbeach]

I thank the noble Lord.

Perhaps I may begin by saying that the Government are deeply committed to protecting the privacy and human rights of its citizens. At the same time, they are committed to maintaining an effective and powerful database that protects the public and reduces crime. To this end, as noble Lords have pointed out, they introduced the Protection of Freedoms Act to ensure that innocent people’s DNA and fingerprints are no longer held on databases.

As my noble friend Lord Palmer of Childs Hill pointed out, this is a complex matter, and so to get it right involves quite a lot of technical application and detail. I have been much engaged, in my short time in the Home Office, in trying to make sure that this is all in place. I am pleased to be able to say that the preparatory work required before implementing the Act is substantially complete. I have now received advice on the timelines of the implementation of the Act, and will announce the full details of this to the House within the next few days by way of a Written Ministerial Statement. However, it may help the House if I give some indication of the detail involved.

We anticipate that the elimination of the estimated 6 million DNA samples covered by the provisions of the Protection of Freedoms Act will begin this month, and will be completed by the end of May 2013. All other material covered by these provisions will be destroyed by the end of September 2013. As I say, I will be able to give fuller details of schedules to noble Lords in a Written Ministerial Statement which I expect will be made in the next few days.

There has been some confusion because this interim statutory instrument, laid by my noble friend and tabled through the Ministry of Defence, appears to contradict the thrust of government policy by extending the period of DNA retention. However, this is an interim measure, and I hope to be able to reassure my noble friend Lord Goodlad, whose work in scrutinising this legislation has perhaps prompted the noble and learned Lord, Lord Scott, to bring this Motion to the House. I hope to be able to assure him that a further statutory instrument in consequence of the commencement of these provisions will be tabled by the Ministry of Defence to bring its police powers in line with civil police powers.

I hope that noble Lords can see that this particular debate occurs at a critical point in the process. Over the next few months we will see the Government’s commitment translated into action by the destruction of this material, which is held on innocent people and should not be in the hands of government. With that, I hope that the noble and learned Lord will be able to withdraw his Motion.